Jones v. Jordan et al

REPLY to Response to Motion re Corrected MOTION for Summary Judgment and Response in Opposition to Motion for Summary Judgment.

D. Md.February 13, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (Northern Division) ERIC JONES, * Plaintiff, * v. * Civil Action No. GLR-16-2662 OFFICER JOSHUA JORDAN, * et al., * Defendants. * * * * * * * * * * * * * * PLAINTIFF ERIC JONES’ REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff, Eric Jones (hereinafter “Plaintiff”), pursuant to Fed. R. Civ. P. 56 and L. R. 105(2), by his attorneys Emanuel M. Levin and Sharon L. Rhodes, requested partial judgment on the legality of the initial stop and seizure of Plaintiff by Officers Joshua Jordan and Russell Tonks (hereinafter “Defendants” or “Jordan” and/or “Tonks”). To be specific, Plaintiff contended that Defendants lacked reasonable articulable suspicion and/or probable cause to stop and/or seize Plaintiff the moment they encountered him. In their response in opposition, Defendants raise five issues1 which Plaintiff will address in sequence. I. THERE IS NO AMBIGUITY AS TO WHICH COUNTS PLAINTIFF’S CROSS- MOTION FOR PARTIAL SUMMARY JUDGMENT WOULD APPLY Defendants initially argue that Plaintiff’s Motion for Partial Summary Judgment is defective 1 Although Defendants raise a sixth concern of qualified immunity, it was provided without legal support; not applicable to the limited focus of Plaintiff’s Cross-Motion for Partial Summary Judgment and inappropriate to a matter involving allegations of a breach of clearly established constitutional rights. Case 1:16-cv-02662-GLR Document 112 Filed 02/13/19 Page 1 of 8 because it fails to identify which counts of his pleadings he seeks judgment on. See ECF # 111.1 at 2. They claim Plaintiff’s motion should be denied summarily. Id. Plaintiff disagrees. By seeking judgment on the legality of Plaintiff’s initial “stop” and/or seizure by Defendants, it is clear that Plaintiff seeks judgment on any count in his pleadings which involve the Fourth Amendment protections against unreasonable stops and seizures. 2 Hence, the Motion for Partial Summary Judgment clearly applies to Count One, which addresses Fourth Amendment violations committed by Defendants under 42 U.S.C. § 1983, Count Five, which addresses Article 26 of the Maryland Declaration of Rights, Count Eight, which alleged False Imprisonment, and Count Nine which alleged False Arrest. II. THE RECORD HAS SUFFICIENT FACTS CITED WHICH SUPPORT PLAINTIFF’S CROSS- MOTION FOR PARTIAL SUMMARY JUDGMENT Next, Defendants argue that Plaintiff failed to cite the record in support of his Motion for Partial Summary Judgment. Id. at 4-5. Plaintiff disagrees. Plaintiff must have misread and/or misunderstood Plaintiff’s pleadings and the intent of the Local Rule. The Response in Opposition to Defendants Motion for Summary Judgment, which was combined with Plaintiff’s Motion for Partial Summary Judgment pursuant to the Local Rules of this court, should have and were required to be read together as 2 See ECF # 104.1 (“On October 25, 2016, Plaintiff filed an Amended Complaint which alleged nine counts against the aforementioned Defendants; Count One: Violation of Fourth and Fourteenth Amendments to the United States Constitution via 42 U.S.C. §1983 against Jordan and Tonks; Count Two: Violation of Fourth and Fourteenth Amendments to the United States Constitution via 42 U.S.C. §1983 against former Police Commissioner Anthony W. Batts, BPD, and Unknown Supervisors; Count III: Violation of Fourth and Fourteenth Amendments to the United States Constitution via 42 U.S.C. §1983 against Unknown Supervisors -Supervisor Liability; Count Four: Violation of Fourth and Fourteenth Amendments to the United States Constitution via 42 U.S.C. §1983 against Other Unknown Officer or Unknown Members (John Does) or Unknown Supervisors for Supervisors Bystander Liability; Count Five: Violation of the Maryland Declaration of Rights Articles 24 and 26 of the Maryland Constitution; Count Six: Malicious Prosecution against Jordan and Tonks; Count Seven: Assault and Battery against Jordan and Tonks; Count Eight: False Imprisonment against Jordan and Tonks; and Count Nine: False Arrest against Jordan and Tonks. 2 Case 1:16-cv-02662-GLR Document 112 Filed 02/13/19 Page 2 of 8 a whole. 3 Facts cited in Plaintiff’s Response in Opposition to Defendants Motion for Summary Judgment were equally applicable to Plaintiff’s Motion for Partial Summary Judgment, hence the combination of the two pleadings. Nevertheless, Plaintiff contends that the factual record supports his Motion for Partial Summary Judgment. To be certain, Plaintiff cited to the two 911 calls that came into dispatch prior to Defendants encounter with Plaintiff. See ECF # 104-1 at 3-4. Plaintiff further noted that the first 911 call, which complained of a drug dealer and suspected drug buyers, was an anonymous complaint. Id. The text of the second 911 call addressed the description of the suspected drug dealer only. Id. From the text of both 911 calls, it was clear that a description of the suspected drug dealer was conveyed to the 911 dispatcher. Id. No description was given of the suspected drug buyers. Id. Plaintiff cited to the record where Defendants acknowledged that they did not hear the specifics of the 911 calls.4 Id. at 4, n. 1. 