Opinion
Civil Action No. 3:99-CV-0453-G.
March 6, 2000.
MEMORANDUM ORDER
Before the court are the motions of the defendants Richardson Police Officer G. Pierce ("Pierce") and the City of Richardson, Texas (the "City") to dismiss the complaint against them. For the following reasons, the defendants' motions are denied.
I. BACKGROUND
On August 21, 1998, Stacy Ferrell ("Ferrell"), another defendant in this case, entered into a contractual relationship with a business known as Almost New, a consignment store owned and operated by the plaintiff Elizabeth Weddle ("Weddle"). Plaintiff's First Amended Complaint ("Complaint") ¶ 2. Under this contract, Ferrell agreed to place clothing for sale on consignment, and to leave the clothes with Weddle at Almost New until she was notified to pick up any clothing remaining unsold. Id. However, on January 28, 1999, Ferrell entered Almost New and demanded that the clothing that she had placed on consignment be returned to her immediately. Id. ¶ 7. The employee on duty at the time explained to Ferrell that only Weddle could handle that request, and that Weddle was not in the store at that time. Id. Ferrell became angry, threw a book at the employee, and left the store. Id.
Later that same day, Ferrell returned to the store with two uniformed Richardson Police Officers, one of whom was Pierce, and a man dressed in civilian clothing who was identified by Ferrell at one time as her boyfriend and an off-duty Richardson Police Officer and at a later time as her boyfriend who was working in "security." Id. This individual appeared to Weddle to be a personal friend of Pierce, and he told Pierce what actions to take throughout the course of the confrontation. Id. According to Weddle, Pierce demanded that Weddle stop what she was doing and immediately find and return the clothing that Ferrell had placed with the business on consignment. Id. Weddle explained that she normally returned consignments on Mondays when the store was closed for restocking, return of merchandise, and other work. Id. She then attempted to show Pierce the consignment agreement signed by Ferrell, but Pierce responded by getting angry and demanding to see Weddle's "ID." Id.
Weddle alleges that she did not want Ferrell, who had already acted "irrationally" towards one of Weddle's employees earlier in the day, to have her home address, so she attempted to show Pierce a Visa card with her photograph and name imprinted on it. Id. Pierce again demanded to see Weddle's driver's license, but when she refused, Pierce told her that she would go to jail if she did not show him her identification. Id. Weddle alleges that Pierce continued to threaten her with jail unless she produced her Texas driver's license, even though nothing in the record indicates that she had, or that Pierce believed she had, committed a crime. Id. When Pierce finally obtained Weddle's license, he wrote down her personal information, including her date of birth and her home address, and gave this information to Ferrell. Id. He then told Ferrell that she needed to pass this information out to everyone she knew so that they would not shop at Weddle's store. Id. Before he left, Pierce told Weddle that Ferrell would be back on Monday, and that "she had better give her everything that belonged to her" at that time. Weddle took this to mean that Pierce would again use his position as a police officer to assist Ferrell by intimidating Weddle if she did not comply with his orders. Id.
On February 1, 1999, Weddle filed suit against Ferrell, Pierce, and the City in state court in Dallas County, Texas, alleging, inter alia, intentional infliction of emotional distress and "denial of due process." See Plaintiff's Original Petition ¶¶ 6-9, attached as Exhibit 2 to Notice of Removal. Weddle also applied for and received a temporary restraining order that barred Ferrell from entering the premises of Almost New. See Temporary Restraining Order and Order Setting Hearing for Temporary Orders, attached as Exhibit 3 to Notice of Removal; Agreed Motion to Extend Temporary Restraining Order, attached as Exhibit 5 to Notice of Removal. Ferrell subsequently answered in state court with a general denial and a counterclaim against Weddle for conversion, breach of contract, and intentional infliction of emotional distress. See Defendant's Original Answer and Counterclaim ¶¶ 1-3, attached as Exhibit 6 to Notice of Removal. Pierce and the City then timely removed Weddle's action on March 2, 1999 to this court. See generally Notice of Removal. Ferrell consented to this removal. See Joinder in Removal. Weddle's complaint now includes causes of action against Pierce under 42 U.S.C. § 1983 for violation of her Fourth Amendment rights. Complaint ¶¶ 17, 18. Pierce and the City have moved to dismiss Weddle's claims against them, Pierce on the ground that he is protected by the doctrine of qualified immunity, and the City on the ground that no municipal policy or custom is alleged or shown. See Motion to Dismiss at 2-3.
