Opinion
SA-21-CV-925-OLG (HJB)
02-01-2024
MATHIAS OMETU, Plaintiff, v. THE CITY OF SAN ANTONIO, CHIEF OF POLICE WILLIAM MCMANUS, DEVIN DAY, OFFICER, BADGE # 0490, RICHARD SERNA, OFFICER, BADGE # 1466, and DOES 1 THROUGH 20 INCLUSIVE, Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HENRY J. BEMPORAD, UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Orlando L. Garcia:
This Report and Recommendation concerns cross-motions for summary judgment filed by the City of San Antonio (“the City”) (Docket Entry 42), Officers Devin Day and Richard Serna (“the officers”) (Docket Entry 62), and Plaintiff Mathias Ometu (Docket Entries 47, 48, and 49). Pretrial matters in this case have been referred to the undersigned for consideration. (Docket Entry 61.) For the reasons set out below, I recommend that the motions filed by the officers and the City (Docket Entries 42 and 62) be GRANTED IN PART and DENIED AS MOOT IN PART, and that Ometu's motions for summary judgment (Docket Entries 47, 48, and 49) be DENIED.
I. Jurisdiction.
Ometu asserts various claims under 42 U.S.C. § 1983. (See Docket Entry 1 at 15-25.) The Court has original jurisdiction over § 1983 claims pursuant to 28 U.S.C. § 1331.
II. Background.
The allegations before the Court began with a case of mistaken identity. On August 25, 2020, at around 2:00 P.M., Officer Serna was dispatched to respond to a domestic violence call from an apartment complex at 4900 Woodstone, near the IH-10 W access road in San Antonio, Texas. (Docket Entry 42-2 at 2-3, 106-08.) As Serna drove into the apartment complex, he observed Ometu-a heavily bearded black man dressed in a lime green t-shirt, a hat, and a white pair of basketball shorts with a large black stripe down each side-leaving the complex on foot. (Serna DBC: 13:38:50-55.)Serna proceeded to the apartment and spoke to the victim, Kiara Davenport (“Davenport”). (Serna BWC: 13:50:00-30; Docket Entry 42-2 at 2.) Davenport told Serna that the assailant was a black male and that he was wearing green. (Serna BWC: 13:50:1416, 23-28.) Serna asked if the assailant had a beard, and she answered: “kind of.” (Id.: 13:50:1723.) As Serna returned to his cruiser, he requested assistance from dispatch and advised that the suspect was: “a black male; probably about 6”4; like a neon green t-shirt; full, black beard.” (Id.: 13:50:35-47.)
The events described were captured from multiple angles by several video cameras assigned to Officers Day and Serna. The factual background refers to the videos by reference to the officer and the type of camera: dashboard camera (“DBC”), body-worn camera (“BWC”), and back-seat camera (“BSC”).
Officer Day arrived in the area a few minutes later; he observed Ometu jogging toward the IH-10 W. (Day DBC: 01:52:03-14.) Day relayed Ometu's location to Officer Serna, and both officers proceeded to intercept him. (Day BWC: 13:52:13-26.) Serna arrived first and asked Ometu for his name, explaining that he “kind of match[ed]” the description of the suspect. (Serna BWC: 13:52:57-13:53:06.) Ometu refused to provide his name, expressing frustration that Serna had interrupted his exercise. (Id.: 13:53:19-22.) Day then arrived, parking his cruiser behind Serna's and exiting the vehicle to approach Ometu while he and Serna were talking. (Day DBC: 01:53:15-28.) Serna explained that he was investigating a domestic violence call, and again asked Ometu to identify himself. (Serna BWC: 13:52:22-24.) Again, Ometu refused: “I'm not giving you my name . . . I don't have to give you my name.” (Day & Serna BWC: 13:53:25-33.) Serna again explained that he stopped Ometu because he matched the description of someone “who just choked a girl,” but Ometu persisted in his refusal to identify himself. (Id.: 13:53:39-44.) Serna then placed Ometu in handcuffs and explained that he would be detained until Serna could figure out who he was. (Serna BWC: 13:53:51-13:54:05.) Serna ordered Ometu to get into the backseat of his cruiser, but Ometu refused. (Id.: 13:54:32, 57-13:55:02.)
Officer Day's dashboard camera referred to standard time; the other footage presented referred to military time.
Officer Serna stepped away for a moment, leaving Ometu in Officer Day's care while he called Davenport for additional details about the assailant. (Id.: 13:55:42.) He learned the assailant's date of birth, that he was not wearing a hat when he left Davenport's apartment, and that his name is Darren Smith. (Id.: 13:55:50-58; 13:56:12-16; 13:57:18-25.) With this information, Serna was able to locate and view a mugshot of Smith from 2017. (Id.: 13:57:38-42; 13:58:19-31.) Smith's 2017 mugshot is set out below, on the left; Ometu's mugshot from the day of the incident is on the right. (Docket Entry 47 at 24.)
(Image Omitted)
Serna returned to Ometu and again asked him to identify himself, but Ometu once again refused. (Day & Serna BWC: 13:58:42-55.) Officer Serna then requested a third officer to escort Davenport to their location for a showup, to confirm whether Ometu was the assailant. (Serna BWC: 14:00:04-12.) Serna then informed Davenport that an officer would be arriving at her apartment momentarily for that purpose. (Id.: 14:02:19-24.)
While Officer Serna was talking to Davenport, Officer Day explained to Ometu that he was “just detained,” and that he was “not under arrest at this time.” (Day BWC: 14:01:45-50.) Ometu asked why he was being detained, and Day explained that he matched the description of the assailant provided by Davenport, noting: “if you're not the guy, then we're going to go ahead and cut you loose; we're just detaining you for further investigation.” (Id.: 14:01:52-14:02:18.) Ometu listened silently but did not respond. Serna then returned to Ometu, who told Serna not to ask for his identity again. (Day & Serna BWC: 14:03:13-18.) Like Day, Serna tried to explain that Ometu was not under arrest but was merely being detained until the officers could determine his identity, but Ometu ignored him. (Id.: 14:03:23-31.)
A few minutes later, the third officer who was sent to escort Davenport to Officer Serna's location called Serna and explained that she would not leave her apartment because there was no one to watch her two young children. (Serna BWC: 14:14:12-26.) The third officer told Serna he would have to bring Ometu to the apartment; Serna replied that Ometu refused to get into the patrol car or otherwise cooperate. (Id.: 14:14:27-33.) With Serna still on the line, Davenport then described the assailant to the third officer as: black, medium build, short hair, with “just a little bit of scruff on his chin,” and wearing a “green shirt” and “black basketball shorts.” (Id.: 14:14:4214:15:17.) When asked by the third officer whether Ometu fit that description, Serna responded: “everything matches except for the basketball shorts-they're white with a black stripe-and then he's got, like, a pretty good-sized beard.” (Id.: 14:15:18-30.) The third officer inquired further with Davenport about the size of the assailant's beard, and she responded that “it's real short.” (Id.: 14:15:31-35.) The third officer also advised Serna that Ometu had by then committed a separate offense by “fail[ing] to ID.”(Id.: 14:15:44-49.) Serna said he suspected that Ometu was actually Smith, and that he was refusing to identify himself because he had an outstanding felony warrant for his arrest. (Id.: 14:15:58-14:16:05.) Moments later, Serna told the third officer that he and Day would bring Ometu to Davenport's apartment for a showup. (Id.: 14:17:03-10.)