3 At the end of the Material Facts section, it states “Additional Facts will be provided in the Argument Section as Needed.” 4 Q. There's no way you could investigate – A. I don't believe I'm allowed to access those files and hear people's 911 calls. Q. As a police officer you're saying you're not entitled to hear the 911 calls and get information? A. I wouldn't know how to get that information is what I'm saying. There's a lot of good information there. (Jordan Depo P. 184 L. 12-20). See also ECF # 104-11 and 104-12, Exhibits I and J: Officer: “34" Dispatch “34" Officer: “Can you give me 33's 20, please?” Officer: “I’m sorry, I’m cleaning up right now.” Officer: “What Buddy?” Dispatcher: “ He says he is clearing up right now.” Defendant “ 10-4, I’m on 2-3.” Dispatcher: “ And uh, 33 when you come clear, I’ve got a narcotics outside for you to copy, please.” Defendant “10-4, I’m clear go on" Dispatcher: “Narcotics outside of 3317 Patton Avenue. That would be 3317 Patton Avenue. Reference of narcotics outside. No complainant. Reports of people selling drugs at the location. Man wearing all black with a black hat at that location. Nothing further.” 3 Case 1:16-cv-02662-GLR Document 112 Filed 02/13/19 Page 3 of 8 Plaintiff further cited that upon Defendants arrival to the scene of the 911 calls, Defendants initially gave chase to the suspected drug dealer; an individual other than the Plaintiff. Id. at 4, 11; see also ECF # 104-11 and 104-12, Exhibits I and J (Officer Tonks: “34, What is the 20 for Patton?” Dispatch: “3317 Patton, 3317, one male wearing all black with black hat selling drugs. Nothing further” Officer Tonks “10-4, I’m on the block. There are probably about 30- 40 people on this block on Denmore.” Officer “Curbie, he is running right now.” Officer “He is back here on Denmore, I can[‘t] see s--t from back here.” “Which way did he run man?” ) After losing the suspected drug dealer, Plaintiff cited to the record where Defendants observed Plaintiff walking in the area and was ordered, along with his friend, to stop. Id. at 5. Plaintiff further cited to the record that prior to their encounter with Plaintiff, Defendants had not observed Plaintiff, or anyone else for that matter, do anything illegal. Id. at 9-10. Plaintiff cited to the record that despite having made no observations of illegal behavior, Defendants ordered Plaintiff to get on the ground immediately upon encounter. Id. Plaintiff cited to the record where Defendants acknowledged that they had no right to arrest Plaintiff when they initially encountered him. Id. at 11. Plaintiff further cited to the record where Defendants acknowledged that Plaintiff was not free to leave upon their initial contact with Plaintiff. See ECF # 104-7 at 51 (A. I would say he's not free to leave at that time, no. Q. So he's detained? A. Yes.”) Accordingly, the record is sufficient, along with Plaintiff’s citation to it, – and with Defendant’s concession on page seven of their Response in Opposition to Plaintiff’s Motion for Partial Summary Judgment - to support judgment in favor of Plaintiff. As Plaintiff will argue below, Defendant “10-4" 4 Case 1:16-cv-02662-GLR Document 112 Filed 02/13/19 Page 4 of 8 Defendants had no legal basis under the Fourth Amendment to initially “stop” and/or seize Plaintiff. III. ALTHOUGH THE FACTS OF THIS CASE ARE LARGELY DISPUTED, IT IS NOT AN “ODDITY” THAT PLAINTIFF WOULD SEEK JUDGMENT AS TO THE LEGALITY OF THE FIRST STOP BECAUSE DEFENDANTS’ UNCONTESTED FACTS ESTABLISH NO LEGAL AUTHORITY TO STOP PLAINTIFF Finally, Defendants third, fourth and fifth issues raised in their Response in Opposition to Plaintiff’s Motion for Partial Summary Judgment will be addressed simultaneously. Although the facts of this case are largely disputed, the disputes are immaterial when it comes to the legality of the initial stop of Plaintiff. The narrow issue in Plaintiff’s Motion for Partial Summary Judgment is whether Defendants had reasonable articulable suspicion and/or probable cause to “stop” and/or seize and/or detain Plaintiff when they first encountered him on August 17, 2014. Fourth Amendment jurisprudence makes clear that “[a] police officer must have more than a mere hunch to justify a stop….” U.S. v. Pollins, 145 F. Supp. 3d 525, 533 (D. Md. 2015). It is beyond debate that “[a] stop is justified at its inception when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.” Artiga Carrero v. Farrelly, 270 F. Supp. 3d 851, 867-68 (D. Md. 2017) (citing U.S. v. Place, 462 U.S. 696, 702 (1983)). Fourth Amendment jurisprudence is clear that “[w]hen reasonable