Opinion
CIVIL ACTION NO. 4:00-CV-438-Y, (consolidated with CIVIL ACTION NO. 4:01-CV-1008-Y)
September 30, 2003
ORDER PARTIALLY GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
Pending before the Court are two motions for summary judgment: (1) motion filed by defendants Tom Shockley, J.A. Wallace, and Curtis Westbrook [doc. # 173-1] on February 28, 2003, and (2) motion filed by defendants Allen Hill and Gregory J. Crane [doc. # 179-1] on March 7, 2003. These defendants are all present or former police officers in the North Richland Hills, Texas Police Department ("NRHPD"). Having carefully considered the motions, responses, and replies, the Court finds that the defendants' motions for summary judgment should be PARTIALLY GRANTED.
I. RELEVANT BACKGROUND
The Court, in analyzing a motion for summary judgment, must view the facts in the light most favorable to the non-moving party. See Newell v. Oxford Management Inc., 912 F.2d 793, 795 (5th Cir. 1990).
Near 10:40 a.m. on December 15, 1999, members of the NRHPD SWAT team executed a "no-knock" search warrant on the residence of Barbara Jean and Troy Davis. Based on videotaped footage of the raid, Plaintiffs describe the raid as follows:
Specifically, the following NRHPD personnel: (1) Wallace, (2) Crane, (3) Rodney McCrory, (4) Bill Anders, (5) Filipe Carmichael, (6) Todd Carson Espy, (7) Hill, (8) Westbrook, (9) David Cullins, (10) K.L. Carr, (11) Tom Cleveland, (12) G.D. Stilley, and (13) Joseph Walley.
The validity of the issuance and execution of the search warrant is contested by the plaintiff's. The facts relating to the validity of the search warrant will be analyzed in section III.B., infra.
Defendant Hill and the rest of the Tactical Team deployed from the transport van, geared up, and then approached the Davis home from the west, starting two [to] three houses down the street from the Davis Home. The officers were wearing black uniforms with ski masks, and were paired into two man teams. The first two man team consisted of Officer McCrory and Officer Anders. Officer McCrory was responsible for breaching the metal storm door with the "Hooligan Tool", while Officer Anders was to "slam" and breach the front door of the residence immediately after the storm door was opened. The second two man team consisted of Defendant's Hill and Westbrook. Defendant Hill was the point person and the first to enter the Davis residence. Defendant Westbrook was the second person to enter the residence, and alleged that he made his observations of the shooting of Troy Davis from behind Defendant Hill.
At the time of the execution of the Davis Warrant, the Tactical Team entered the Davis home from bright sunlight into the darkened interior of the house. Troy Davis was shot twice by Defendant Hill within two seconds after the front door of the Davis home was bashed in by members of the Tactical Team prior to any announcement. At the time that the shots were fired by Defendant Hill, the third two man team was on the threshold of the front door of the Davis residence and entering the home.
(Pls.' Am. Resp. to Defs.' Mot. for Summ. J. ("Pls.' Resp.") at 35-36 (citations omitted).) It is undisputed that Hill fatally shot and killed Troy Davis within several seconds after entering the house. The circumstances under which he was shot, however, are hotly contested.
Plaintiffs claim that Troy Davis, unarmed, was shot in his living room and that some of the officers involved in the raid "planted" or contaminated evidence to make it appear that Troy Davis was a threat to Hill and the other officers. Defendants, on the other hand, claim that Hill, immediately after entering the house, found Troy Davis standing at the end of a hallway pointing a gun at Hill and that, consequently, Hill was justified in using deadly force to protect his own life and the lives of his fellow officers.
In the defendants' motions for summary judgment, defendants Shockley, Hill, Wallace, Crane, and Westbrook (referred to collectively as "the officer defendants") claim they are entitled to summary judgment on the basis of qualified immunity as to Plaintiffs' claims that the officer defendants violated Plaintiffs' rights under the Fourth and Fourteenth Amendments of the United States Constitution, actionable under 42 U.S.C. § 1983, by executing a no-knock warrant for the arrest and search of the residence of Barbara and Troy Davis; by using excessive force; and by planting evidence. The officer defendants also assert official immunity as to Plaintiffs' state-law claims. In addition, Shockley and Wallace claim they are entitled to qualified immunity as to the plaintiff's' claims for supervisory liability.
The original complaint in 4:00-CV-438-Y was filed by the following: (1) Estate of Troy Davis, by and through its independent administratrix Lisa Jean Davis, (2) Lisa Jean Davis, individually, and (3) Barbara Jean Davis. On April 23, 2001, the plaintiff's filed their Third Amended Complaint, which did not name Barbara Jean Davis as a plaintiff. The original complaint in 4:01-CV-1008-Y was filed by Barbara Jeans Davis. As a result of previous orders issued by the Court, the only remaining plaintiff's in this consolidated lawsuit are the Estate of Troy James Davis and Barbara Jean Davis.
II. STANDARDS OF REVIEW
A. Summary Judgment
Summary judgment is proper when the record establishes that no genuine issue as to any material fact exists, and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Hill v. London, Stetelman, Kirkwood, Inc., 906 F.2d 204, 207 (5th Cir. 1990). An issue is considered "genuine" if "it is real and substantial as opposed to merely formal, pretended, or a sham." Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001) (citing Wilkinson v. Powell, 149 F.2d 335, 337 (5th Cir. 1945)). Facts are considered "material" if they "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether an issue of material fact exists, the Court must first consult the applicable substantive law to ascertain what fact issues are material to the disposition of the case. Lavespere v. Niagara Mach. Tool Works, 910 F.2d 167, 178 (5th Cir. 1990).
The Court must review the evidence presented, viewing the facts and inferences drawn from those facts in the light most favorable to the nonmoving party. See Newell v. Oxford Management Inc., 912 F.2d 793, 795 (5th Cir. 1990); Medlin v. Palmer, 874 F.2d 1085, 1089 (5th Cir. 1989). The Court's function is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 249 (1986). Where the movant bears the burden of proof on a claim or defense, he must establish all elements of the claim or defense to prevail on summary judgment. Western Fire Ins. Co. v. Copeland, 651 F. Supp. 1051, 1053 (S.D. Miss. 1987), aff'd, 824 F.2d 970 (5th Cir. 1987).
When the moving party has carried its summary-judgment burden, the respondent "must do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). The respondent must produce evidence, not merely argument, in response to a movant's properly supported motion for summary judgment. See Foval v. First Nat'l Bank of Commerce, 841 F.2d 126, 129 (5th Cir. 1988); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).
"Because of the underlying purposes of qualified immunity, . . . summary judgment orders deciding qualified immunity questions [are reviewed] differently from other summary judgment decisions." Holland v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001) (citing Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 1995)). Once the defendant official asserts the qualified-immunity defense, the burden shifts to the plaintiff to satisfy the first two elements of the three-part qualified-immunity inquiry. See Holland, 268 F.3d at 1185-86; Bazan, 2465 F.3d at 489; Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997). If the plaintiff successfully satisfies these two elements, the "burden shifts to the defendant, who must prove 'that there are no genuine issues of material fact and that he . . . is entitled to judgment as a matter of law.'" Holland, 268 F.3d at 1186 (citing Medina, 252 F.3d at 1128).
In this case, the officer defendants seek summary judgment on the basis that they are entitled to qualified immunity for their actions against the plaintiff's. To the extent Plaintiffs seek money damages directly from the police officers for their actions taken under color of state law, the officer defendants may invoke their right to qualified immunity. See Hafer v. Melo, 502 U.S. 21, 26 (1991). Public officials performing discretionary functions enjoy immunity from suits for damages, provided 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). Because an official is entitled to immunity from suit, not merely from liability, immunity questions should be resolved at the earliest possible stage in the litigation. Hunter v. Bryant, 502 U.S. 224, 227 (1991).
When this Court is called upon to confer qualified immunity upon a government official accused of violating a federal constitutional or statutory right, the Fifth Circuit requires the Court first to employ a three-party inquiry. See Conroe Creosoting Co. v. Montgomery Cty., Tex., 249 F.3d 337, 340 (5th Cir. 2001). Initially, the Court must determine whether the complainant has actually alleged the violation of a federal constitutional or statutory right. See id.; Wilson v. Layne, 526 U.S. 603, 609 (1999). If the Court determines that he has, the Court must then decide whether, at the time of the alleged violation, that right was so clearly established that a reasonable government official in the defendant's situation would have understood that his conduct violated that right. See Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993). No prior case directly on point need be extant but, again, the official must have been able to understand that what he did violated a federal right. See Anderson v. Creighton, 483 U.S. at 640; Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079 (5th Cir. 1995). Finally, the Court must "determine whether the record indicates that the violation occurred, or gives rise to a genuine issue of material fact as to whether the defendant actually engaged in the conduct that violated the clearly established right." See Conroe Creosoting Co., 249 F.3d at 340; Morris v. Dearborne, 181 F.3d 657, 666 (5th Cir. 1999).
This second part of the three-part inquiry is often condensed into "objective reasonableness." Many cases, then, ask whether the accused government official's conduct was objectively reasonable. See, e.g., Conroe Creosoting Co., 249 F.3d at 340. Anderson seems to supply the intermediate language between the full and the condensed expression of this second part of the three-part inquiry: "Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action turns on the 'objective legal reasonableness' of the action . . . assessed in light of the legal rules that were 'clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635 (1987).
C. Section 1983 Claims
Section 1983 of Title 42 of the United States Code imposes liability upon "every person who, under color of state law or custom, subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." By its terms, section 1983 "creates a species of tort liability that on its face admits of no immunities." Impler v. Pachtman, 424 U.S. 409, 417 (1976). "Rather than creating substantive rights, § 1983 simply provides a remedy for the rights that it designates." Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1573 (5th Cir. 1989). In order to state a valid claim under § 1983, Plaintiff must "(1) allege a violation of rights secured by the Constitution or law of the United States and (2) demonstrate that the alleged deprivation was committed by a person [or entity] acting under color of state law." Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994) (citing West v. Akins, 487 U.S. 42, 48 (1988).
III. DISCUSSION
A. Section 1983 Claims Against the Individual Defendants in Their Official Capacities
With respect to the § 1983 claims against the individual officer defendants in their official capacities, the Court notes that suits against individual officials in their official capacities are treated as suits against the authority itself. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978). Because the City of North Richland Hills is also a defendant in this case, the official-capacity claims against the individual defendants are redundant. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Accordingly, the § 1983 claims against defendants Shockley, Hill, Wallace, Crane, and Westbrook in their official capacities should be dismissed.