In fact, Ometu had not committed an offense by failing to identify at this point in time. An arrestee can fail to identify by “intentionally refus[ing] to give his name, residence address, or date of birth to a peace officer.” TEX. PENAL CODE ANN. § 38.02(a). A detainee, on the other hand, can only fail to identify by “intentionally giv[ing] a false or fictitious name, residence address, or date of birth to a peace officer.” Id. at § 38.02(b). As explained in greater detail infra, Ometu was just a detainee when Day and Serna attempted to place him in Serna's car, and thus could only fail to identify before then by intentionally giving false information about his identity to Day or Serna. As the record makes clear, Ometu did not give false information; he gave no information.
Officer Serna then walked back to where Ometu and Officer Day were standing and told Ometu that he was going to be taken to Davenport's apartment so she could confirm whether Ometu was the assailant. (Day & Serna BWC: 14:17:30.) Ometu responded defiantly, “I'm not going anywhere; you're illegally detaining me.” (Id.: 14:17:36-40.) Serna then told Ometu, in a matter-of-fact tone, “well, you're going to get in the car-come on.” (Id.: 14:18:05-10.) Ometu responded, “No I'm not-I'm not getting in the car; I didn't do anything.” (Id.: 14:18:07-10.) Serna then began to pull Ometu toward the open backseat of his cruiser. (Day DBC: 02:18:0308.) Ometu resisted, pushing back away from the vehicle. (Id.: 02:18:07-11.) Day and Serna both pushed Ometu's head and torso into the backseat of Serna's cruiser. (Id.: 02:18:10-14.) In their effort to force him inside, Ometu's head briefly collided with the top of the door frame. (Id.: 02:18:10-12.) After Day and Serna had successfully gotten Ometu's head and torso into the car, Ometu would not let them put his legs in as well. (Id.: 02:18:16-02:19:19.) Serna eventually instructed Day to go to the other side and “pull him through.” (Serna BWC: 14:19:22-24.) Once on the other side, Day began pulling Ometu further in while Serna continued to push at Ometu's legs from the other side. (Day DBC: 02:19:25-02:20:07.) As Day pulled him, Ometu screamed about being choked. (Day & Serna BWC: 14:19:30-14:20:10.)
During the struggle, the body-worn cameras of Day and Serna both fell to the ground. (Day BWC: 14:18:22-26; Serna BWC: 14:18:24-26.)
After Officers Day and Serna had gotten Ometu into the car, other officers arrived on the scene. (Serna BWC: 14:20:50-14:22:45.) Day explained to several of the responding officers that he managed to pull Ometu fully into the vehicle, by “grab[bing] him right here,” gesturing to just below his jaw, “and yank[ing] him in.” (Id.: 14:27:18-22.) Serna confirmed that “it was a struggle to get him in because he was all tensed up,” but that Day was able to pull him in by “grab[bing] him by the chin.” (Day BWC: 14:27:10-22.)Serna instructed two officers to go to Davenport's apartment, so that one could watch her kids while the other escorted her to Ometu's location for a showup. (Serna BWC: 14:22:42-14:23:10.) Upon arrival, Davenport sat in the back of a police cruiser while Serna showed her a photograph of Ometu on his phone. (Id.: 14:34:23-25.) She confirmed, unequivocally, that Ometu was not the assailant.(Id.: 14:34:25-56.)
Later on, Serna again described Day's technique for getting Ometu fully into the vehicle as “a right under the jaw-like right under his chin technique.” (Day BWC: 15:04:08-13.)
Sometime after Davenport cleared Ometu of the assault upon her, Day and Serna learned that the officer who went to Davenport's apartment to escort her to Ometu's location initially went to the wrong apartment because Smith gave him phony directions. (Day & Serna BWC: 15:09:2015:10:10.) That officer's body-cam footage, which is not in the record, apparently showed Smith wearing clothes matching Davenport's description of the assailant's clothing: “long black shorts to about his knees, sandals with no socks, and a green shirt.” (Id.: 15:10:15-24.)
Ometu was apparently held in custody in the patrol car for another hour before being informed that he was under arrest for “failure to ID and for assault on a PO.” (Serna BWC: 15:34:48-54.) After informing Ometu that he was under arrest, one of the responding officers again asked Ometu for his name, and again he refused to provide it: “Just take me to jail.” (Id.: 15:35:50-54.) The officer then asked Ometu to confirm whether he was refusing to provide his information; Ometu again ignored the officer. (Id.: 15:35:54-15:36:01.)
Plaintiff filed suit in state court, asserting claims against the City for failure to train, supervise, or discipline its police officers (Count I); excessive force by Officers Day and Serna in violation of the Fourth Amendment (Count II); conscience-shocking conduct by Day and Serna in violation of Fourteenth Amendment's protection of substantive due process (Count III); unlawful detention by Day and Serna in violation of the Fourth Amendment (Count IV); false imprisonment by Day and Serna in violation of the Fourth Amendment (Count V); negligence by Day and Serna in purported violation of the Fourth Amendment (Count VI); and assault and battery by Day and Serna, also purportedly in violation of the Fourth Amendment (Count VII). (Docket Entry 1 at 15, 17, 19, 21, & 23-25.)
The City and Ometu have filed cross-motions for summary judgment on the single claim against it. (See Docket Entries 42 and 49.) The officers and Ometu have also filed cross-motions, with the officers arguing, inter alia, they the claims against them should be dismissed based on qualified immunity (Docket Entry 62), and Ometu arguing that summary judgment should be granted on the claims of excessive force and unlawful arrest, as well as his suffering of an injury (Docket Entries 47 and 48). No response was filed to the officers' motion; however, in light of the other filings by the parties, all the motions are considered as opposed. (See Docket Entries 50, 52, 53, 55, 56, 58, 59, and 60.)
III. Summary Judgment Standard.
Summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Allen v. U.S. Postal Serv., 63 F.4th 292, 300 (5th Cir. 2023) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A disputed fact is material if it “might affect the outcome of the suit under the governing law.” Id. (quoting Anderson, 447 U.S. at 248). In short, the question for the Court is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.
“When parties file cross-motions for summary judgment,” the Court must “review each party's motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party.” McGlothin v. State Farm Mut. Ins. Co., 925 F.3d 741, 745 (5th Cir. 2019) (quoting Cooley v. Hous. Auth. Of Slidell, 747 F.3d 295, 298 (5th Cir. 2014)). However, the presumption in favor of the nonmovant's narrative vanishes when the record contains “a videotape capturing the events in question.” Scott v. Harris, 550 U.S. 372, 378 (2007). In that instance, the Court must “view[] the facts in the light depicted by the videotape.” Id. at 380-81.