II. ANALYSIS A. Standard for Dismissal under Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." However, a motion under Rule 12(b)(6) should be granted only if it appears beyond doubt that the plaintiff could prove no set of facts in support of her claim that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir. 1994); see also Kaiser Aluminum Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (citing WRIGHT MILLER, FEDERAL PRACTICE AND PROCEDURE: Civil § 1357 at 598 (1969), for the proposition that "the motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted"), cert. denied, 459 U.S. 1105 (1983).
In determining whether dismissal should be granted, the court must accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff. Capital Parks, Inc. v. Southeastern Advertising and Sales System, Inc., 30 F.3d 627, 629 (5th Cir. 1994); Norman v. Apache Corporation, 19 F.3d 1017, 1021 (5th Cir. 1994); Chrissy F. by Medley v. Mississippi Department of Public Welfare, 925 F.2d 844, 846 (5th Cir. 1991).
B. Qualified Immunity
"Public officials acting within the scope of their official duties are shielded from civil liability by the qualified immunity doctrine." Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir. 1999). Government officials are entitled to qualified immunity "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
In this circuit, a plaintiff must satisfy a three-part test to establish that a defendant is not entitled to qualified immunity. Kipps, 197 F.3d at 768; also Morris v. Dearborne, 181 F.3d 657, 665 (5th Cir. 1999). First, "[a] court evaluating a claim of qualified immunity `must . . . determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all.'" Wilson v. Layne, 526 U.S. 603, ___, 119 S.Ct. 1692, 1697 (1999) (quoting Conn v. Gabbert, 526 U.S. 286, ___, 119 S.Ct. 1292, 1295 (1999)); see also Morris, 181 F.3d at 665. Second, the court must "determine whether that right was clearly established at the time of the alleged violation." Wilson, 526 U.S. at ___, 119 S.Ct. at 1697. Finally, the court "must determine whether the record shows that the violation occurred, or at least 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." Morris, 181 F.3d at 666 (quoting Kerr v. Lyford, 171 F.3d 330, 339 (5th Cir. 1999)). Even if the court determines that the official's conduct was unconstitutional, it still must decide whether that conduct was "objectively reasonable." Kipps, 197 F.3d at 768.
Some panels of the Fifth Circuit have condensed the qualified immunity analysis into two steps, but the relevant points of inquiry in each analysis are the same. See, e.g., Jones v. City of Jackson, ___ F.3d ___; 2000 WL 156093, at *3 (5th Cir. Feb. 14, 2000) ("The first inquiry in examining a defense of qualified immunity asserted in a motion for summary judgment is whether the plaintiff has alleged `the violation of a clearly established constitutional right.'") (quoting Siegert v. Gilley, 500 U.S. 226, 231 (1991)).
C. Pierce (i) Clearly Established Constitutional Right
When the test for qualified immunity is applied to the pleadings here, it is clear that Weddle's complaint has alleged the deprivation of a "clearly established" constitutional right, viz., her Fourth Amendment right to be free from an unreasonable seizure. Weddle has alleged that Pierce's actions during the incident with Ferrell, in which he demanded that she give him her driver's license so that he could record the information on it and then give that information to Ferrell, resulted in Weddle's being detained in her own store in such a manner that she was not free to leave, wait on customers, or perform other tasks necessary to operate her business. Complaint ¶ 18.