For clarification purposes, the Court notes that individual-capacity actions (sometimes referred to as personal-capacity actions) "seek to impose personal liability upon a government official for actions he takes under color of state law." Kentucky, 473 U.S. at 165. Official-capacity suits, in contrast, "generally represent only another way of pleading an action against an entity of which an officer is an agent." Kentucky, 473 U.S. at 165 (citing Monell, 436 U.S. at 690 n. 55). "As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Id. at 166. With respect to defenses to liability, an official in a personal-capacity action may be able to assert personal immunity defenses such as qualified immunity. However, these defenses are unavailable in an official-capacity action. Id. at 166-67.
B. Claim for Unlawful Search and Seizure
1. Obtaining the Warrant
On December 15, 1999, Wallace obtained a search warrant for the residence located at 8240 Ulster Drive in North Richland Hills, Texas. An "Affidavit for Search and Arrest Warrant" ("Affidavit") was prepared and signed by Wallace containing information that he obtained from confidential informant ("CI") Chris Davis. The relevant portions
According to Tim Gilpin, who is employed with the NRHPD, "[a]t the time that Chief Shockley made the appointment of Andy Wallace as head of SIU and as Commander of the Tactical Team Andy Wallace had a reputation of conducting poor investigations and poor police work." (Aff. of Gilpin at 2; Pls.' App. at 1855; see also Aff. of Brown at 4; Pls.' App. at 1847.)
Apparently, in the late evening hours of December 14 or the early morning hours of December 15, Wallace first presented the signed affidavit to Judge Ray Oujeskey, Municipal Judge for the City of North Richland Hills. Judge Oujeskey refused to sign the warrant. As to his reasons for his refusal, Judge Oujeskey, in his October 14, 2002, deposition, stated:
A. The warrant that was presented to me that day was requesting that I determine probable cause for the warrant, based upon information that — in the four corners of the affidavit were being based upon a confidential informant.
And the type of information that was being given about the confidential informant was not the type that I was experienced with, from my training and my execution of prior warrants, to find probable cause based upon the information that was being given in the four corners of the document.
Q. Do you recall specifically what your concerns were about this — the use of this particular confidential informant by the City of North Richland Hills Police Department?
A. I do. We look for reliable information from a confidential informant on previous occasions. And as I was reviewing this — the warrant that was presented to me that day, the confidential informant that was being presented in the affidavit had not previously given reliable and credible information. . . .
. . . .
Q. Okay. Do you recall what, if anything, you told Sergeant Wallace regarding your concerns about the use of this particular confidential informant?
A. I asked him about the statement that was given. And for the purposes of this discussion, I'm going to assume that the warrant in front of me is the warrant that was presented to me that day.
The statement in paragraph B — paragraph 4B on page 2 stated that this informant has never given information to law enforcement agencies before, and I questioned that statement, in light of the fact that I was looking for a reliable and credible confidential informant.
And with that statement being there, it was obvious to me that the confidential informant could not have given reliable and credible information in the past that I could rely upon in order to find probable cause, and I did question that.
And that was the point where it was pointed out to me [by Wallace] in that same paragraph that they were relying upon the fact that the confidential informant had been a resident of Tarrant County, gainfully employed, and somewhat of the upstanding citizen — I'll call it the "upstanding citizen" qualification for an informant, which was what they were relying upon that day.
Q. Okay. Do you — do you recall telling, specifically Sergeant Andy Wallace of your concerns?
A. Yes. I did state that I was looking for a — for a confidential informant that had reliable and credible information previously.
And because that was not present in the warrant, I was having difficulty finding probable cause on the warrant.
. . . .
Q. Did you instruct [Wallace] to go forum shop [the warrant] at some other — to some other judge?
. . . .
A. I did tell him that based upon my finding and being unfamiliar with a standard other than reliable and credible information for an informant that I would certainly have no objection to him finding another judge to review the warrant.
Q. . . . Did you ask him — at the time that you had your conversation with him regarding this particular confidential informant, did you ask him, sir, to go back and do further work to ascertain or develop the credibility and reliability of this informant before he resubmitted that document to you, sir, the Davis warrant?
A. No.
(Oujeskey Dep. at 13-22; Pls.' App. at 1396-98.)
The Court notes that Oujeskey, in an affidavit dated December 18, 2002, states:
My deposition in the Davis case was taken October 14, 2002. Although I testified in that deposition that I seemed to remember Sgt. Andy Wallace coming to my home and presenting a warrant for my review, I have learned, from a review of my records, that that is incorrect.
Attached hereto is a copy of a fax which was sent to the Municipal Court where I am Municipal Judge. The fax was received on December 14, 1999, and, after reviewing it, I now recall that Sgt. Wallace did not come to my home, nor did he present an affidavit or warrant for my signature. He telephoned me on December 14, 1999 before the fax was received and we spoke again about the matter after I received the fax.
After reviewing the fax and discussing the matter, I advised Sgt. Wallace that I was not familiar with the standard he was utilizing in which there had been no previous dealing with the confidential informant. I now recall Sgt. Wallace asking if I would mind if he took this to a District Judge. I remember telling him that I did not, and to let me know what that Judge did, as I was interested in learning if this was a permissible standard. I have since learned that Sgt. Wallace was correct and that it is permissible to rely on information from an informant who has not previously supplied reliable information in another matter under certain circumstances.
(Oujeskey Aff. at 2; App. to Br. in Support of Defendants Shockley, Wallace and Westbrook's Mot. for Summ. J. ("SWW App." at 225.)
of the Affidavit are as follows:
That on December 14, 1999, your Affiant was contacted by a confidential informant (CI). This informant has never given information to a law enforcement agency before. However, the CI was arrested on a drug charge over 6 years ago and is familiar with the packaging and characteristics of MARIJUANA. That the CI has been a resident of Tarrant County for over 20 years and has been gainfully employed in Tarrant County for over 10 years. Further, that your affiant was able to verify that the CI has been a resident of Tarrant County for over 20 years and that he has been gainfully employed for over 10 years.
The CI stated that he/she knows a white male by the name of "Troy Davis", and his mother, "Barbara Davis" who are growing and concealing substantial quantities of MARIJUANA, within a residence located at 8240 Ulster Drive, North Richland Hills, Tarrant County, Texas.
That the CI stated that he/she has been inside the residence within the last (72) hours and observed both suspects's [sic] in possession of and growing a substantial quantity of a substance known to CI as MARIJUANA. Further, that the CI has observed Troy Davis in possession of several handguns currently kept inside the residence.
That the CI described the residence to your Affiant, as well as a vehicle: 1993 Red Ford Mustang Convertible, which is owned and driven by Barbara Davis. Further, your Affiant drove by and confirmed the address as 8240 Ulster Drive, North Richland Hills, Tarrant County, Texas, and observed the above-described vehicle in the driveway of the residence.
That your Affiant was able to identify Troy James Davis through the Texas Department of Public Safety. . . . Further, that a Criminal History check on Troy Davis revealed that he has been arrested for Assault and Weapons offenses.
That your Affiant was able to identify Barbara Lynn Davis through the Texas Department of Public Safety as having been issued Texas Drivers License #05853410, which further described Barbara Davis as a white female, born March 25, 1950, being 5'2" tall, weighing 105 pounds, having brown hair and brown eyes.
That your affiant conducted NRH computer checks on both Troy James Davis, [a]s well as Barbara Lynn Davis, and was able to verify that both suspects list 8240 Ulster Drive as their current home address. Further, that an MVD check on the red 1993 Ford Mustang, bearing TX LP #LZB-25V, revealed that the vehicle is registered to Barbara L. Davis at 8240 Ulster Drive, North Richland Hills, Texas.
Apparently Wallace, in the affidavit that he presented to Judge Oujeskey on December 14, 1999, also stated that he had performed "NRH computer checks" on both Barbara and Troy Davis. The plaintiff's claim that this statement was a lie, at least at the time he presented the affidavit to Judge Oujeskey, because the computer log books that are required by law to be kept indicate that Wallace did not actually run any NRHPD computer checks on Troy or Barbara Davis until December 15, 1999, at approximately 9:00 a.m. (SWW App. at 2108.) The plaintiff's note that "it is troubling that Defendant Wallace would submit the Probable Cause Affidavit and Davis Warrant to Judge Oujeskey the evening of December 14, 1999 and represent that these reports had been obtained and reviewed by him when they had not, according to the records required by law to be maintained by the NRHPD." (Pls.' Resp. at 13.) The plaintiff's further state that "[t]his behavior on the part of Defendant Wallace demonstrates a consciously indifferent attitude regarding the duty of candor that he owed to the court at the time that he presented the Davis Warrant to Judge Oujeskey. (Id. at 14.)
. . . .
Due to the CI observing several firearms inside the suspects, [sic] your Affiant requests a "no knock entry" be permitted in this instance, in order to reduce the risk of injury to officers and individuals at the said suspected place, and to further prevent the destruction of evidence upon the arrival of police officers. That the officers will be clad in distinctive police clothing and will announce their presence in clear and loud voice when entering said suspected place.
On December 15, 1999, Wallace presented the signed Affidavit to State District Court Judge Sharen Wilson, who authorized the search warrant.
There is no indication that Wallace informed Judge Wilson that Judge Oujesky had previously refused to sign the warrant. However, Wallace claims that before he presented the warrant to Judge Wilson, he telephoned Tarrant County Assistant District Attorney Rebecca Denham "to review [his] understanding for the standard for a search and arrest warrant based on information received from a concerned citizen, and whether further confirmation or substantiation was required." (Aff. of Wallace at 3; SWW App. at 3.) Wallace claims that Denham "confirmed [his] understanding that nothing further was required."] (Id.)
The plaintiff's allege that the issuance of the warrant violated their constitutional right under the Fourth Amendment to be free of unreasonable searches and seizures in that the warrant was not supported by probable cause justifying the issuance of a no-knock warrant. Specifically, Plaintiffs claim that Wallace deliberately or with reckless disregard for the truth included false and misleading information and omitted material information in the Affidavit to obtain the warrant and that Wallace unlawfully relied on information that he had obtained from Chris Davis, an unknown and unreliable source. (Pls.' Br. in Supp. of Resp. to Defs.' Mot. for Summ. J. ("Pls.' Br." at 7). The defendants assert that they are entitled to qualified immunity for Wallace's actions in obtaining the warrant.