Typically, the nonmovant on summary judgment “must bring forward evidence to create a genuine issue of material fact only after the movant shows entitlement to judgment as a matter of law.” Tiede v. Salazar, 518 F.Supp.3d 955, 965 (W.D. Tex. 2021) (quoting Giles v. Gen. Elec. Co., 245 F.3d 474, 493 (5th Cir. 2001)). But when, as in this case, a § 1983 defendant has asserted the defense of qualified immunity, “the plaintiff bears the burden of showing the defense does not apply.'” Perry v. Mendoza, 83 F.4th 313, 317 (5th Cir. 2023) (quoting Bryant v. Gillem, 965 F.3d 387, 391 (5th Cir. 2020)). Thus, qualified immunity “alters the usual summary judgment burden of proof, shifting it to the plaintiff to show that the defense is not available.” Id. (quoting Orr v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016)). Nevertheless, despite the shifted burden, courts must still “view the facts in the light most favorable to the nonmovant.” Tiede, 518 F.Supp.3d at 965 (quoting Darden v. City of Fort Worth, 880 F.3d 722, 727 (5th Cir. 2018).
IV. Analysis.
This Report and Recommendation addresses Ometu's claims in the order he presented them in his complaint. Thus, the Court begins with Ometu's claim against the City in Count I of the Complaint, and then turns to the Fourth Amendment claims against Officers Serna and Day in Counts II-VII.
Plaintiff also asserts in his Complaint that the officers violated his right to substantive due process-specifically, by violating his “liberty interest in personal security and freedom from restraint and infliction of pain through a course of conduct that shocks the conscience.” (Docket Entry 1 at 19.) To support this contention, Plaintiff describes being “forcibly seiz[ed],” “restrain[ed] . . . for extended periods of time,” and harmed by “unreasonable and unnecessary physical force.” (Id. at 19-20.) In other words, Plaintiff points to conduct covered by the Fourth Amendment to support his substantive due process claim. “[I]f 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.” Cnty. of Sacramento v. Lewis, 523 U.S.833, 843 (1998) (quoting United States v. Lanier, 520 U.S. 259, 272, n.7 (1997)). Ometu's Due Process allegations will therefore be addressed in connection with his allegations of false arrest and excessive force under the Fourth Amendment.
A. Count I: Failure to Train, Supervise, or Discipline.
A plaintiff may sue a municipality for a violation of federal rights that occurs “under color of any statute, ordinance, regulation, custom, or usage.” Edwards v. City of Balch Springs, Tex., 70 F.4th 302, 307 (5th Cir. 2023) (quoting 42 U.S.C. § 1983). To succeed on such a claim, the plaintiff must identify a federal right that was violated, including constitutional protections, “pursuant to an official municipal policy.” Liggins v. Duncanville, Tex., 52 F.4th 953, 955 (5th Cir. 2022). The plaintiff must identify “a policy-known by or created by a policymaker-that was the moving force behind the plaintiff's harm.” Id. (citing Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978)). Proof of a motivating policy is required because “a municipality cannot be made liable by application of the doctrine of respondeat superior.” Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986) (citing Monell, 436 U.S. at 691).
An inadequate training program may be the basis for municipal liability under § 1983. Bd. Of the Cnty. Comm'rs of Bryan Cnty. Ok. v. Brown, 520 U.S. 397, 407 (1997) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)). However, “[a] municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011). To be actionable under § 1983, a city's failure to properly train its employees must amount to “deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.” Id. (quoting Canton, 489 U.S. at 388). “[D]eliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Connick, 563 U.S. at 61 (quoting Bryan Cnty., 520 U.S. at 410). A city may deliberately indifferent if its policymakers had “actual or constructive notice” that a deficiency in the city's training program “cause[d] city employees to violate citizens' constitutional rights,” and nevertheless chose “to retain that program.” Connick, 563 U.S. at 61. A city's “‘policy of inaction' in light of notice that its program will cause constitutional violations ‘is the functional equivalent of a decision by the city itself to violate the Constitution.'” Id. at 6162.
“A pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train.” Connick, 563 U.S. at 62 (citing Bryan Cnty., 520 U.S. at 409). “[C]ontinued adherence” to an approach that policymakers “know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action-the ‘deliberate indifference'-necessary to trigger municipal liability.” Connick, 563 U.S. at 62 (quoting Bryan Cnty., 520 U.S. at 407). Conversely, “[w]ithout notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.” Connick, 563 U.S. at 62.
In this case, Ometu claims that the City “developed and maintained a policy of deficient training of its police force in the use of force in the apprehension and the wrongful detention of individuals.” (Docket Entry 1 at 16.) He further claims that the City's “failure to provide adequate training . . . reflect[s] deliberate indifference” on its part, and that the City's failure was the proximate cause of the officers' alleged violations of Ometu's constitutional rights. (Id.)
Contrary to these claims, Ometu has not produced any evidence-and there is none in the record-to establish a pattern of similar constitutional violations by deficiently trained police officers. Thus, even when construed in the light most favorable to Ometu, there is no record evidence from which the Court could infer that the City had actual or constructive notice that its training program caused police officers to violate citizens' Fourth Amendment rights. Consequently, no reasonable jury could conclude that the City had “deliberately chosen a training program that w[ould] cause violations of constitutional rights.” Connick, 563 U.S. at 62.
In addition to failing to present the evidence of a pattern of misconduct that is ordinarily necessary to prevail on a failure-to-train claim, Ometu has failed to counter the significant expert evidence that the City produced to show that its training program for police officers is sufficient. As an attachment to its motion, the City presented the expert report of Craig Miller, the Dallas Independent School District Chief of Police from 2011 to 2019. (Docket Entry 42-1.) Miller's report states that Officers Day and Serna “were provided exceptional training . . . regarding use of force and making arrests.” (Id. at 6.) In fact, Miller states in his report that the City's training program “excel[s] particularly in the areas of use of force, making arrests[,] and responding to family violence calls.” (Id.) Miller notes that, while the Texas Commission on Law Enforcement requires 667 hours of training for an individual to become a licensed police officer, the City requires “1,300 hours[:] . . . nearly twice as much.” (Id.) Ometu has presented no evidence to raise a genuine dispute that this training is inadequate.
Considering the lack of evidence of a pattern of misconduct, and the undisputed evidence of proper training by the City, Ometu has failed to demonstrate a genuine dispute on the deliberate-indifference element of his claim against the City, and the City is entitled to summary judgment.