It is true that "[n]ot every encounter between police officers and citizens amounts to a seizure requiring constitutional justification." Lewis v. State, 915 S.W.2d 51, 53 (Tex.App.-Dallas 1995, no pet.); Smith v. State, 944 S.W.2d 453, 457 (Tex.App.-Houston [14th Dist.] 1997, p.d.r. ref'd) (same) (citing Terry v. Ohio, 392 U.S. 1, 19 n. 16, (1968)). See also United States v. Cooper, 43 F.3d 140, 145-46 (5th Cir. 1995) (describing three types of police-citizen encounters), and note 2 below. Police officers are as free as anyone else to ask questions of their fellow citizens. Lewis, 915 S.W.2d at 53; see also United States v. Morin, 665 F.2d 765, 768 (5th Cir. 1982). "As long as the person is free to walk away, no Fourth Amendment detention occurs if a police officer merely approaches a person in a public place and asks questions." Lewis, 915 S.W.2d at 53 (citing Florida v. Royer, 460 U.S. 491, 497 (1983)). Only when the questioning becomes a detention, however brief, must it be supported by reasonable suspicion. Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App.), cert. denied, 479 U.S. 885 (1986), overruled on other grounds by Juarez v. State, 758 S.W.2d 772 (Tex.Crim.App. 1988); see also United States v. Hanson, 801 F.2d 757, 761 (5th Cir. 1986).
So, "[i]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." Florida v. Bostick, 501 U.S. 429, 439-40 (1991). If the encounter is a seizure, then, to justify such a detention, the officer must have specific articulable facts, which in light of the officer's experience and personal knowledge, together with rational inferences from those facts, would reasonably warrant the intrusion. Lewis, 915 S.W.2d at 53. The officer must have a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to a crime. Id.
In determining whether or not a detention has occurred within the meaning of the Fourth Amendment, courts have recognized three distinct types of police-citizen interactions: (1) a full scale arrest which must be supported by probable cause, see Brown v. Illinois, 422 U.S. 590 (1975); (2) a brief investigatory detention which must be supported by reasonable suspicion, see Terry v. Ohio, 392 U.S. 1 (1968); and (3) brief police-citizen encounters which require no objective justification, see Bostick, 501 U.S. at 434. See also United States v. Berry, 670 F.2d 583, 589-91 (5th Cir. 1982) (en banc) (discussing the three types of police-citizen interactions). The Supreme Court has explained this rule as follows:
[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.Florida v. Royer, 460 U.S. 491, 497-98 (1983) (citations omitted).
Here, Weddle has alleged facts sufficient to charge that Pierce conducted what amounted to at least a brief investigatory detention of her without any reasonable suspicion that she had committed a crime. Weddle alleges that Pierce threatened her with jail if she did not produce her driver's license for his inspection. Complaint ¶ 7. One could easily conclude from these allegations that Weddle was not free to leave her own premises, without subjecting herself to arrest and detention, unless she first complied with Pierce's order to produce her drivers' license. Nor is there any indication that Pierce suspected Weddle of committing a crime. Instead, the facts alleged are open to the interpretation that Pierce commanded Weddle to produce her identification so that he might assist the friend of a friend in reclaiming some items of property to which she may, or may not, at that time and place, have had a right.
Moreover, the Supreme Court has previously dealt with a case in which Texas police officers demanded that an individual identify himself even though they had no reasonable suspicion that he had committed a crime. In Brown v. Texas, 443 U.S. 47, 52 (1979), the Court ruled that Texas Penal Code Ann. § 38.02(a), as enacted by the Texas legislature in 1974, was unconstitutional because it allowed an officer to stop and demand identification of an individual without any specific basis or belief that he was involved in criminal activity. The Court reasoned that
In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference. The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits.Id. at 52; also McInnis v. State, 657 S.W.2d 113, 114 (Tex.Crim.App. 1983) (discussing Brown).
In United States v. Mendenhall, 446 U.S. 544, 553 (1980), decided the year after Brown, the Supreme Court reiterated its view that a person is "seized" only when, by means of physical force or a show of authority, his freedom of movement is restrained. Because Weddle alleges that she submitted to Pierce's show of authority by surrendering her driver's license after his threats of arrest overcame her resistance, her complaint has satisfactorily alleged a "seizure" within the meaning of the term.