Specifically, Plaintiffs allege seven instances where false or misleading information was contained in Affidavit or material information was omitted from the Affidavit: (1) that Barbara Lynn Davis, "W/F, 3/25/50" resides in and is in charge of the house that was to be searched, when in fact it was Barbara Jean Davis, Troy's mother, that resided in the house; (2) that Barbara Lynn Davis is the registered owner of a red 1993 Ford Mustang bearing Texas license plate no. LZB-25V, when in fact Barbara Jean Davis was the owner of the automobile (Pls.' Resp. at 16); (3) that the Affidavit was false or misleading because it stated that the Davises were growing "a substantial quantity of . . . marijuana" when, in fact, Chris Davis had only told Wallace that Troy Davis had 3 to 4 dead plants (Pls.' Resp. at 14); (4) that the Affidavit was misleading because it indicated that Troy Davis had been arrested for "Assault and Weapons offenses" but failed to state that the weapons offense was dismissed by the district attorney (which falsely implied that Troy Davis was a dangerous gun offender) and that the assault offense, which arose from a domestic dispute between Troy Davis and his sister, was also dismissed (Pls.' Resp. at 17-18); (5) that Wallace's statement that he verified the employment and residence status of Chris Davis is untrue because Wallace never met Chris Davis in person, and that verification of Chris Davis's information was based solely on biased information Wallace received from Robert Davis (Pls.' Resp. at 16-17); (6) that the Affidavit was misleading because it failed to state that the "CI" was a close relative of the suspect with a history of family discord; and (7) the Affidavit was misleading in that it failed to set forth "that at no time prior to the request for the warrant had any member of the NRHPD placed the house under surveillance or otherwise sought to confirm that the CI had in fact been in the residence." (Pls.' Br. at 8-9.)
(a) False, Misleading, or Omitted Information
Before the officer defendants may be stripped of their immunity from suit for the issuance of the search warrant, the plaintiff's must first have alleged the violation of a constitutional right. Search warrants must be supported by probable cause in order to satisfy the requirements of the Fourth Amendment. See United States v. Harris, 403 U.S. 573, 577 (1971). The Supreme Court has adopted a "totality of the circumstances" test in evaluating whether a search warrant is supported by probable cause. See Illinois v. Gates, 462 U.S. 213, 238 (1983).In the usual case, when a neutral magistrate issues a warrant, which requires a finding of probable cause, a presumption is raised that it was reasonable for the officers to believe that there was probable cause. See Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991). However, the reasonableness of a search and seizure can be undermined by a warrant application that contains material misstatements and omissions. See Hale v. Fish, 899 F.2d 390, 400-01 (5th Cir. 1990). In Franks v. Delaware, 438 U.S. 154, 171 (1978), the Supreme Court stated that an officer is liable for swearing to false (or omitted) information in an affidavit for a search warrant if the affiant knew the information was false or would have known it was false but for the affiant's reckless disregard for the truth, and the warrant would not establish probable cause without the false information. See also Hale, 899 F.2d at 400 (stating that the Supreme Court's holding in Franks also applied to omissions in the affidavit supporting the warrant).
The Court notes, once again, that the first step in performing a qualified-immunity analysis is always to determine whether the plaintiff has alleged a violation of a constitutional right. In some circumstances, such as in this case where the plaintiff's are alleging that their constitutional right to be free from unreasonable searches and seizures has been violated, the first step of the qualified-immunity analysis involves a reasonableness issue: Was the search and seizure unreasonable? The Supreme Court in Anderson v. Creighton and Saucier v. Katz, discussed infra, has made clear that this analysis is not to be confused or combined with the second step of the qualified-immunity analysis, which also contains a reasonableness issue: Was the right to be free of illegal searches and seizures so clearly established that a reasonable officer in the defendant's situation would have understood that his conduct violated that right?
In Anderson v. Creighton, 483 U.S. 635, 636-37 (1987), the Supreme Court held that a person is entitled to summary judgment based on qualified immunity if he can establish that a "reasonable officer could have believed that the search comported with the Fourth Amendment" even if the search was unreasonable under the Fourth Amendment. This concept was expanded in Saucier v. Katz, 533 U.S. 194, 197 (2001), in which the Supreme Court was addressing the issue of "whether the requisite analysis to determine qualified immunity is so intertwined with the question whether the officer used excessive force in making the arrest that qualified immunity and constitutional issues should be treated as one question, to be decided by the trier of fact." In Saucier, the Ninth Circuit Court of Appeals had set forth the objective-reasonableness test for evaluating whether a constitutional violation for excessive force had been alleged and then "concluded that the second step of the qualified immunity inquiry and the merits of the Fourth Amendment excessive force claim are identical, since both concern the objective reasonableness of the officer's conduct in light of the circumstances the officer faced on the scene." Id. at 199-200. In other words, the "Court of Appeals concluded that qualified immunity is merely duplicative in an excessive-force case, eliminating the need for the second step [in the qualified-immunity analysis] where a constitutional violation could be found based on the allegations." The Supreme Court rejected the Ninth Circuit's decision and held that a qualified-immunity defense must be considered in proper sequence and the first and second steps cannot be fused together even when both contain a reasonableness inquiry. Id. at 194-207.
To demonstrate a violation of their Fourth Amendment rights for purpose of negating the first prong of qualified immunity, Plaintiffs must satisfy three conditions: "they must have made an offer of proof supporting specific allegations of deliberate or reckless misrepresentation or omissions, as required by Franks; the alleged misrepresentations or omissions must be legally relevant (i.e., material) to the probable-cause determination; and there must be a genuine issue of fact about whether the magistrate would have issued the warrant on the basis of 'corrected affidavits.'" Velardi, 40 F.3d at 574; see also Magnotti v. Kuntz, 918 F.2d 364, 368 (2d Cir. 1990) (stating that the Franks standard, which was established with respect to suppression hearings in criminal proceedings, "has been extended to the civil liability context"). It is not sufficient for the plaintiff's to allege that the officer defendant was merely negligent or made an innocent mistake. Id.; see Hart v. O'Brien, 127 F.3d 424, (5th Cir. 1997) abrogation on other grounds recognized by Spivey v. Robertson, 197 F.3d 772, 775 (5th Cir. 1999) (citing Kalina v. Fletcher, 522 U.S. 118 (1997). Recklessness may be inferred, however, if the omission of facts in an affidavit is "clearly critical" to a finding of probable cause. See United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986); United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980).
In the context of a motion for summary judgment, whether a misrepresentation or omission is material is a mixed question of law and fact. See Golino, 950 F.2d at 871 (2d Cir. 1991). "The legal component depends on whether the information is relevant to a given question in light of the controlling substantive law." Id. The weight that a magistrate would have most likely given such information is a fact question that is best left to the fact finders in doubtful cases. See Golino, 950 F.2d at 871-72; see also TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 450 (1976).
Nevertheless, if the evidence, viewed in the light most favorable to the plaintiff's, discloses no genuine dispute that a magistrate would have issued the warrant on the basis of the "corrected affidavit," then under the ordinary standard for summary judgment, a qualified-immunity defense must be upheld. See Scares v. Connecticut, 8 F.3d 917, 921 (2d Cir. 1993). In other words, disputed issues of fact are not material if a "corrected affidavit" would have supported a finding of probable cause. Id. at 920.
The Court notes that the plaintiff's have argued, throughout their response and corresponding brief, that the false and misleading information that Wallace included in the Affidavit and the omitted material that Wallace left out was very critical to the magistrate's decision to authorize a "no knock" search warrant. Specifically, the plaintiff's state:
Typically, decisions to execute search warrants by means of a no-knock entry are made by officers at the scene, who are charged with justifying the exigent circumstances upon which they rely in determining to make a no-knock entry. In the instant case, Wallace relies instead on the decision of the magistrate, Judge Sharon Wilson, to issue a warrant which by incorporation of the probable cause affidavit, implicitly authorizes such a no-knock entry. For this reason, the factual information submitted by Wallace to Judge Wilson, including the asserted false, misleading, and omitted information and the reliability of its source, becomes relevant not only to the issue of probable cause but also to the decision by Judge Wilson to approve the no-knock entry requested by Wallace.
(Pls.' Br. at 7-8.) Because the Court, in section III.B.2, infra, concludes that Wallace was entitled to qualified immunity for the execution of the no-knock warrant, for the same reasons the Court concludes that Wallace is entitled to qualified immunity for obtaining the no-knock warrant.
With respect to the false identification information contained in the Affidavit, Wallace does not dispute that the Affidavit did not correctly identify or contain the proper information concerning Barbara Jean Davis as one of the alleged "suspects." Even assuming that there is evidence that defendant Wallace intentionally or with reckless disregard included the false information relating to the identity of Barbara Lynn Davis in the Affidavit, there is no question that the judge would have issued the warrant based on "corrected affidavits." The Court concludes that if the false information concerning Barbara Lynn Davis were disregarded and the correct information concerning Barbara Jean Davis were inserted, the affidavit would be sufficient to support a finding of probable cause to issue the no-knock warrant. Regardless of the identity of any Barbara Davis, the truthful statements regarding the alleged drug activities of Troy Davis at the same residence provided independent probable cause to issue the no-knock warrant. See Hale, 899 F.2d at 400.
Wallace admits that he "dropped the ball" and made a mistake in misidentifying Barbara Lynn Davis when he intended to identify Barbara Jean Davis. (Wallace Dep. at 34-39.)
With respect to the allegedly false information in the affidavit that there was a "substantial" amount of marijuana "growing" in the Davises' residence, the Court notes that there is no evidence that Wallace intentionally or recklessly included such information in his Affidavit. In fact, the Court is not convinced that the words "substantial" and "growing" are even false or misleading based on the information that Wallace had obtained from Chris Davis.
The plaintiff's argue that Wallace's use of the term "substantial" was intentional or reckless because he repeatedly used this term in other probable cause affidavits to obtain no-knock warrants. (Pls.' Br. at 15-16.) The Court disagrees.
Chris Davis, in his deposition, testified that he told Wallace in their first phone conversation that he had seen 12 or 13 marijuana plants that were approximately 18 inches tall in the Davises' residence in early November and that they were "pretty much dying." (Chris Davis Dep. at 104, 117-18, 129-33.) Chris Davis also stated that he told Wallace that he had seen, in December, four or five dying marijuana plants that were approximately 2 to 2 1/2 feet tall. (Chris Davis Dep. at 132-33; 106-07.)
Wallace, in his deposition, testified that Chris Davis told him that there were "five to six three-to-four foot tall marijuana plants" in the Davises' residence. (Wallace Dep. at 75.) He also stated that Chris Davis told him that the plants "weren't doing well", not that they were dying. (Wallace Dep. at 78.) The inconsistencies are minor and without legal significance.
Even assuming that using the words "substantial" and "growing" was false or misleading and that Wallace intentionally or recklessly used these words in the Affidavit to mislead Judge Wilson, the Court concludes that this misrepresentation was not material to the probable-cause determination or the issuance of a no-knock warrant. After all, the word "substantial" is quite general as to amount and, again, is not necessarily in conflict with the truth. And Judge Wilson almost surely relied very little on these two terms when issuing the no-knock warrant. There being no prohibition against the issuance of a search warrant if only three to four dying marijuana plants are expected to be found, there is no genuine issue of fact about whether the judge could have lawfully issued the warrant if in the Affidavit the words "three to four dying marijuana plants" were substituted for the words "substantial" and "growing."