B. Counts II-VII: The Claims Against Officers Day and Serna.
As noted above, Officers Day and Serna raise the defense of qualified immunity with regard to the § 1983 claims against them. Qualified immunity is a significant defense with regard to alleged constitutional violations, “provid[ing] ample protection to all but the plainly incompetent or those who knowingly violate the law.” Maley v. Briggs, 475 U.S. 335, 341 (1986).
In considering a qualified-immunity defense, the Court engages in a two-pronged inquiry. Tiede, 518 F.Supp.3d at 966 (citing Tolan v. Cotton, 572 U.S. 650, 655 (2014)). Under the first prong, the Court must determine whether the facts alleged by the plaintiff establish or “make out a violation of a constitutional right.” Tiede 518 F.Supp.3d at 966 (quoting Darden 880 F.3d at 727). Under the second prong, the Court must determine whether the defendant's actions “were objectively reasonable in light of the law that was ‘clearly established' at the time of the alleged constitutional violation.” Tiede 518 F.Supp.3d at 966 (citing Darden 880 F.3d at 727). Courts have discretion to address these prongs in any order and need not address both when one is sufficient to determine that qualified immunity is appropriate. Pearson v. Callahan, 555 U.S. 223, 236, 243-45 (2009).
A defendant's conduct violates clearly established law only when, at the time of the challenged conduct, “[t]he contours of [a] right [are] sufficiently clear that every ‘reasonable official would [have understood] that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (emphasis added) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987) (internal quotations omitted). Thus, “[i]f reasonable officials could differ on the lawfulness of the defendant's conduct, the defendant is entitled to qualified immunity.” Tiede, 518 F.Supp.3d at 866 (citing Zarnow v City of Wichita Falls, Tex., 500 F.3d 401, 407-08 (5th Cir. 2007)).
The clearly-established prong “depends substantially upon the level of generality at which the relevant ‘legal rule' is to be identified.” Anderson, 483 U.S. at 739. “The dispositive question is ‘whether the violative nature of particular conduct is clearly established.'” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (emphasis in original) (quoting al-Kidd, 563 U.S. at 742); see also Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011) (“[G]eneralizations and abstract propositions are not capable of clearly establishing the law.”) (citing Wilson v. Layne, 526 U.S. 603, 618 (1999)). Accordingly, “[c]learly established law is determined by controlling authority-or a robust consensus of persuasive authority-that defines the contours of the right in question with a high degree of particularity.” Clarkston v. White, 943 F.3d 988, 993 (5th Cir. 2019). While “caselaw does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.” Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018). “Specificity is especially important in the Fourth Amendment context, where . . . it is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation the officer confronts.” Id. (quoting Mullenix, 577 U.S. at 12).
With these general principles in place, this Report and Recommendation turns to Ometu's particular claims against the officers.
1. Count II: Excessive Force.
“[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989). “Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers . . . violates the Fourth Amendment.” Id. Thus, to prevail on an excessive force claim, a plaintiff must establish “(1) [an] injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” Darden, 880 F.3d at 727 (quoting Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016)). Excessiveness and unreasonableness are intertwined concepts that are considered together. Darden, 880 F.3d at 728.
The reasonableness inquiry “is an objective one: the question is whether the officers' actions are ‘objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S at 397. Objective reasonableness is “judged from the perspective of a reasonable officer on the scene,” allowing for the fact that officers must “make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Id. Accordingly, the Court must “consider[] only the facts that were knowable to the defendant officers.” White v. Pauly, 580 U.S. 73, 77 (2017). “Facts [that] an officer learns after the incident ends-whether those facts would support granting immunity or denying it-are not relevant.” Hernandez v. Mesa, 582 U.S. 548, 554 (2017).
Excessive force claims are fact-intensive, turning on a case's particular facts and circumstances. Id. at 396; Darden 880 F.3d at 727. In determining whether a use of force was objectively reasonable, courts must consider the totality of the circumstances, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Darden, 880 F.3d at 728-29 (quoting Graham, 490 U.S. at 396). Courts may also consider “the relationship between the need for the use of force and the amount of force used,” along with “the extent of the plaintiff's injury,” if any, and “any effort made by the officer to temper or to limit the amount of force.” Frank v. Parnell, No. 22-30408, 2023 WL 5814938, at *3 (5th Cir. Sept. 8, 2023) (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)).
Ometu argues that Officers Day and Serna used “excessive, unreasonable, and unnecessary physical force.” (Docket Entries 47 at 10; 48 at 9.) Ometu argues that they caused his face to “hit the top of the roof of the vehicle,” “press[ed] on . . . [his] back,” “yanked . . . [his] neck,” and “caused . . . [his] legs to be twisted and placed . . . [in] uncomfortable positions.” (Docket Entries 47 at 10-11; 48 at 9-10.) Ometu also argues that the force was unreasonable because he “did not pose an immediate threat to the safety of [the] Officers . . . or others.” (Docket Entries 47 at 11; 48 at 10.)
The officers counter that “the force they used was objectively reasonable.” (Docket Entry 62 at 24.) They acknowledge that Ometu, “while uncooperative and argumentative,” did not pose a serious threat to their safety and was not an obvious flight risk after he was handcuffed. (Id. at 25.) However, they argue that “the severity of the crime at issue”-an alleged family violence assault-weighed in favor of the reasonableness of the force they used. (Id.) They further argue that the force used was necessary because Ometu refused to comply with their orders to enter the car on his own. (Id.) Officers Day and Serna also stress that they “never kicked, punched, tased, or struck” Ometu, relying instead on “open-hand techniques.” (Id. at 26.) They contend that it was only “[w]hen pushing failed” to get Ometu fully inside of Serna's vehicle that Day “resort[ed] to pulling Ometu's head, from under his lower jaw.” (Id.) They emphasize that no use of force would have been necessary “if Ometu had not actively resisted transport.” (Id.)
Considering these factors in their totality, the Court should find that the officers committed no constitutional violation. At the time they began forcing Ometu into the back of Serna's vehicle, Day and Serna suspected that Ometu had recently choked his ex-wife until she lost consciousness. (Day & Serna BWC: 13:53:39-44; 14:18:00-04.) “When considering the severity of a crime under Graham, courts will normally consider the inherent violence of the offense.” Campbell v. City of Indianola, 117 F.Supp.3d 854, 869 (N.D. Miss. 2015) (citations omitted); see also West v. City of League City, No. 3:21-CV-371, 2023 WL 5760032, at *6 (S.D. Tex. Mar. 31, 2023) (finding that severity of a “third-degree felony assault” weighed in favor of objective reasonableness of force used).Thus, the severity of the alleged crime at issue supported the reasonableness of their use of force.
The undersigned notes that it is a third-degree felony in Texas to cause bodily injury to one's ex-spouse by “impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck . . .” TEX. PENAL CODE ANN. § 22.01(b)(2)(B).
By contrast, the immediacy of the threat weighs against the use of force. It is true that Officers Serna and Day suspected Ometu's refusal was because he was in fact Smith, who had a felony arrest warrant for robbery. (Serna BWC: 14:15:58-14:16:05.) While this reasonable belief supported the risk that Ometu was dangerous, by that time he was already in handcuffs, which Day and Serna concede rendered him neither “a serious threat to their safety” nor “an obvious flight risk.” (Docket Entry 62 at 24.)