suspicion is based on an anonymous tip, the tip must be accompanied by some corroborative elements that establish [its] reliability.” Pollins, 145 F. Supp. 3d at 533 (citing U.S. v. Perkins, 363 F.3d 317, 323 (4th Cir. 2004)). Stops, when justified and supported by reasonable articulable suspicion are seizures “limited both in scope and duration.” Id (citing U.S. v. Digiovanni, 650 F. 3d 498, 507 (4th Cir. 2011)). “[T]he investigative methods employed should be the least intrusive means reasonably available to verify or 5 Case 1:16-cv-02662-GLR Document 112 Filed 02/13/19 Page 5 of 8 dispel the officer’s suspicion in a short period of time.” Id. Here, even if Defendants recitation of facts prior to their encounter with Plaintiff went uncontested, they still lacked sufficient authority to “stop” Plaintiff. Absolutely nothing in Fourth Amendment jurisprudence supports “stopping” an individual to simply gather information about other people committing crimes. See also ECF # 104-7 at 135 (Officer Jordan admits that reasonable suspicion that Plaintiff was involved in criminal activity would be the only way Defendants could legally stop Plaintiff.) Significantly, Defendants state that they “stopped Plaintiff for the purpose of figuring out if [he, or his friend] could provide useful information regarding the reported drug activities in the area.” See ECF # 111-1 at 7. Hence, Defendants clearly confuse a police officer’s ability to “approach” anyone and engage in consensual conversation versus the ability to “stop” and/or seize and/or detain an individual which must be supported by reasonable articulable suspicion and/or probable cause. To be clear, Defendants lacked any legal authority to “stop” Plaintiff. The record is clear that Plaintiff was not the suspected drug dealer for whom the 911 callers conveyed a description to dispatch. The record is further clear that Defendants did not observe Plaintiff engage in any illegal behavior. Unfortunately, the record is clear that Defendants believe that a person walking hurriedly in a high crime area is sufficient in and of itself to “stop” an individual. Defendants assertion that “Plaintiff does not contest the validity of the second stop” or that it is somehow an “oddity” Plaintiff would seek summary judgment on the legality of the first stop or that “[n]o one disputes [Defendants] observations” prior to their encounter with Plaintiff is simply disingenuous. Plaintiff clearly disputed that he was part of a large group, see ECF #104-6 Exhibit C at 6 Case 1:16-cv-02662-GLR Document 112 Filed 02/13/19 Page 6 of 8 Transcript p. 225 L.1-3, clearly disputed that he ran from police after discontinuing Defendants illegal encounter with him, and clearly disputed that he discarded drugs while running and/or walking away from Defendants. See ECF # 111-1 at 7 and ECF #104-5 Exhibit B at ¶¶’s 11,12,13,14,15, and 21,. Defendants attempt to bootstrap their arguments, both in their affirmative Motion for Summary Judgment and in their Response in Opposition to Plaintiff’s Motion for Partial Summary Judgment, with evidence that Defendants were simply unaware of prior or during their encounter with Plaintiff.5 Plaintiff respectfully requests that this Honorable Court grant his Motion for Partial Summary Judgment and deny Defendants Motion for Summary Judgment. February 13, 2019 Respectfully submitted. /s/ Emanuel M. Levin Federal Bar ID No.: 00919 emlevinlaw@aol.com /s/ Sharon L. Rhodes Federal Bar ID No.: 03929 srhodeslevinlaw@aol.com 110 West Rd., Suite 231, Building A Towson, MD 21204 410-727-4973 (Office) 410-727-1224 ( Facsimile) Attorneys for Plaintiff 5 Defendants assert that the 911 calls were not anonymous. However, the fact that they were indeed anonymous was already conceded by Defendants during discovery. Officer Jordan defined the calls as anonymous after hearing the full recording “A. I've never seen this before. I don't have access to people anonymously calling and making complaints. (Jordan Depo. P. 184 L.9-11) 7 Case 1:16-cv-02662-GLR Document 112 Filed 02/13/19 Page 7 of 8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 13th day of February, 2019, a copy of PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT was sent electronically via the Courts filing system along with a Hard copy of the filing and all attachments to the presiding Judge if the document exceeds 15 pages: All other Parties through their counsel, Neil E. Duke, Esquire Baker, Donelson, Bearman, Caldwell & Berkowitz 100 Light St. Baltimore, MD 21202 Email: nduke@bakerdonelson.com and Michael Comeau, Esquire Chief Solicitor Federal Bar No. 01175 Michael.Comeau@Baltimorepolice.org Kara K. Lynch, Esquire Federal Bar No. 29351 Assistant City Solicitor Email: kara.lynch@baltimorepolice.org Brent Schubert, Esquire Assistant City Solicitor Federal Bar No. 19593 Email: Brent.Schubert@baltimorepolice.org /s/ Emanuel M. Levin 8 Case 1:16-cv-02662-GLR Document 112 Filed 02/13/19 Page 8 of 8