With respect to the failure to inform that the assault and weapons charges against Troy Davis had been dismissed, there is no evidence, beyond Plaintiffs' conclusory statements, that Wallace intentionally misrepresented this information. Although the evidence indicates that Wallace could have discovered that the charges had been dismissed if he had done additional research, the plaintiff's have failed to come forth with any legal requirement that he do so. In addition, the Court concludes that the omission of the fact that the charges against Troy Davis were dropped by the district attorney was not "clearly critical" to the finding of probable cause for several reasons. First, Wallace clearly indicated in his Affidavit that Troy Davis had been "arrested for Assault and Weapons offenses." (Pls.' App. at 182 (emphasis added).) This statement is true and accurate and does not indicate that Troy Davis was, in fact, convicted of such charges. Furthermore, even assuming that the omission of the dismissal of the charges was "clearly critical" to the finding of probable cause, the Affidavit, if supplemented to include the omitted information, would still provide probable cause for the issuance of the search warrant because of the other statement indicating that Troy Davis possessed firearms.
The plaintiff's allege that "Wallace either failed to perform the research into this charge to figure out the basis of the allegations, and its disposition, or, if known to him, knowingly excluded this information in order to falsely make Troy Davis appear to be more dangerous to the magistrate at the time that he was attempting to get the warrant issued." (Pls.' Resp. at 18.)
The Affidavit also stated that "the CI has observed Troy Davis in possession of several handguns currently kept inside the residence." (Pls.' App. at 182.)
With respect to Wallace's alleged misrepresentation that he had verified Chris Davis's employment and length of residence in Tarrant County, the Court concludes the representation was not false because Wallace had, in fact, verified the information through Robert Davis. (Wallace Dep. at 71-74; Pls.' App. at 71-74.). In addition, it is unreasonable to assume that Judge Wilson placed much weight on this statement in determining that there was probable cause to issue the warrant. See United States v. Queen, 732 F. Supp. 1342, 1349 (W.D.N.C. 1990) (stating that a false "boiler-plate" statement in an affidavit for a search warrant stating that the officer "has checked the above information confirming the same and found it to be true and accurate" was not a material falsehood and it was "unreasonable to assume that the state magistrate placed a great deal of weight on this statement.) Based on the foregoing, the Court concludes that Plaintiffs have not demonstrated that Wallace violated their Fourth Amendment rights by intentionally placing false or misleading information in the Affidavit used to obtain the search warrant.
With respect to Wallace's omission of information indicating that (1) the "CI" was a close relative of the suspect, (2) the family had a history of feuding, and (3) at no time prior to the request for the warrant had any member of the NRHPD placed the house under surveillance or otherwise sought to confirm that the CI had in fact been in the residence, there is no evidence Wallace deliberately omitted this information in an attempt to mislead Judge Wilson. Even assuming that there is such evidence, the Court concludes that there is no genuine issue of material fact that the judge would have issued the warrant even if these facts were included in the warrant.
See, e.g., Hale, 899 F.2d at 399-400; United States v. Phillips, 727 F.2d 392, (1984) (stating that a wife's detailed information and close association with the defendant was sufficient to support a finding of probable cause based on her affidavit because the uncertainty regarding the wife's veracity as an informant could be compensated for by a strong showing of "basis for knowledge").
In further support of their claim that Wallace is not entitled to qualified immunity for obtaining the search warrant, the plaintiff's argue that Wallace may have had undisclosed motives for obtaining the warrant. Specifically, the plaintiff's state:
Former officers of the NRHPD have asserted that Defendant Wallace and the NRHPD administration of Defendant Shockley was under pressure to justify the expense within the NRHPD for the creation of SIU, which had occurred immediately following Defendant Shockley's selection by City Manager Cunningham as Chief of Police, and that Defendant Wallace rushed out this warrant in order to obtain publicity and notoriety for SIU and the Tactical Team.
(Pls.' Resp. at 20.) In addition, the plaintiff's argue that Wallace should have disclosed to Wilson that Oujeskey had refused to sign the warrant.
Even assuming that these allegations are true, the Court once again concludes that such information, even if known to Judge Wilson, would not have changed her probable-cause determination to issue the no-knock warrant. First, an officer's underlying motives behind obtaining the warrant are irrelevant as long as there is probable cause to support the issuance of the warrant. Furthermore, it is clear from Judge Oujeskey's testimony that the reason he refused to sign the warrant was because he was unfamiliar with the law in this area. In addition, although the plaintiff's claim otherwise, the Court finds nothing sinister about Wallace's taking the affidavit to another judge, especially since Oujeskey expressly told Wallace that he could do so.
(b) Reliability of Confidential Informant Chris Davis
An officer can lose his "shield of immunity" if he swears to a warrant affidavit that is "so lacking in indicia of probable cause as to render official belief in its existence unreasonable." Malley v. Briggs, 475 U.S. 335, 344-45 (1986); see Anderson, 483 U.S. at 644-45 (applying Malley to unconstitutional searches). "The question in qualified immunity . . . is not whether the officers actually had probable cause, but rather whether they acted recklessly in swearing a warrant based on the information they possessed." Hart, 127 F.3d at 445.
With respect to whether the plaintiff's have demonstrated a constitutional violation, the Court concludes that they have. They have alleged that Wallace obtained a search warrant that was not supported by probable cause when, without doing his own independent investigation, he relied on the information from Chris Davis, an unknown and unreliable source. The next issue is whether the law was clearly established in December 1999 that it was unlawful for Wallace to swear to an affidavit based on the information he had obtained from Chris Davis, without doing more independent investigation and corroboration of facts.
The law as of December 1999, detailing exactly how much and what type of independent corroboration an officer needed to make in order to reasonably believe that he had probable cause to obtain a search warrant, is somewhat confusing. In Illinois v. Gates, the Supreme Court adopted the "totality of the circumstances" test in evaluating whether an informant's tip establishes probable cause for issuing a search warrant. The Court stated that "the task of the magistrate was to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of the persons supplying hearsay information, there was a fair probability that the contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 213. Specifically, the Court stated:
If, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip. Likewise, if an unquestionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him to criminal liability — we have found rigorous scrutiny of the basis of his knowledge unnecessary. Conversely, even if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case.Id. at 233-34 (citations omitted).
Furthermore, in United States v. Drew, 436 F.2d 529, 599 (5th Cir. 1970), the Court of Appeals for the Fifth Circuit held that a judge can consider to what extent an informant's information is corroborated by police in determining whether probable cause exists. Several years later, that Court indicated that such corroboration can relate to non-criminal activity and innocent facts. See United State v. Phillips, 727 F.2d 392, 399 (5th Cir. 1984) (stating that details about innocent facts will strengthen a confidential informant's veracity); United States v. Lalor, 996 F.2d 1578, 1581 (4th Cir. 1993) ("Corroboration of apparently innocent details of an informant's report tends to indicate that other aspects of the report are also correct").
The Court of Appeals for the Fourth Circuit, however, in United States v. Wilhelm, 80 F.3d 116 (4th Cir. 1996), held that a search warrant that was based on information from an anonymous informant was not supported by probable cause where the affidavit provided no indication of the informant's truthfulness or reliability besides the officer's conclusory description of informant as a "concerned citizen" and a "mature person" and the officer only corroborated that the directions that the informant gave to the defendant's home were correct. In addition, the Court in United States v. Mendonsa, 989 F.2d 366, 369 (9th Cir. 1993), also stated that the "mere confirmation of innocent static details is insufficient to support an anonymous tip." The Court indicated that the mere fact that a suspect lives at a particular location or drives a particular car does not provide any indication of criminal activity. See United States v. Gibson, 928 F.2d 250, 253 (8th Cir. 1991) (stating that the corroboration of "innocuous details" from the information given by the anonymous tipster did not amount to probable cause to issue a search warrant) (emphasis supplied).
From a review of the law as of December 1999, it is unclear exactly how much independent corroboration an officer must have made when relying on a tip from a first-time, relatively unknown (although not anonymous) informant in order to establish probable cause for the issuance of a search warrant. It is also unclear whether the independent corroboration could have been of innocent facts, such as where the alleged suspect resided, or whether the officer must have undertaken more substantial investigation. Based on the case precedent, this Court concludes that the law was not clearly established in December 1999 that Wallace, in obtaining a search warrant, could not rely on the information that he received from Chris Davis and on his independent corroboration of innocent facts.
Furthermore, even if the Court were to find that the law was clearly so established in December 1999, the Court concludes that a reasonable officer in Wallace's position would have believed that it was not unlawful to obtain a search warrant based on the information provided to him by Chris Davis. Although Wallace never met Chris Davis in person, he independently corroborated the location of the residence, the location and description of the car, and the fact that Troy Davis and Barbara Davis listed 8240 Ulster Drive as their current address. In addition, Chris Davis gave Wallace detailed information concerning a description of the inside of the residence, the location of the marijuana, and the amount of marijuana present in the residence. Furthermore, Chris Davis indicated that he had been in the Davises' residence within the last 72 hours, observed both suspects in possession of and growing marijuana, and gave a description of the residence and the vehicle in front of the residence. Wallace also obtained information from Robert Davis that further corroborated Chris Davis's information. Thus, the Court believes that Chris Davis's "story and the surrounding facts possessed an internal coherence that gave weight to the whole;" thus, the Court concludes that a reasonable officer would have believed that probable cause existed to obtain a search warrant. See Massachusetts v. Upton, 466 U.S. 727, 734 (1984) (per curium); see also Gates, 462 U.S. at 234. Based on the foregoing, the Court concludes that Wallace is entitled to qualified immunity on the claim that, by relying on uncorroborated and unreliable information in order to obtain a search warrant, he violated Plaintiffs' Fourth Amendment rights.
An "informant's information is considered reliable if the informant speaks with personal knowledge." Abrue-Guzman v. Ford, 241 F.3d 69, 74 (1st Cir. 2001) (in the context of an arrest warrant); see United States v. Cochrane, 896 F.2d 635, 641 (1st Cir. 1990).
The Court notes that the information in the affidavit concerning Barbara Lynn Davis was a mistake, but that Barbara Jean Davis did in fact live at the residence.
As noted by one Court:
[T]here is no requirement that police officers rule out all possibility that a complaining witness has fabricated an elaborate story simply to have the police raid an unsuspecting person's house. Nor is there any requirement that the police officers attempt to prove by independent evidence that [here, Chris Davis's] story is accurate beyond all doubt.Queen, 732 F. Supp. at 1360.