Ometu's resistance throughout the encounter, however, weighs strongly in favor of the officers' use of force. Ometu repeatedly disobeyed direct orders from Officer Serna to get into the back of his vehicle. (Day & Serna BWC: 13:54:33-13:55:06; 14:17:30-40; 14:18:05-10.) It was only after these multiple refusals to comply with their orders that the officers put their hands on Ometu and began to physically guide him into the cabin of Serna's vehicle. (Id.: 14:18:07-09; Day DBC: 02:18:03-08.) And the video evidence makes clear that it was only after Ometu began physically resisting by pushing his body back against the officers that they began pushing Ometu forcefully into the vehicle. (Day DBC: 02:18:06-13; Day & Serna BWC: 14:18:10-15.) And it was only after Ometu refused to pull his legs into the car-or allow the officers to place them in the car for him-that Officer Day went to the other side of the vehicle to pull Ometu further into the cabin. (Day DBC: 02:19:19-32.)
Furthermore, the amount of force used was proportional to Day and Serna's objective of getting Ometu into Serna's vehicle despite his resistance. See Frank, 2023 WL 5814938, at *3 (instructing courts to consider “the relationship between the need for the use of force and the amount of force used”). Additionally, the extent of Ometu's alleged injury belies any assertion that the amount of force used was objectively excessive, consisting only of pain and emotional suffering. See id. (instructing courts to consider “the extent of the plaintiff's injury” in determining whether the force used was objectively excessive). Finally, Day and Serna's use of force was not objectively excessive considering that it was limited to pushing and pulling. See id. (instructing courts to consider “any effort made by the officer[s] to temper or to limit the amount of force”).
Officers Day and Serna argue that Ometu's alleged injuries cannot support an excessive force claim because they are de minimis. (Id. at 27.) However, “even relatively insignificant injuries and purely psychological injuries” will suffice “when resulting from an officer's unreasonably excessive force.” Id. (citing Schmidt v. Gray, 399 Fed.Appx. 925, 928 (5th Cir. 2010); Flores v. City of Palacios, 381 F.3d 391, 398 (5th Cir. 2004); Ikerd v. Blair, 101 F.3d 430, 434 (1996).
For the reasons stated above, the officers' use of force was not objectively excessive under the circumstances; accordingly, there was no constitutional violation. However, even if there was a genuine dispute on this issue, Officers Day and Serna would be entitled to qualified immunity. Because Ometu has the burden of defeating qualified immunity, see Perry, 83 F.4th at 317, he is required to “point[] out the clearly established law and rais[e] a fact issue as to its violation.” Delaughter v. Woodall, 909 F.3d 130, 139 (5th Cir. 2018) (citing Thompson v. Mercer, 762 F.3d 433, 437, 441 (5th Cir. 2014)). To do so, Ometu “must identify a case in which an officer acting under similar circumstances was held to have violated the Constitution, and explain why the case clearly proscribed the conduct of that individual officer.” Cope v. Cogdill, 3 F.4th 198, 205 (5th Cir. 2021).
The constitutional rule that Ometu suggests was clearly established is: “the right to be free from excessive force during a seizure.” (Docket Entries 47 at 17; 48 at 16.) But such “[b]road general propositions are not enough to overcome qualified immunity.” Cope, 3 F.4th at 205; Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (“[T]here is no doubt that Graham . . . clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness[: y]et that is not enough.”).
Under the clearly-established prong, Officers Day and Serna are entitled to summary judgment unless “existing precedent” placed the constitutional question at issue “beyond debate.” Kisela, 138 S.Ct. at 1152. And because the need for specificity is at its zenith in the Fourth Amendment context, existing precedent must squarely govern the specific facts and context at issue in this case. Id. at 1153; Mullenix, 577 U.S. at 13-15. Thus, calibrated to its appropriate level of specificity, Ometu was required to show that, on August 25, 2020, it was clearly established that police officers may not push or pull into their vehicle a hostile detainee suspected of recent violence, even though the detainee has disobeyed repeated commands to enter the vehicle on his own. Ometu has identified no caselaw to support such a proposition, and the Court is aware of none. Because Ometu failed to meet his burden on the second prong, Day and Serna are entitled to qualified immunity as to his excessive force claim.
2. Count IV & V: Unlawful Seizure and False Imprisonment.
a. The parties' arguments.
Ometu claims that Officers Day and Serna “unlawfully detained” and “unlawfully confined” him, “without probable cause, or reasonable suspicion that any violation or crime had been committed,” and “without the consent of [Ometu].” (Docket Entry 1 at 21, 24.) Ometu contends that “there is no resemblance” between himself and the assailant, Darren Smith, such that there was neither probable cause nor reasonable suspicion to support his detention. (Id. at 12.) In his motions for summary judgment against the two officers, Ometu argues that “[t]he right to be free from arrest without probable cause is a clearly established constitutional right.” (Docket Entries 47 at 19; 48 at 18 (quoting Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994).) And an arrest is unlawful “unless it is supported by probable cause.” (Docket Entries 47 at 19; 48 at 18 (quoting Flores, 381 F.3d at 402) In support of his motions, Ometu attached the side-by-side photographs of Smith and Ometu set out above. (Docket Entries 47 at 24; 48 at 22.)
In their motion, Officers Day and Serna argue that they had probable cause to arrest Ometu for assaulting Davenport until the time that Davenport stated that Ometu was not the assailant, Darren Smith. (Docket Entry 62 at 8; see Serna BWC: 14:34:25-56.) They argue that, based on Davenport's description of Smith, they were looking for someone “dressed like and resembling Ometu,” who was “on foot” in the area where they found Ometu. (Docket Entry 62 at 8.) They further note that they intercepted Ometu “near, but running away from the scene of the recent crime,” and that his “conduct and demeanor once he was stopped added to the probable cause for his arrest....” (Id. at 10.) Finally, they argue that, upon learning that Smith had an arrest warrant for felony robbery, Ometu's persistent refusal to identify himself became all the more suspicious, further supporting the officers' probable cause to believe that Ometu was in fact Smith. (Id. at 11.)
Officers Day and Serna alternatively argue that, even if they did not have probable cause to arrest Ometu for assaulting Davenport, they had reasonable suspicion “to detain him in connection with the investigation of that assault.” (Docket Entry 62 at 17-18.) They note that “Ometu was stopped around 1:52 P.M.,” and that “Serna spent the next 25 or so minutes in diligent investigative inquiry to definitively confirm or rule out Ometu as the assailant.” (Id. at 19.) Specifically, Serna “called Davenport multiple times,” asked another officer to “go to Davenport and called that officer to learn more information,” tried unsuccessfully “to have Davenport brought to Ometu's location,” and frequently asked Ometu for his name to see if it matched name that Davenport had provided. (Id. at 19-20.) Day and Serna emphasize that it was only “after trying for about 25 minutes” that they “decided to transport Ometu ....approximately 1,000 feet from the location where he had been stopped .... to Davenport's location for identification.” (Id. at 20.) “The transport,” they argue, was “an essential part of Day and Serna's investigation,” in that it would quickly “confirm or eliminate Ometu as the correct suspect.” (Id. at 21.)