After the Court's ruling, Section 38.02 was amended, effective September 1987, to read as follows:
(a) A person commits [the] offense [of failure to identify] if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.
(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
(1) lawfully arrested the person;
(2) lawfully detained the person; or
(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.
* * *
TEX. PENAL CODE ANN. § 38.02 (Vernon 1994).
"The statute requires an arrestee to provide his name, address or date of birth to a peace officer who has requested the information." Presley v. City of Benbrook, 4 F.3d 405, 408 (5th Cir. 1993). Weddle was not under arrest here; she was simply threatened with arrest if she did not produce her identification for Pierce. When this court takes the allegations of Weddle's complaint as true, as it must at this stage, it concludes that she has alleged a sufficient violation of her "clearly established" constitutional rights to survive Pierce's motion to dismiss.
(ii) Objective Reasonableness
Even if Pierce did violate Weddle's clearly established constitutional rights, he is still entitled to qualified immunity if his actions were objectively reasonable. Kipps, 197 F.3d at 769. Objective reasonableness is a matter of law for the courts to decide, not a matter for the jury. Williams, 180 F.3d at 703. "The touchstone of this inquiry is whether a reasonable person would have believed that his conduct conformed to the constitutional standard in light of the information available to him and the clearly established law." Goodson v. City of Corpus Christi, No. 98-41084, ___ F.3d ___, 2000 WL 64274, at *4 (5th Cir. Jan. 26, 2000). Whether Pierce's conduct was objectively reasonable depends on the circumstances controlling Pierce and the clearly established law in effect at the time of Pierce's actions. Shipp v. McMahon, 199 F.3d 256, 262 (5th Cir. 2000). On the record before it, this court cannot say, if Weddle's allegations are accepted as true, that Pierce's actions were "objectively reasonable." Therefore, Pierce's motion to dismiss Weddle's claim against him on the grounds that he is entitled to qualified immunity is denied.
Weddle has also asserted a claim against Pierce for Official Oppression. Complaint ¶ 12. To support a conviction for official oppression, the State must prove that the accused, while acting under color of his office or employment, intentionally subjected another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful. See TEX. PENAL CODE ANN. § 39.03(a)(1) (Vernon 1994); also Karadimos v. State, 05-95-01625-CR, 1998 WL 737953, at *2 (Tex.App.-Dallas 1998, no petition) (discussing § 39.03). This is a criminal charge, and the court expresses no opinion on whether it can support a claim for relief in a civil case.
B. Weddle's Claims Against the City
Weddle also makes allegations against the City for its policies allowing Pierce to conduct a "civil escort" of persons involved in non-criminal matters, as well its failure to provide Pierce with adequate training and supervision. Complaint ¶¶ 19-21. "[U]nlike various government officials, municipalities do not enjoy immunity from suit — either absolute or qualified — under § 1983." Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993); also Burge v. Parish of St. Tammany, 187 F.3d 452, 466-67 (5th Cir. 1999) (same). Thus, "a claim of municipal liability under section 1983 is sufficient to withstand a motion to dismiss even if the claim is based on nothing more than a bare allegation that the individual [officer's] conduct conformed to official policy, custom, or practice." Leatherman, 507 U.S. at 165 (quoting Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 624 (9th Cir. 1988)).In deciding the City's motion, the court does not consider the merits of Weddle's municipal liability claim, but rather assumes the truth of her allegations that "Pierce's actions were initially taken in compliance with the actual policies, procedures, practices, and customs of [the City]," and that "[the City] breached its duty to provide [Pierce] with adequate supervision and training." Complaint ¶¶ 19, 20. Although the City argues that Weddle has not pled any cause of action against it, see Motion to Dismiss at 2, it has not carried its burden of showing that Weddle could prove no set of facts in support of her claim that would entitle her to relief. See Conley, 355 U.S. at 45-46.
III. CONCLUSION
For the above reasons, the defendants' motions to dismiss are DENIED.
SO ORDERED.
March 6, 2000.