With respect to the other officer defendants, "for purposes of section 1983 immunity, an officer is entitled to assume the validity of a search warrant secured by fellow officers." Morris v. Tehama Cty., 795 F.2d 791, 795 (9th Cir. 1986); see Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 568 (1971); Bennett v. Grand Prairie, TX., 883 F.2d 400, 408 (5th Cir. 1989). Because there is no evidence that any of the other officer defendants were involved in obtaining the search warrant or had any knowledge of the facts surrounding the issuance of the search warrant, they are entitled to summary judgment with respect to such claims. See Morris, 795 F.2d at 795; Whiteley 401 U.S. at 568 (1971) (holding that police officers called in to aid in execution of arrest warrants are entitled to assume the validity of probable cause).
2. Execution of the Warrant
Plaintiffs complain that the execution of the search warrant was unconstitutional because the authorization in the warrant for a no-knock entry was "obtained through deliberate or recklessly false information and omitted information, and based on information from an unreliable source." (Pls.' Br. at 7-8.)
The relevant portion of the search warrant states:
WHEREAS the Affiant whose signature is affixed to the affidavit attached hereto is a peace officer under the laws of the State of Texas, and did hereto for [sic] this day subscribe and swear to said affidavit before me (which said affidavit is by this reference incorporated herein for all purposes), and whereas I find that the verified facts stated by the Affiant in said affidavit show that the Affiant has probable cause for the belief he expresses therein and establishes the existence of proper grounds for the issuance of this warrant.
(Pls.' App. at 185.)
The Affidavit, in turn, states:
Due to the CI observing several firearms inside the suspects [sic], your Affiant requests a "no knock entry" be permitted. . . . [T]he officers will . . . announce their presence in clear and loud voice when entering said suspected place.
(Pls.' App. at 183.)
Furthermore, in her affidavit, Judge Wilson states that it was her belief that she was issuing a "no-knock" search warrant. (Wilson Aff. at 2.)
Again, the first issue in determining whether the officer defendants are to be denied qualified immunity is whether Plaintiffs have demonstrated a violation of a constitutional right. The common law knock-and-announce rule forms an integral part of the reasonableness inquiry into a search and seizure under the Fourth Amendment. See Wilson v. Arkansas, 514 U.S. 927, 930 (1995). Before searching and seizing a residence or other dwelling, officers must knock and announce their presence unless they can establish the reasonableness of an unannounced entry. See Wilson, 514 U.S. at 934-36; see also United States v. Jones, 133 F.3d 358, 361 (5th Cir. 1998). However, the "knock-and-announce requirement could give way 'under circumstances presenting a threat of physical violence,' or 'where police officers have reason to believe that evidence would likely be destroyed if advance notice were given.'" Richards v. Wisconsin, 520 U.S. 385, 391 (1997) (citing Wilson v. Arkansas, 514 U.S. at 936 (1995)).
The Supreme Court has phrased the "no-knock entry" test as follows:
In order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard — as opposed to a probable-cause requirement — strikes the appropriate balance between the legitimate law-enforcement concerns at issue in the execution of search warrants and the individual privacy interest affected by no-knock entries.Richards, 520 U.S. at 394.
In this case, Plaintiffs have demonstrated, prima facie, a violation of a constitutional right with evidence that the defendant officers executed a "no-knock" search warrant under circumstances not authorized under the Fourth Amendment. In addition, the Court concludes that the law regarding "no-knock" warrants was clearly established in December 1999.
Thus, the issue is whether reasonable officers in the officer defendants' position would have concluded that their conduct was unlawful in light of the clearly established law. See Morris, 795 F.2d at 795 (stating that as long as the officers executing the search warrant reasonably believe their actions to be lawful, they are protected by qualified immunity). In other words, as long as it was objectively reasonable for the officer defendants to believe that there was a threat of physical violence or that evidence would be destroyed if advance notice was given, then they will be entitled to qualified immunity. However, law enforcement officers may lose such immunity if they execute the warrant in an unreasonable manner. See Turner v. Raynes, 611 F.2d 92, 93 (5th Cir. 1980) Duncan v. Barnes, 592 F.2d 1336, 1338 (5th Cir. 1979).
An analysis of whether a Fourth Amendment violation has occurred is to focus on "'an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,' . . . and not on the officer's actual state of mind at the time the challenged action was taken." United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987) (quoting Scott v. United States, 436 U.S. 128, 136, 138-39 (1978)).
In this case, Wallace had received information from Chris Davis, as stated in the Affidavit, that Troy Davis had several firearms inside his residence. In addition, Wallace and Chris Davis both indicate in their depositions that Chris Davis told Wallace that Troy Davis previously had answered the door with a loaded gun. (Wallace Dep. at 64; Chris Davis Dep. at 114-15.) Furthermore, Wallace had information, which was included in the Affidavit, that Troy Davis had previously been arrested on assault and gun charges, albeit those charges were eventually dismissed. Based on this information, it was not unreasonable for the officers to have believed that there was a threat of physical violence if they knocked and announced their presence prior to entering the residence.
The parties dispute whether it was objectively reasonable for the officers to believe that the Davises would try to dispose of the marijuana plants if they knocked and announced their presence. Regardless of the proper disposition of the destruction-of-evidence issue, the Court concludes that the possibility that the officers would encounter Troy Davis in actual possession of a gun, based on information they had received, made the no-knock entry objectively reasonable.
In this case none of the officers, other than Wallace, were involved in obtaining the search warrant. Because the plaintiff's have not presented any competent summary judgment evidence that the other officer defendants did not act reasonably in executing the no-knock search warrant that appeared valid on its face, and because exigent circumstances existed to support the need for a no-knock entry, they are entitled to qualified immunity.
The Court notes that the plaintiff's complain that Wallace "made the decision to treat all narcotics warrants as hazardous warrants and to have the Tactical Team execute on all narcotics warrants on a "no-knock" basis." (Pls.' Resp. at 21.) Even assuming the truth of the this statement that the SWAT team always executes "no-knock" search warrants (or, more precisely, that when the SWAT team executes search warrants, it never knocks), that fact would not be dispositive in this case. As in Richards, even if the NRHPD SWAT team has a "blanket" rule of executing only no-knock warrants, as long as the officers had a reasonable suspicion from the particular circumstances giving rise to the issuance and execution of a particular warrant, the SWAT teams actions will be upheld.
The Fifth Circuit has held that qualified immunity is available as a defense to an excessive-force claim. See Brown v. Glossip, 878 F.2d 871, 872 (5th Cir. 1989).
The first consideration as to whether the officer defendants enjoy immunity from prosecution for use of excessive force, once again, is whether Plaintiffs have demonstrated a violation of their constitutional right to be free of the use of excessive force by law-enforcement personnel. "The Fourth Amendment, with its standard of reasonableness, governs claims of excessive force during arrest." Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir. 1993); see Graham v. Connor, 490 U.S. 386, 394 (1989); Tennessee v. Garner, 471 U.S. 1 (1985) (stating that "there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment"). According to the Fifth Circuit Court of Appeals, in order to prevail on a claim for the use of excessive force under the Fourth Amendment, Plaintiffs must show that Troy Davis (1) suffered some injury that (2) resulted from force that was clearly excessive to the need for force, (3) the excessiveness of which was objectively unreasonable. See Heitschmidt v. City of Houston, 161 F.3d 834, 839 (5th Cir. 1998); see also Spann, 987 F.2d at 1115. Deadly force is a subcategory of excessive force and violates the Fourth Amendment "unless' the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.'" Bazan v. Hidalgo County, 246 F.3d 481, 487-88) (5th Cir. 2001) (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985).
In Plaintiffs' Third Amended Complaint in 4:00-CV-438-Y, they allege that the defendants violated their rights under 28 U.S.C. § 1983 and the Fourth and Fourteenth Amendments. The Supreme Court, in Graham v. Connor, 490 U.S. 386, 388 (1989) held that claims that law-enforcement officials "used excessive force in the course of making an arrest, investigatory stop, or other 'seizure'" are "properly analyzed under the Fourth Amendment's 'objective reasonableness' standard, rather than under a substantive due process standard." In other words, "if a constitutional claim is covered by a specific constitutional provision, such as the Fourth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process." United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997). Because plaintiff's' claim that the officer defendants used excessive force while executing a search warrant, the Court will analyze such claim under the Fourth Amendment, not under the Fourteenth. See Lanier and Graham, supra.
The reasonableness of an officer's conduct must be assessed "from the perspective of a reasonable officer on the scene," recognizing that the officer may be "'forced to make split-second judgments' under stressful and dangerous conditions." Gross v. Pirtle, 245 F.3d 1151, 1158 (10th Cir. 2001) (citing Graham, 490 U.S. at 396-97).
"Determining whether the force used to effect a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of 'the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Graham, 490 U.S. at 396 (quoting Garner, 471 U.S. at 8).
Plaintiffs claim that Troy Davis was in his mother's living room, unarmed, when he was killed as a result of being shot by Hill during an unannounced raid by the NRHPD. Plaintiffs also allege that the officer defendants planted or contaminated the evidence to make it appear that Troy Davis was a threat to Hill. Viewing these allegations in the light most favorable to the plaintiff's, the Court concludes that the plaintiff's have alleged a constitutional violation for excessive force against Hill. However, Plaintiffs have provided no evidence that the other officer defendants were personally involved in the allegedly excessive use of force against Troy Davis. Therefore, the Court concludes that defendants Shockley, Wallace, Crane, and Westbrook are entitled to summary judgment on Plaintiffs' claim of excessive force. See Pineda v. City of Houston, 124 F. Supp.2d 1037, 1054-55 (S.D. Tex. 1999)
The Court will analyze the liability of Shockley and Wallace as supervisors in section III.D, infra.
To the extent that Plaintiffs are alleging that the officer defendants' force was excessive, in part, because they did not follow police procedures by obtaining a valid search warrant and knocking and announcing their presence before entering, the Court notes that "[t]he constitutional right to be free from unreasonable seizure has never been equated by the Court with the right to be free from a negligently executed stop or arrest." Fraire v. City of Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992) (citing Young v. City of Killeen, 775 F.2d 1349, 1353). In other words, even assuming that the officer defendants were somehow negligent in their actions leading up to the shooting of Troy Davis, such negligence resulting in a death does not automatically indicate that a constitutional violation has occurred. The proper inquiry in a claim under the Fourth Amendment for excessive force is to evaluate the circumstances surrounding the actual shooting and not the events leading up to the shooting itself. Fraire, 957 F.2d at 1275-76; see Young, 775 F.2d at 1352-53.