Day and Serna also argue that they had probable cause to arrest Ometu for (1) failure to identify; (2) resisting arrest or transport; and (3) assaulting a public servant during the lawful discharge of their duty. (Docket Entry 62, at 13-15.) They point out that Ometu refused to identify himself upon request “after he was explicitly informed that he was under arrest at 3:44 p.m.” (Id. at 13.) See TEX. PENAL CODE § 38.02 (making it an offense for someone to “intentionally refuse[] to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information”).Day and Serna argue that Ometu also “forcefully resisted” their efforts to transport him to Davenport's apartment nearby, even though he knew they were police officers. (Docket Entry 62 at 14.) See TEX. PENAL CODE § 38.03(a) (making it an offense for someone to “intentionally prevent[] or obstruct[] a person he knows is a peace officer . . . from effecting . . . transportation of the actor . . . by using force against the peace officer or another”). And finally, they argue that, during their scuffle trying to get Ometu into Serna's car, “Ometu kicked Day in the face . . . [and] abdomen, . . . [and] kicked Serna in the lower leg.” (Docket Entry 62 at 15.) See TEX. PENAL CODE §§ 22.01(a)(1), (3) (making it a felony to cause bodily injury to “a person the actor knows is a public servant . . . lawfully discharging an official duty”); 22.01(b)(1) (making it an offense to “intentionally or knowingly cause[] physical contact with another when the person . . . should reasonable believe that the other will regard the contact as offensive or provocative”).
Cf. note 4 supra.
b. Discussion.
As is common in § 1983 cases raising Fourth Amendment claims, the encounter between Ometu and the police in this case escalated from an initial investigative detention to a formal arrest. These levels of encounter are subject to different constitutional rules. “[T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot'....” Turner v. Lieutenant Driver, 848 F.3d 678, 690 (5th Cir. 2017) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989), and Terry v. Ohio, 392 U.S. 1, 30 (1968)). In determining whether a detention is supported by reasonable suspicion, courts must look at the totality of the circumstances “to see whether the detaining officer ha[d] a ‘particularized and objective basis' for suspecting legal wrongdoing.” Turner, 848 F.3d at 691 (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). Although a detention may not be justified merely by an officer's hunch, “the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Arvizu, 534 U.S. at 274.
In contrast to an investigative detention, and arrest requires probable cause, which arises “when the totality of the facts and circumstances . . . are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.” Lincoln v. Turner, 874 F.3d 833, 842 (5th Cir. 2017). “A seizure rises to the level of an arrest only if ‘a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.'” Turner v. Lieutenant Driver, 848 F.3d 678, 693 (5th Cir. 2017) (quoting Carroll v. Ellington, 800 F.3d 154, 170 (5th Cir. 2015)). The “reasonable person,” in turn, is one who is “neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.” Turner, 848 F.3d at 693 (quoting United States v. Corral-Franco, 848 F.2d 536, 540 (1988)).
“When determining whether an investigative stop amounts to an arrest, ‘[t]he relevant inquiry is always one of reasonableness under the circumstances,' which must be considered on a case-by-case basis.” Turner, 848 F.3d at 693 (quoting United States v. Sanders, 994 F.2d 200, 206-07 (5th Cir. 1993)). “[U]sing some force on a suspect, pointing a weapon at a suspect, ordering a suspect to lie on the ground, and handcuffing a suspect-whether singly or in combination-do not automatically convert an investigatory detention into an arrest requiring probable cause.” Turner, 848 F.3d at 693 (quoting Sanders, 994 F.2d at 206). However, “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Turner, 848 F.3d at 693 (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). There are no rigid limitations on the duration of investigative stops; rather, the appropriate duration is a function of “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.” Turner, 848 F.3d at 693 (United States v. Sharpe, 470 U.S. 675, 685-86 (1985)); see also United States v Brigham, 382 F.3d 500, 511 (5th Cir. 2004) (explaining that there is “no constitutional stopwatch” for investigative detentions).
In light of the differing standards that apply, the Court must determine when Ometu's seizure escalated from an investigatory detention to an arrest. For purposes of making this determination, Ometu's seizure should be divided not two parts: (a) his initial detention, from when he was first approach by officers until they attempted to transport him to Davenport's apartment (see Serna BWC: 13:52:57-14:18:10); and (2) the remainder of his seizure, during which he was held in the patrol car, identified by Davenport as not being her assailant, and placed under arrest for refusal to identify himself and assaulting a police officer (see Day & Serna BWC: 14:20:1015:34:55).
Ometu's initial detention. For the reasons stated below, there is no genuine dispute that Ometu's seizure during those roughly 25 minutes was not an arrest but, rather, an investigative detention. And that detention supported by reasonable suspicion.
As recounted in Part II above, Davenport called the police to report that she had been choked in her apartment. (Docket Entry 42-2 at 108.) Officer Serna responded to the call; on his way into the apartment complex, he saw Ometu leaving on foot. (Serna DBC: 13:38:50-55.) Davenport told Serna that the assailant was a black man, wearing green, who had just left the complex on foot. (Serna BWC: 13:50:00-16, 23-28.) When asked whether he had a beard, Davenport responded ambiguously: “Kind of.” (Id.: 13:50:17-23.) Davenport's description of her assailant fairly matched Ometu and provided the officers with reasonable suspicion to locate and detain Ometu in order to determine whether he was, in fact, the person who choked Davenport.
Officer Day spotted Ometu jogging away from the scene of the crime and alerted Officer Serna to his location. (Day DBC: 01:52:03-14; Day BWC: 13:52:13-26.) Serna caught up to Ometu and initiated the stop. (Serna DBC: 13:52:48-13:53:25.) He asked for Ometu's name, but Ometu refused to provide it. (Serna BWC: 13:53:00-22.) Serna twice explained the reason why he was stopping Ometu and why he wanted to know his name, but Ometu persisted in refusing to identify himself. (Id.: 13:52:22-13:53:44.) Serna then handcuffed Ometu, contemporaneously explaining that this was a temporary measure until he could determine Ometu's identity. (Day & Serna BWC: 13:53:51-13:54:05.) Ometu's aggressive demeanor, his obstinate refusal to identify himself, and the officers' reasonable suspicion that he may have recently choked Davenport supported handcuffing Ometu as a safety precaution for the duration of the investigative detention. See, e.g., United States v. Scroggins, 599 F.3d 433, 441 (5th Cir. 2010) (noting officers may handcuff “hostile suspect[s] . . . to safely conduct their investigation.”). Handcuffing Ometu did “not automatically convert an investigatory detention into an arrest requiring probable cause.” United States v. Jordan, 232 F.3d 447, 450 (5th Cir. 2000).
Officer Serna stepped away several times, leaving Ometu under Officer Day's supervision, always to gather additional information about the assailant or to coordinate with Davenport so that she could observe Ometu and confirm whether he was the assailant. (See e.g., Serna BWC: 13:55:42; 14:00:04-12; 14:02:19-24; 14:14:42-14:15:17; 14:15:31-35; 14:17:03-10.) Periodically, Serna would return to Ometu to solicit his name, but each time he was met with the same refusal and indignation. (Day & Serna BWC: 13:58:42-55; 14:03:13-18.) While Serna was gathering additional information, Day explained to Ometu that he was not under arrest but merely being detained until they could complete their investigation and determine whether Ometu was Davenport's assailant. (Day BWC: 14:01:45-14:02:18.) Ometu acknowledged that he was detained, rather than arrested, asking questions like “[w]hat am I being detained for?” (Id.: 14:01:50-55.) These circumstances make indisputably clear that, during this period, Ometu was not under arrest. Compare United States v. Coulter, 41 F.4th 451, 561 (5th Cir. 2022) (holding handcuffed suspect was not arrested where “objective concerns for officer safety necessitated . . . handcuffs;” the detaining officers gave multiple assurances that suspect was merely detained; and suspect “implicitly acknowledged the limited purpose of the restraint....”) with Turner, 848 F.3d at 693-94 (holding handcuffs converted detention into arrest when “the officers were not taking investigative steps to determine who [t]he [suspect] was (aside from repeatedly asking him for identification)” and when nothing suggested that the suspect “posed a threat that required such restraint”).
While gathering additional information, Officer Serna came upon a 2017 mugshot of the Smith. (Serna BWC: 13:57:38-42; 13:58:19-31.) The officers believed, albeit mistakenly, that Ometu was the person depicted in the photograph. (Day & Serna BWC: 14:49:10-15; 15:06:2456.) They noted that the photograph was three years old, and that the person depicted could have grown a beard since the time the photograph was taken. (Id.: 15:06:56-15:07:11.) Thus, while the officers were mistaken, their mistake was not so unreasonable as to vitiate their suspicion of Ometu. See Vernon v. Davis, No. 4:15-CV-855-Y, 2017 WL 1354150, at *6 (N.D. Tex. Apr. 13, 2017) (“Reasonable mistakes about facts may still legitimately justify an officer's conclusion that reasonable suspicion exists.”).
Along with the photograph, Officer Serna also learned that Smith had an outstanding arrest warrant for felony robbery charges. (Serna BWC: 14:15:58-14:16:05.) This discovery supported a reasonable inference that Ometu's dogged refusal to identify himself was because he was, in fact, Smith and knew that revealing his identity would lead to his arrest pursuant to that warrant. Such an inference supported Ometu's continued detention while Serna worked to confirm whether he had anything to do with Davenport's assault. These facts also supported Ometu's remaining in handcuffs. See Turner, 848 F.3d at 693 n.74 (noting connection between a detainee's awareness of a warrant and their being “potentially dangerous and a flight risk”).
As he investigated further, Officer Serna gathered additional details about the assailant's appearance from Davenport and a third officer at Davenport's apartment. (Serna BWC: 13:56:1216; 14:14:42-14:15:17; 14:15:31-35.) Importantly, Davenport told Serna that the assailant was not wearing a hat when he left her apartment. (Id.: 13:56:12-16.) Ometu, however, was wearing a baseball cap throughout the stop. (See generally Day & Serna BWC.) This weakened the suspicion of Ometu, but it did not dispel it. According to the facts gathered by the officers, the assailant apparently went to his car, which was parked just outside of Davenport's apartment, and locked himself out with the engine running before eventually leaving the apartment complex on foot. (Serna BWC: 13:49:55-13:50:02; 13:40:12-14; 13:50:34-40; 14:12:12-22; 14:58:23-34.) The assailant easily could have taken a hat from the car before leaving.
To be sure, the presence of a baseball cap was not the only notable inconsistency between Davenport's description of her assailant and the officers' observations of Ometu: (1) Ometu had a full beard, but the assailant was said only to “kind of” have a beard, (2) Ometu was wearing white basketball shorts with thigh-wide black stripes down its sides, while the assailant was described as wearing black basketball shorts, and (3) Ometu was of large stature while the assailant was described as having a medium build. (See id.: 14:15:18-30; Day BWC: 14:01:21-29; 15:05:5659.) Construed in Ometu's favor, these inconsistencies sufficed to deprive the officers of probable cause to arrest Ometu for assaulting Davenport. They did not, however, deprive the officers of their reasonable suspicion to investigate further. Officers Day and Serna were looking for a black man, with some amount of facial hair, who was on foot in the vicinity of Davenport's apartment, wearing basketball shorts and a green shirt. Ometu fit that description, even if other details did not precisely match. These circumstances, in combination with Ometu's refusal to disclose his name, his combativeness, and the fact that the assailant could have had reason to withhold his name due to an active arrest warrant, provided Day and Serna the reasonable suspicion they needed to continue detaining Ometu until they could determine his identity.
The officers' efforts to transport Ometu to Davenport's apartment did not convert the investigative detention into an arrest. As the Fifth Circuit has made clear, “moving a suspect” does not automatically convert a detention to an arrest when it is “only a short distance.” United States v. Bengivenga, 845 F.2d 593, 599 (5th Cir. 1988) (en banc). To the contrary, “police may move a suspect without exceeding the bounds of an investigative detention when it is a reasonable means of achieving the legitimate goals of the detention given the specific circumstances of the case.” United States v. White, 584 F.3d 935, 953 (10th Cir. 2009). And courts have specifically sanctioned transporting detainees for purposes of identification. See, e.g., United States v. McCargo, 464 F.3d 192, 198 (2d Cir. 2006) (“[P]olice may transport a suspect short distances in aid of a Terry stop .... [when] the victim might be able to identify the perpetrator.”); Gallegos v. City of Los Angeles, 308 F.3d 987, 991 (9th Cir. 2002) (officers acted reasonably in transporting detainee by car for “a short distance to the scene of the crime for a showup”). In this case, the officers' attempts to transport Ometu had the legitimate purpose of confirming definitively whether Ometu was the assailant.
In hindsight, it seems clear that the mission could have been accomplished more easily by simply sending a photograph of Ometu to the third officer, at Davenport's apartment, where she could then confirm whether Ometu was the assailant. But the Court must refrain from using hindsight to scrutinize the officers' conduct. See Blackwell v. Barton, 34 F.3d 298, 304 (5th Cir. 1994) (“[W]e may not determine the reasonableness of . . . [an Officer's] actions by considering, with the benefit of hindsight, what other, more reasonable actions might have been available to him.”). Under the circumstances, the officers' decision to bring Davenport and Ometu into each other's presence for identification purposes was a reasonable and diligent means of completing the detention's mission. Their conduct was supported by reasonable suspicion, and no constitutional violation occurred.