Having winnowed to one, Allen Hill, the list of officer defendants who may be unable to prevail, at least at the summary-judgment stage, on an assertion of qualified immunity, the second consideration in this immunity analysis is whether defendant Hill's actions were objectively reasonable in light of clearly established law at the time of the incident. See Siegert, 500 U.S. at 231-32; Conroe Creosoting Co., 249 F.3d at 340; Brewer, 3 F.3d at 820. In December 1999, the time of the incident, the law was clearly established that Troy Davis had a constitutional right to be free from the use of excessive force by a police officer in the course of an arrest or other seizure. See Graham, supra; Pineda, 124 F. Supp.2d at 1054. In addition, the law was clearly established that "[a] police officer may not seize an unarmed nondangerous suspect by shooting him dead." Garner, 471 U.S. at 11. However, the use of deadly force by a police officer is not unreasonable if the movements of a suspect give an officer reasonable cause to believe that there is a threat of serious bodily harm. See Young v. City of Killeen, 775 F.2d 1349, 1353 (5th Cir. 1985).
"Excessive force claims, like most other Fourth Amendment issues, are evaluated for objective reasonableness based upon the information the officers had when the conduct occurred." Saucier v. Katz, 121 S.Ct. at 2148.
On this record, considering the facts in the light most favorable to Plaintiffs, the Court cannot conclude that any reasonable officer in Hill's situation would have thought his actions were lawful in light of clearly established law at the time of the shooting. See Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001) (stating that 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"). Hill shot and killed Troy Davis in his mother's residence on December 15, 1999. Beyond that, the material facts underlying this incident are contested. Hill's version of the facts is as follows:
I was the first officer standing at the door as it was breached, and immediately entered where I saw a suspect matching Troy Davis' description standing at the end of the hallway, at what was later determined to be the entrance to the living room. The suspect was pointing a dark handgun directly at me. This placed me in immediate fear of being killed by the suspect. The suspect quickly stepped into the hallway where he maintained a two-handed firing position with the gun still pointed directly at me. I feared that he was about to shoot me and I fired two (2) shots at the suspect. It was not feasible to warn the suspect before I fired to protect myself from the immediate danger of serious bodily harm or death. I do not recall if I did or did not verbally engage Troy Davis. The suspect spun to his left and out of my view into what was later determined to be the living room. I entered the living room, and found the suspect lying on his back with his head between the end of the couch and the Christmas tree. As I entered the room, I was yelling for the suspect to show me his hands, and he complied by raising them to his chest. I scanned the room for any additional threats and observed a black handgun lying on the couch. That handgun appeared to be the one the suspect had been pointing at me in the hallway. It was not placed there by any of the police officers.
(Hill Aff. dated June 14, 2001, at 3-4.) Several other officers who claim to have seen the gun after the shooting described it as being or lying "on the couch." (Crane Dep. at 84; Pls.' App. at 545; Westbrook Dep. at 46; Pls.' App. at 564.)
In his most recent affidavit, Hill states:
Immediately upon entry into the residence, I saw a suspect matching Troy Davis's description standing at the end of the hallway, at what was later determined to be the entrance to the living room. The suspect was pointing a dark handgun directly at me, in a shooting stance. The suspect was also using the entryway into the family room as cover. This placed me in immediate fear of being killed by the suspect. I feared that he was about to shoot me and I fired two (2) shots at the suspect. It was not feasible to warn the suspect before I fired to protect myself from the immediate danger of serious bodily harm or death. The suspect spun to his left and out of my view into what was later determined to be the living room. I quickly and easily entered the living room and found the suspect lying on his back with his head between the end of the couch and the Christmas tree.
(Hill's Aff. dated March 5, 2003, at 4-5.)
In addition, Westbrook, who entered the house directly behind Hill describes the shooting as follows:
As I entered the residence, I looked to the left of Hill (over his left shoulder) and observed a white male standing approximately ten (10) feet in front of us. The subject was facing us with what I think was his right arm sticking straight out, at shoulder level, pointing a black pistol at Hill and myself. I immediately heard two (2) gun shots and saw one muzzle from Hill's weapon. At this point, I was unaware if the subject had fired or not. As I heard the second shot, the subject either fell or ran into the living room area of the residence.
I do not believe that Hill ever stopped advancing into the residence, and I stayed right behind Hill. We advanced down the short hallway, and then turned left into the living room area where I observed the subject laying on the living room floor next to the couch, approximately six (6) feet from the door. The subject was on his back with his head laying partially under the Christmas tree.
I recall the subject stating, "I didn't know. I didn't know;" twice, maybe three (3) times. At this point, I observed that the subject's hands were empty. I did not see the weapon. I questioned aloud, "Where is the weapon?" Hill pointed to the couch where I observed a black pistol lying. No other officers, including Hill, had any opportunity to place the weapon where I observed it, without me observing them, and such did not occur.
The Court notes that in addition to the testimony of the officers present at the scene on the day of the shooting, the defendants also, inter alia, present the testimony of Michael M. Cosgrove, Ph.D., the defendants' police-practice-and-procedures expert. Mr. Cosgrove opines that the use of deadly force under the circumstances as described by Hill and Westbrook would be reasonable. (Cosgrove Aff. at 6-7.)
However, according to the plaintiff's, Troy Davis was unarmed and was shot while standing in his living room. (Pls.' Resp. at 2.) Plaintiffs allege that members of the NRHPD manipulated the evidence at the crime scene to make it appear that Hill was justified in shooting Troy Davis. Plaintiffs support their allegations with, inter alia, the following evidence: (1) deposition testimony of Max Courtney, a crime-scene specialist retained by the City of North Richland Hills, indicating that when he first arrived at the scene he found and photographed a 9 mm handgun that was covered by a pillow and wedged between two cushions on the couch (Courtney Dep. at 15, 50; Pls. App. at 663, 664, 881, 890.); (2) deposition testimony of Courtney indicating that there were no fingerprints found on Troy Davis's 9-mm handgun (Courtney Dep. at 33-35; Pls.' App. at 886.); (3) deposition testimony of Courtney indicating that Hill's statements concerning the physical locations of Troy Davis and Hill at the time of the shootings were "inconsistent with the evidence" that he found at the scene (Courtney Dep. at 22-29; Pls.' App. at 883-84); (4) evidence of several discrepancies relating to the crime scene, including that Crane placed a pillow over the gun that was found wedged between two cushions on the couch (Crane Dep. at 85; Pls.' App. at 545; see also Pls.' App. at 2038-2083 (various statements from officers involved in the raid on the Davis residence indicating that after the raid they saw a gun lying "on" the couch)), (5) testimony from Ed Hueske, one of the plaintiff's' experts, that "[t]he physical evidence, in its entirety, contradicts the account given by Officer Hill that Troy Davis stood upright at the south end of the hallway pointing a gun at him forcing Hill to shoot him twice from a distance of approximately 10 feet" (Pls.' App. at 1876); (5) information relevant to the crime scene investigation that was not recorded in the crime-scene log, (6) the appearance of a former SWAT team member's nameplate in crime-scene photographs, which was apparently moved around the crime-scene (Pls.' App. at 666, 772, 856-76; 877-90; 1222-1226; 1518-1519; 1047-1048); and (8) crime-scene photographic evidence indicating that the sofa in the living room extended into the doorway between the hallway and the living room, making it appear difficult for Troy Davis to negotiate as, according to Hill, he first moved from the living room into the hallway and then back into the living room after being shot. (See Pls.' App. at 662 see also Hill's Dep. at 48-54.).
The Court notes that the defendants have attached an affidavit from Courtney that states:
My oral deposition was taken in this case on July 10, 2001 and again on September 24, 2002. At the time of my first deposition, the depositions of Defendants Allen Hill and Curtis Westbrook had not been taken, nor had I seen the videotape of the entry. I have since reviewed all three, together with the grand jury testimony of Allen Hill and Curtis Westbrook.
I investigated the crime scene at the request of the North Richland Hills Police Department shortly after the incident involving the shooting of Troy Davis. My investigative report describing the scene is attached to this affidavit. With a single exception, the physical evidence is consistent with the deposition and grand jury testimony of Defendant Allen Hill that he fired at Troy Davis while he (Hill) was in the hallway inside the front door, and Davis was standing pointing a gun from a position partly in the hallway and partly in the living room. That exception is a single fired cartridge case, depicted as Item 2 on Courtney Deposition Exhibit 1, Figure 1 (attached), which was found on the carpet in front of the fireplace hearth in the living room. If Hill fired at Troy Davis, from a position on the right side of the entrance hallway, standing as depicted on the hand-drawn portion of Hill Deposition Exhibit 13A (attached), this would be consistent with the location of bullet fragments depicted as 5 and 6. The shell casings would almost certainly have ricocheted off of one or more walls and the hallway floor, and it is likely that the casings were struck or were kicked by one or more of the officers who followed Hill into the residence.
(Courtney Aff. at 2; App. to Br. in Supp. of Hill and Crane's Mot. for Summ. J. at 158.) To the extent that Courtney's affidavit contradicts his earlier sworn deposition testimony, the Court will ignore it. See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495-96 (5th Cir. 1996) ("It is well settled that this court does not allow a party to defeat a motion for summary judgment using an affidavit that impeaches, without explanation, sworn testimony.")
There is a crime-scene log that purportedly contains the names of all police, fire, and medical personnel that entered the crime scene. However, it does not include the names of several individuals, including Robert Rich, crime scene officer for the NRHPD; Westbrook; Max Courtney, Larry Irving, or Tom O'Connell, who went into the Davises' residence after the raid occurred. (Pls.' App. at 772; Westbrook Dep. at 562-633; Rich Dep. at 856-76; Courtney Dep. at 879-80.)
The Court concludes that the evidence presented by the plaintiff's creates genuine issues of material fact as to what actually occurred during the raid. Viewing this evidence in the light most favorable to the plaintiff's, the Court further concludes that no reasonable officer in Hill's position would have thought his conduct was lawful because Troy Davis did not give Hill reasonable cause to believe that there was a threat of serious bodily harm. Consequently, Hill's motion for summary judgment as to qualified immunity should be denied.
D. Supervisory Liability Under § 1983
Plaintiffs claim that Shockley and Wallace should be held liable under § 1983 for the roles they played as supervisors in the shooting death of Troy Davis. (Pls.' Br. at 23.) Specifically, Plaintiffs assert that Shockley and Wallace are liable for their inadequate training and supervision of Hill, which resulted in Hill's unconstitutional conduct in using excessive force during the raid. (Pls.' Br. at 23.) In addition, Plaintiffs claim that Shockley is liable for his inadequate supervision of Wallace, which resulted in Wallace's unconstitutional conduct in obtaining and executing a no-knock search warrant that was not supported by probable cause.
Shockley has been the Chief of Police of the NRHPD since December 1998. (Shockley Aff. at 2.) Wallace was the SWAT Team commander. (Wallace Aff. at 117-19.) As commander, Wallace did not actually participate in the raid, but he remained outside the house. (Wallace Aff. at 122-23.)