The remainder of Ometu's seizure. Once Ometu began to resist the officers' efforts to transport him, he actually committed a crime in their presence. As the Texas Penal Code states, “[a] person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer . . . from effecting an arrest, search, or transportation of the actor . . . by using force against the peace officer.” TEX. PENAL CODE § 38.03(a) (emphasis added). “Force” need be no more than “constraint” or “physical aggression,” and it is used against a peace officer if it is “in the direction of and/or into contact with, or in opposition or hostility to, a peace officer.” Finley v. State, 484 S.W.3d 926, 928 (Tex. Crim. App. 2016). Here, the video shows Ometu using his weight to push against the officers as they tried to get him into Serna's car. (Day DBC: 02:18:08-10; Day & Serna BWC: 14:18:10-12; Serna BSC: 14:18:07-10.) Thus, Ometu used force in opposition and hostility to Day and Serna, as he resisted their efforts to transport him. This offense, in the officers' presence, provided them with probable cause to arrest. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”). Accordingly, the officers had ongoing probable cause to arrest Ometu regardless of the fact that Davenport eventually exculpated him for the assault that originated the investigation.
Once the officers had gotten Ometu's head and torso into the vehicle, the video footage clearly depicts Ometu kicking Day in the chest, which is also, a fortiori, force in opposition to Day. (Serna BSC: 14:18:36-40.) Moreover, this was yet another crime committed in the presence of-indeed, directly upon-the officers. See TEX. PENAL CODE § 22.01(a)(1), (3), (b)(1) (making it a felony to “intentionally, knowingly, or recklessly cause[] bodily injury to another . . . [or] physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative,” when the actor knows the person “is a public servant . . . lawfully discharging an official duty....”).
In sum, there is no genuine dispute that the officers had reasonable suspicion to detain Ometu during the first part of their investigation, and they acted reasonably in handcuffing him and attempting to transport him to Davenport's apartment. After that, Ometu's conduct provided the officers with probable cause to arrest. Accordingly, Ometu cannot show a constitutional violation, and Officers Day and Serna are entitled to qualified immunity, and hence summary judgment, on Ometu's claims of unlawful seizure and false imprisonment.
As with Ometu's excessive force claim, even if he had shown a constitutional violation, he has failed to meet his burden of “pointing out the clearly established law” that would defeat qualified immunity. Delaughter, 909 F.3d at 139. Calibrated to an appropriate level of specificity, Ometu was required to present caselaw clearly establishing that, the officers' actions in detaining, handcuffing, and attempting to transport him could not be justified by reasonable suspicion, or that their later actions were not supported by probable cause. Ometu has identified no such caselaw, and the Court is aware of none.
3. Count VI: Negligence.
Ometu also seeks damages under § 1983 on the grounds that Defendants acted negligently, in violation of the Fourth and Fourteenth Amendments. (Docket Entry 1 at 24.) Ometu presents no evidence or argument in support of this claim in his motion for summary judgment, or in his reply in support thereof. (See Docket Entries 47 & 60.) Nor could he. In his complaint, Ometu argues that Officers Day and Serna failed “to exercise due care to ensure probable cause exist[ed] before subjecting . . . [him] to unlawful arrest and detention.” (Docket Entry 1 at 25.) These arguments mirror Ometu's Fourth Amendment arguments which have already been addressed. See Lewis, 523 U.S.at 843 (requiring that conduct covered by specific constitutional provision be analyzed under standard appropriate to that provision).
Additionally, Ometu cannot assert a § 1983 claim for negligence under the Fourteenth Amendment Due Process Clause. Negligence claims are “categorically beneath the threshold of constitutional due process.” Id. at 849. Indeed, “[f]ar from an abuse of power, lack of due care suggests no more than a failure to measure up to the conduct of a reasonable person.” Daniels v. Williams, 474 U.S. 327, 331 (1986). And to allow § 1983 claims on such grounds “would trivialize . . . due process of law.” Id. Thus-because the Supreme Court has warned not to “make of the Fourteenth Amendment a font of tort law,” Paul v. Davis, 424 U.S. 693, 701 (1976)- Defendants are entitled to summary judgment on Plaintiff's negligence claim.
4. Count VII: Assault and Battery.
Ometu's final § 1983 claim is that Officers Day and Serna committed assault and battery, in violation of the Fourth and Fourteenth Amendments.(Docket Entry 1 at 25.) Ometu presents no evidence or argument in support of this claim in his motions for summary judgment, other than asserting that he was “assaulted through use of excessive force.” (Docket Entries 47 at 13; 48 at 12.) Moreover, the conduct Plaintiff cites in his complaint to support this claim is the same conduct underwriting his excessive force claim: “physically violent force .... [that was] unnecessary, excessive, and unreasonable under the circumstances.” (Id. at 26.) Accordingly, this claim has already been addressed and disposed of in § B, supra. See Lewis, 523 U.S. at 843 (requiring conduct covered by specific constitutional provision be analyzed under the standard appropriate to that provision). And, again, because the Fourteenth Amendment is not “a font of tort law,” Ometu has no cognizable § 1983 claim for assault and battery that may “be superimposed upon whatever systems may already be administered by the State[]” of Texas. See Paul, 424 U.S. at 701. Accordingly, Day and Serna are entitled summary judgment on Ometu's assault and battery claim.
Ometu does not assert any assault and battery claims under Texas common law-only under the Fourth and Fourteenth Amendments to the United States Constitution, pursuant to § 1983. Even if he had, the result would be the same. “The actions of a police officer in making an arrest necessarily involve a battery, although the conduct may not be actionable because of privilege.” City of Watauga v. Gordon, 434 S.W.3d 586, 594 (Tex. 2014). And an “officer is privileged to use reasonable force.” Id. As stated supra, the officers' use of force in handcuffing and attempting to transport Ometu was reasonable.
V. Conclusion and Recommendation.
For the foregoing reasons, I recommend that the Court GRANT the City's motion for summary judgment (Docket Entry 42), DENY Ometu's motions for summary judgment (Docket Entries 47, 48, and 49), and GRANT the officers' motion for summary judgment (Docket Entry 62). Furthermore, because the officers motion for summary judgment should be granted, I recommend that their request to dismiss on the pleadings on similar grounds (id.) be DENIED AS MOOT.
VI. Notice of Right to Object
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the Clerk of Court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of the same, unless this time period is modified by the District Court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The parties shall file any objections with the Clerk of the Court and serve the objections on all other parties. Absent leave of Court, objections are limited to twenty (20) pages in length. An objecting party must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the party from a de novo review by the District Court. Thomas v Arn, 474 U.S. 140, 149-52 (1985); Acuna v Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to, proposed findings and conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).