Supervisory officials may not be found liable for the actions of their subordinates under § 1983 under a theory of vicarious liability or respondeat superior. See Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 452 (5th Cir. 1994); see Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694 n. 58 (1974). Instead, to succeed on a claim for supervisory liability, a plaintiff must show that: (1) the supervisor failed to train or supervise the officer, (2) a causal connection existed between the failure to train or supervise and the violation of the plaintiff's rights, and (3) such failure to train or supervise amounted to deliberate indifference. See Smith v. Brenoettsy, 158 F.3d 908, 911-12 (5th Cir. 1998); Taylor Indep. Sch. Dist., 15 F.3d at 452-54 (adopting the City of" Canton v. Harris, 489 U.S. 378 (1989), standard of municipal liability, thus omitting gross negligence from the Hinshaw test). "A supervisor's failure to take remedial actions regarding a miscreant officer may result in supervisory liability where it amounts to 'deliberate indifference.'" Aponte Matos v. Toledo Davila, 135 F.3d 182, 192 (1st Cir. 1998).
In other words, "[t]here is supervisory liability only if (1) there is subordinate liability, and (2) the supervisor's action or inaction was 'affirmatively linked' to the constitutional violation caused by the subordinate. Aponte Matos, 135 F.3d at 192.
"To demonstrate deliberate indifference a plaintiff must show (1) a grave risk of harm, (2) the defendant's actual or constructive knowledge of that risk, and (3) his failure to take easily available measures to address the risk." Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998) (stating that this test indicates that a supervisor cannot be found liable for deliberate indifference alone; a plaintiff must also show causation); see Maldonado-Denis v. Castillo-Rodriguez 23 F.3d 576, 582 (1st Cir. 1994) (explaining that the supervisor must have "had the power and authority to alleviate [the violation]"). To show deliberate indifference, plaintiff must usually show proof of more than a single instance of lack of training or supervision causing a violation of constitutional rights. See Thompson v. Upshur Cty., TX, 245 F.3d 447, 459 (5th Cir. 2001) (citing Snyder v. Trepagnier, 142 F.3d 791, 798-99 (5th Cir. 1998) and Thompkins v. Belt, 828 F.2d 298, 304-05 (5th Cir. 1987)). "Deliberate indifference" is a very stringent standard of fault that permits courts to separate omissions that "amount to an intentional choice" from those that are merely "unintentionally negligent oversights." Brd. of the Cty. Comm'rs of Bryan Cty., OK. v. Brown, 520 U.S. 397 (1997).
1. Failure to Supervise Hill
Plaintiffs do not allege that Shockley or Wallace were directly involved in the actual shooting death of Troy James, although Wallace was present during the raid. Instead, Plaintiffs offer evidence indicating that these individuals, as supervisors, violated Troy Davis's constitutional right to be free from excessive force by failing to properly supervise Hill. This evidence includes: (1) testimony from Ann Shelton, a former NRHPD SWAT team member, indicating that Shockley and Wallace knew or should have known that Hill was likely to fire his weapon inappropriately or illegally (Pls.' Br. at 18.); (2) Shelton's testimony that prior to the shooting of Troy Davis, when Hill intentionally exposed himself during the snapping of a team photograph at SWAT training exercise at Fort Hood in Killeen, Texas, Shockley and Wallace failed to take adequate disciplinary action against Hill, failed to remove Hill from the SWAT team, and ordered that the photographs be destroyed; and that, thus, Shockley reinforced the view that he sanctioned a "code of silence" among his police officers (Shelton Aff. at 4-5; see also Wallace Dep. at 125-130, 155-58); (3) evidence that Hill frequently exposed himself to other members of the NRHPD and, as a result, had acquired the nickname "Penie" (Pls.' App. at 1784, 1974, 2001; (4) evidence in Hill's background investigation showing Hill had a propensity for violence; (5) testimony that Shockley and Wallace failed to take any action after receiving a complaint from Randy Cole, a citizen who had been pulled over by Hill for a traffic violation prior to the shooting death of Troy Davis (Cole Aff. at 1-3; Shockley Aff. at 2; Wallace Aff. at 6-7); and (6) failure of Shockley or Wallace to take any immediate disciplinary action against any of the defendant officers after Ann Shelton's nameplate appeared in photographs from the crime scene at the Davises' residence (Shelton Aff. at 3-4; see also Wallace Dep. at 151-55; Pls.' App. at 666).
Ann Shelton, in her affidavit, stated:
During my SWAT training at the North Richland Hills police department, I vividly recall three (3) occasions when Allen Hill acted in a manner that I would describe as being 'too quick to fire his weapon.'
While at a SWAT training exercise in Watauga, Texas, performing a mock entry into an abandoned home, Allen Hill fired his weapon when the training scenario did not call for a shot to be fired. Afterward, during the de-briefing, Sgt. Wallace and Sgt. Slinkard questioned Allen Hill for shooting because they did not setup the scenario to pose a threat. Allen Hill told the two supervisors that he (Hill) perceived a threat. Hill persistently defended his actions while the supervisors maintained their position that the scenario was not setup to pose any threat.
During SWAT training exercises at Carswell Airforce Base, inside the abandoned on-base housing, I observed Allen Hill fire his weapon on at least two more occasions that did not call for shots to be fired. Each mock exercise was designed to test the judgment of the individual SWAT participants. Hill took shots when the scenarios were not setup for shots to be fired. Again, Sgt. Wallace questioned Allen Hill for shooting when the situation did not call for shots to be fired. Allen Hill never backed down and never admitted that his actions might have been incorrect.
(Shelton Aff. at 2-3.)
Hill was apparently suspended for two weeks as a result of this incident. (Shockley Aff., dated February 4, 2003, at 5.)
There is evidence that Wallace was aware of this incident: In the deposition of Wallace, he states that after the photograph was taken, Shockley told Wallace "to call [Hill] down." (Wallace Dep. at 174, 156-57.)
Larry Irving, in his "Report of Background Investigation" dated May 9, 1997, stated:
Hill comes off somewhat as a "cowboy." His past actions reflect that he wants to do the best job he can do, but he comes off too aggressive at times. This has caused him some problems. Some past supervisors state that he can be a supervisor's nightmare. Under a very strong supervisor Hill could be an asset to the department. His off duty involvements could get him into trouble. He tends to have a working reason for every incident he gets into. If the type of behavior he displayed in Watauga continues, he will generate citizen complaints. Fire department personnel state he is too police oriented to be a fireman. They seem to think the rank structure of the police department will be excellent for him.
(Pls.' App. at 1978.)
Cole claims that in the fall of 1999, he was pulled over by Hill for allegedly making an illegal lane change. (Cole Dep. at 5-6.) He stated that Hill became very angry during the course of the stop, pounded on Cole's window, threatened to take him to jail, ordered him out of his car, and made him lean up against the car with his hands behind his back. After the incident, Cole filed a complaint against Hill and met with Shockley to discuss Hill's behavior. Cole allegedly complained to Shockley and another individual, whom he believed was Wallace, that Hill was a "rogue" cop, behaved "like a psycho" and was "going to kill somebody." (Cole Dep. at 17.)
First, have Plaintiffs shown the existence of a genuine issue of material fact as to a supervisory violation of Troy Davis's constitutional right to be free of the use of excessive force? Yes. Plaintiffs have asserted and have presented competent summary-judgment evidence that, with actual or constructive knowledge of a grave risk of harm from Hill, and without taking easily available measures to address that risk, Shockley and/or Wallace failed to supervise Hill and that failure caused or contributed to causing Hill's use of excessive force against Troy Davis.
Next, have Plaintiffs raised an issue as to whether the right to be free of excessive force was so clearly established that a reasonable person in Shockley's or in Wallace's situation would have understood that his conduct violated that right? That is, is there evidence that Shockley's or Wallace's conduct was not objectively reasonable in light of clearly established law? As discussed above in section III.B., the law regarding a citizen's constitutional right to be free from excessive force was clearly established in December 1999. In addition, it was well settled that a police supervisor, whose deliberately indifferent supervision of a subordinate contributed to the subordinate's violation of a person's constitutional rights, could be held liable for those violations. See Smith, 158 F.3d at 911-12 (establishing elements for supervisory liability); see Diaz v. Martinez, 112 F.3d 1, 4 (1st Cir. 1997).
The evidence presented by the plaintiff's that best supports their claim that Shockley and Wallace were deliberately indifferent to Hill's propensity to use excessive force is the evidence of events involving force that occurred prior to the shooting death of Troy Davis: (1) the testimony of Shelton about Hill's misuse of force on three occasions, (2) evidence in Hill's background investigation, dated May 9, 1997, that Hill had a tendency to act aggressively, and (3) the complaint of Randy Cole concerning Hill's inappropriate behavior during a routine traffic stop. Shelton testifies that Hill misused force on three occasions during two separate training exercises in situations that were not intended to require force. This evidence creates a genuine issue of material fact of whether a reasonable officer in Shockley or Wallace's position should have been on notice of Hill's propensity to use excessive force and that there was a grave risk of harm if they did not take measures to address the issue. See also Camilo-Robles, 151 F.3d at 7 (stating that notice of behavior likely to result in the violation of constitutional rights "is a salient consideration in determining the existence of supervisory liability"); cf. Febus-Rodriguez v. Bentancourt-Lebron, 14 F.3d 87, 93-94 (1st Cir. 1994) (stating that five prior complaints against officer, which stemmed from incidents completely unrelated to incident at bar, could not have alerted supervisor to fact that officer had propensity to assault citizens, deny detainees necessary medical treatment, or deal inappropriately with mentally handicapped persons; thus, supervisor was entitled to qualified immunity).
The seriousness of these three incidents is further magnified when considered in connection with the complaint by Randy Cole and the evidence that Hill had a reputation at the NRHPD for exposing himself regularly, including in a team photograph at SWAT training. There is persuasive evidence in the record that Randy Cole warned Shockley and, probably, Wallace, that Hill was "going to kill somebody." The fact that these words were prophetic cannot give them additional weight. But they are as direct and as explicit a notice as any Shockley and Wallace could be given that Hill was capable of behavior likely to result in the violation of the most basic of constitutional rights.
Nor can the alleged exposure incident be passed off as irrelevant or as insignificant horseplay. Indecent exposure is a crime and, when committed at work, it may also constitute sexual harassment. Performed for a photograph at play, it would be tasteless at best. But it is not alleged that Hill committed indecent exposure at the company picnic. Shelton swears that Hill exposed himself at his SWAT-team training session and Hill's habit of exposing himself at other times during work was so well known that he earned the nickname "Penie."
SWAT teams are assembled and trained to enforce the law in the most serious and dangerous situations known to law enforcement. Employment of a heavily armed SWAT team by law-enforcement officials always means that someone's life will be at risk. Training for such work must, therefore, be serious, focused and professional. Clearly, if Shelton is to be believed, as she must be for summary-judgment purposes, Hill exhibited a shocking degree of silliness and myopia and an appalling lack of professional judgment when he exposed himself for the SWAT-team photo. His fitness for such a team, where members must exercise split-second good judgment at every turn, should have been of great concern to any supervisor. Based on these events, the Court concludes that there is a genuine issue of material fact as to whether a reasonable officer in the defendants' positions should reasonably have understood that their actions in supervising Hill jeopardized the rights of the plaintiffs. On these facts, Shockley and Wallace can reasonably be said, at least at this stage of the litigation, to have ignored a "grave risk" that Hill would eventually use excessive force. Consequently, Shockley and Wallace are not entitled to a summary judgment of qualified immunity with respect to the plaintiff's' claims against them for supervisory liability.
The Court cannot find any evidence indicating what actions Shockley took, if any, in response to the training exercises or Cole's complaint.
See Camilo-Robles, 151 F.3d at 1; Diaz v. Martinez, 112 F.3d 1 (1st Cir. 1997); Comfort v. Town of Pittsfield, 924 F. Supp. 1219 (D. Me. 1996) (case involving supervisory liability in failure to train, supervise, and discipline). Cf. Gros v. City of Grand Prairie, TX, 209 F.3d 431, 434-36 (5th Cir. 2000) (stating that a police chief, in hiring officer who had scattered statements in his pre-employment file suggesting that he was too aggressive for campus police department and letters of reprimand and sustained complaints for being overbearing and abusive during traffic stop, was not deliberately indifferent to constitutional rights of women who were allegedly sexually assaulted by officer during traffic stops and was entitled to qualified immunity); Aponte Matos, 135 F.3d at 182; Brd. of County Comm'rs v. Brown, 520 U.S. 397, 414 (1997) (finding that a sheriff s decision to hire an officer who had past criminal history involving violence did not rise to the level of deliberate indifference that officer would use excessive force; thus, municipality was not liable for officer's use of excessive force).
2. Failure to Supervise Wallace
The plaintiff's claim that Shockley failed to properly supervise Wallace when, inter alia, he knew that Wallace had not been properly supervised or trained "in the critical task of obtaining search warrants and determining whether to execute the warrant in a 'no-knock' manner." (Pls.' Br. at 25.) However, because Shockley can only have supervisory liability if there is subordinate liability, Shockley cannot be held liable for his failure to supervise or train Wallace since Wallace has been granted qualified immunity for his actions in obtaining and executing the no-knock warrant. See Aponte Matos, 135 F.3d at 192; Seekamp v. Michaud, 109 F.3d 802, 808 (1st Cir. 1997); Capozzi v. Dept. of Transp., 135 F. Supp.2d 87, 98 (D.Mass. 2001). Consequently, Shockley is entitled to summary judgment on this claim.
E. 42 U.S.C. § 1983 Conspiracy Claim
Plaintiffs allege that "members of the NRHPD, including specifically Wallace and Shockley, conspired to plant a gun belonging to Troy Davis in the vicinity of the body after the shooting incident but prior to the arrival of investigators, and then manipulated the subsequent investigations to conceal the true nature of the shooting." (Pls.' Br. at 27-28.) The Fifth Circuit recognizes a § 1983 cause of action for certain civil conspiracies. See Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir. 1999). The elements of a civil conspiracy are: (1) an actual violation of a right protected under § 1983 and (2) actions taken in concert by the defendants with the specific intent to violate the right. Id.; see Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir. 1980) (stating that for a conspiracy claim to be actionable under § 1983, "it is necessary that there have been, besides the agreement, an actual deprivation of a right secured by the Constitution and laws"). "The gist of the [§ 1983] cause of action is the deprivation and not the conspiracy [itself]." Landrigan, 628 F.2d at 742 (quoting Lesser v. Braniff Airways, Inc., 518 F.2d 538, 540 n. 2 (7th Cir. 1975). The conspiracy just provides the plaintiff with the means by which to prove the constitutional or statutory violation. See Landrigan, 628 F.2d at 742.
"Section 1983 does not provide a cause of action for a conspiracy to deny due process; there must be an actual denial of due process before a cause of action arises." Hanna v. Home Ins. Co., 281 F.2d 293, 303 (5th Cir. 1960).
Based on the foregoing, the familiar first issue is whether the alleged conduct of the officer defendants deprived the plaintiff's of a right secured by the Constitution. The plaintiff's, in their complaint, allege that the officer defendants engaged in a cover-up to "deprive the Plaintiff Estate and its representatives their cause of action for wrongful death in violation of the due process permitted by the 14th Amendment of the United States Constitution." (Pls.' Third Am. Compl. in 4:00-CV-438-Y at 24). Furthermore, in their response, the plaintiff's argue that their right to access to the Courts was violated by the officer defendants' actions in conspiring to cover-up the circumstances leading to the death of Troy Davis. (Pls'. Br. at 26-27.) In support of their position, the plaintiff's cite three cases, including Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983) and Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984).
Because the case law in this area is confusing and convoluted, a brief Instory is necessary. As the defendants note, "[s]everal Courts, including the United States Court of Appeals for the Fifth Circuit in Whitehurst v. Wright, 592 F.2d 834, 840 (5th Cir. 1979)], have held that in cases involving alleged conspiracies to cover up the truth about police killings, the cover-up does not violate any rights the deceased." The courts in these cases reasoned "that since the deceased is no longer a 'person' within the meaning of Section 1983 . . ., he has no right with which a post-death conspiracy could interfere." (Br. in Supp. of Shockley, Wallace, and Crane's Mot. for Summ. J. at 23.) However, several years after the Whitehurst decision, the Fifth Circuit "recognized that the holding [in cases such as Whitehurst] did not apply to a case[, such as this one,] . . . involving an alleged conspiracy to cover up a [wrongful] death where the conspiracy allegedly violated the victim's parents' rights to bring a wrongful death claim." Bell v. City of Milwaukee, 746 F.2d 1205, 1264 (7th Cir. 1984) (citing Ryland v. Shapiro, 708 F.2d 967, 973 n. 6 (5th Cir. 1983)); see also Webster v. City of Houston, 735 F.2d 838, 846 (5th Cir. 1984) (stating, in the dissent, that "[i]nsofar as the Whitehurst case might be viewed as going beyond the narrow facts of an isolated incident where the only claim of the constitutional violation is the use of a throw down gun after the death of the victim, it is not the law"). In these cases, the courts reasoned that the plaintiff's had a substantive constitutional right of access to the courts. See Ryland, 708 F.2d at 973.
See, e.g., Guyton v. Phillips, 606 F.2d 248, 250 (9th Cir. 1979); Whitehurst v. Wright, 592 F.2d 834, 840 (5th Cir. 1974) (holding that a claim of civil rights violation brought by the mother of a victim of a police shooting in which a "throw down" gun was used to conceal that the victim was unarmed did not constitute a constitutional violation of the rights of the deceased because a person who is dead no longer has rights that can be deprived).
"The right of access to the courts is basic to our system of government, and it is well established today that it is one of the fundamental rights protected by the Constitution." Ryland, 708 F.2d at 971. The U.S. Constitution provides three bases for right of access to the courts are: (1) Article four, (2) First Amendment, and (3) due-process clause. Id. at 971-72.
Subsequently, the Fifth Circuit, in Foster v. City of Lake Jackson, 28 F.3d 425, 430 (5th Cir. 1994), modified the constitutional right of access to the courts by stating that "the right of access . . . [is] implicated [only] where the ability to file suit was delayed, or blocked altogether." In other words, according to the Fifth Circuit, the plaintiff's will only have a section 1983 conspiracy claim for a violation of their constitutional right to access to the courts if the alleged conspiracy has impeded or prevented the plaintiff's from filing suit. See LaBarbera v. Angel, 95 F. Supp.2d 656, 665 (E.D. Tex. 2000); see also Ellis v. Magee Devereux, No. Civ. A. 00-3145, 2001 WL 167744, at *2-*3 (E.D. La. Feb. 15, 2001). Because there is no evidence nor are there allegations that the alleged conspiracy in this case impeded or prevented the plaintiff's from filing suit, the Court concludes that they have not alleged a constitutional violation to support their section 1983 conspiracy theory. Consequently, the officer defendants are entitled to summary judgment on this claim.
The district court in LaBarbara, 95 F. Supp.2d at 665, stated:
The right of access, as defined in Foster, is not the right to win nor proceed without discovery abuses. 28 F.3d at 430. Plaintiffs have remedies for evidence abuses. While Texas does not recognize a separate cause of action for spoliation of evidence, it does vest the trial court with broad discretion, ranging from presumptions to "death penalty" sanctions, (striking of pleadings) in order to remedy improper conduct which destroys evidence. See Trevino v. Ortega, 969 S.W.2d 950, 053 (Tex. 1998).
F. State Law Claims
The officer defendants, in their motions for summary judgment, state:
It is unclear whether Plaintiffs have alleged any State law claims but, to the extent that [t]hey have, it is uncontested that the [Defendant police officers] were on duty, performing discretionary duties, in good faith, within the course and scope of their authority as police officers.
(Br. in Supp. of Defs. Hill Crane's Mot. for Summ. J. at 22.) The Court, after reviewing the plaintiff's' Third Amended Complaint, concludes that the plaintiff's have not alleged any state-law claims. Accordingly, the Court will not consider whether the officer defendants are entitled to official immunity with regard to any state-law claims.
The Court notes that in Plaintiffs' Original Complaint, First Amended Complaint, and Second Amended Complaint, the plaintiff's included a section that was specifically titled "State Law Claims." The plaintiff's did not include such a section nor referred to any violations of any state laws (other than the Texas Wrongful Death Statute) in their Third Amended Complaint, which supersedes any prior filed complaints.
IV. CONCLUSION
Based on the foregoing, it is ORDERED that defendant Tom Shockley, J.A. Wallace and Curtis Westbrook's Motion for Summary Judgment [doc. # 173-1] is PARTIALLY GRANTED in that: (1) Shockley is entitled to summary judgment based on qualified immunity as to all claims except for the § 1983 supervisory-liability claim of failing to supervise Hill, (2)Wallace is entitled to summary judgment based on qualified immunity as to all claims except for the § 1983 supervisory liability claim of failing to supervise Hill; and (3) Westbrook is entitled to summary judgment based on qualified immunity as to all claims.
It is further ORDERED that defendant Allen Hill and Gregory Crane's Motion for Summary Judgment [doc. # 179-1] is PARTIALLY GRANTED in that: (1) Hill is entitled to summary judgment based on qualified immunity as to all claims except for the § 1983 excessive-force claim, and (2) Crane is entitled to summary judgment based on qualified immunity as to all claims.
It is further ORDERED that the § 1983 claims against defendants Shockley, Hill, Wallace, Crane, and Westbrook in their official capacities are DISMISSED.