United States District Court, W.D. Louisiana, Shreveport Division
GREGORY V. TUCKER
CITY OF SHREVEPORT, ET AL.
ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE.
excessive-force case arises from an encounter between
Plaintiff, Gregory Tucker ("Tucker"), and four
officers ("Defendant Officers") of the Shreveport
Police Department. Because he was pulled to the ground and
beaten while being arrested, Tucker brings an action under 42
U.S.C. § 1983 and under Louisiana constitutional and
tort law. [Record Document 1 at 6-8]. The City of Shreveport
(the "City"), Chandler Cisco ("Cisco"),
William Mclntire ("Mclntire"), Yondarius Johnson
("Johnson"), and Tyler Kolb ("Kolb")
(collectively, "Defendants") have filed a motion
for summary judgment. [Record Document 29]. For the reasons
given below, the motion is GRANTED IN PART
and DENIED IN PART. Summary judgment is
GRANTED in favor of Defendant Officers in
their official capacities on all claims. Summary judgment is
DENIED as to all claims against the City and
the § 1983, Louisiana constitutional, and state-law tort
claims against Defendant Officers in their individual
December 1, 2016, Cisco spotted Tucker driving on 70th Street
in Shreveport, Louisiana without working brake and license
plate lights. [Record Documents 29-3 at 133 and 32-4 at 2].
Cisco activated his lights and siren. [Record Document 29-3
at 133]. Rather than immediately stop on the side of the road
or in the parking lot of one of the businesses along the
street, Tucker continued driving for approximately two
minutes. [Record Document 29-3 at 3 (Cisco Video at
23:33:42-:35:40)]. He led Cisco into a neighborhood off of
70th Street and finally came to a stop in the driveway of a
home. [Id. at 23:35:40)]. Cisco admits that Tucker
never sped after Cisco activated his lights and siren.
[Record Document 32-4 at 3-4].
asked Tucker to exit his vehicle. [Record Documents 29-2 at 2
and 32 at 5]. Tucker did so, and Cisco conducted a brief
pat-down beside Tucker's car. [Record Documents 29-2 at 2
and 32 at 5]. Cisco then instructed Tucker to come over to
Cisco's police cruiser and to place his hands on the
hood. [Record Document 29-2 at 2]. Tucker leaned onto the
hood, resting primarily on his elbows. [Record Document 29-3
at 3 (Cisco Video at 23:36:23-:55), 31]. Cisco then conducted
a more complete pat-down and located a pocketknife, which he
removed from Tucker's pocket. [Record Document 29-2 at
2]. Throughout this portion of the encounter, Tucker remained
in front of Cisco's police cruiser and made no signs
indicating that he was likely to flee. Although he was
gesturing, his hands remained in the space above the hood of
Cisco's cruiser. [Record Document 29-3 at 3 (Cisco Video
at 23:36:23-:55)]. As Cisco's dashboard camera shows,
however, Tucker was clearly upset and repeatedly asked why he
had been targeted for police attention. [Id].
the second search was going on, Mclntire and Johnson arrived
on the scene. [Record Documents 29-2 at 2 and 32 at 5]. Cisco
told Tucker to place his hands behind his back. [Record
Document 29-3 at 35, 137]. Mclntire approached the pair, but
did not inform Tucker that he was under arrest. [Record
Document 29-3 at 67-68]. As discussed more fully below,
precisely what happened next is disputed, but Cisco was on
Tucker's right side while Mclntire approached
Tucker's left. [Record Document 29-3 at 3 (Cisco Video at
23:26:55)]. Four seconds after Mclntire arrived at
Tucker's side, [id. at 23:36:55-:59], Cisco and
Mclntire forced Tucker onto the ground where he hit his head.
[Record Document 29-3 at 39-40, 144].
Tucker hit the ground, Kolb arrived on the scene. [Record
Document 29-3 at 3 (Kolb Video at 23:37:00-:04)]. A struggle
ensued with the officers repeatedly punching and striking
Tucker, ostensibly in order to gain control of his hands and
complete the arrest. [Id. at 3 (Cisco Video at
23:37:00-:57) (Mclntire Video at 23:37:00-:57) (Kolb Video at
23:37:04-:10)]. As he lay on the ground, the officers
repeatedly yelled at him to put his hands behind his back.
[Id. at 3 (Mclntire Video at 23:37:12-:28) (Kolb
video 23:37:09-:30)]. Eventually, they successfully placed
him in handcuffs and stood him up. [Record Document 29-3 at 3
(Cisco Video at 23:38:18-:22)]. Tucker was ultimately booked
for failure to have working brake and license plate lights,
flight from an officer, and public intimidation.
[Id. at 5].
Tucker had been very vocal throughout the encounter, loudly
and argumentatively objecting to his treatment, the tone of
his voice notably changes after he began to be struck; it
becomes the plaintive sound of a man in pain. [Id.
at 3 (Kolb Video at 23:37:30-:55)]. After he stood up, he had
what Johnson agreed was "a lot of blood" on his
face, [id. at 109], and was transported to the
hospital for medical examination, [Record Document 29-2 at
3]. Although he was only medically diagnosed with a cut on
his forehead and a muscle strain in his left shoulder,
[id.], Tucker claims additional injuries, including
headaches, a swollen face, and a "sprung" knee as
well as fear of being killed by the police, [Record Document
32-3 at 69-70, 81-82].
Summary Judgment Standard
Rule of Civil Procedure 56(a) directs a court to "grant
summary judgment 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." Summary judgment is
appropriate when the pleadings, answers to interrogatories,
admissions, depositions, and affidavits on file indicate that
there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
When the burden at trial will rest on the non-moving party,
the moving party need not produce evidence to negate the
elements of the non-moving party's case; rather, it need
only point out the absence of supporting evidence. See
Id. at 322-23.
movant satisfies its initial burden of showing that there is
no genuine dispute of material fact, the nonmovant must
demonstrate that there is, in fact, a genuine issue for trial
by going "beyond the pleadings" and
"designating] specific facts" for support.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Or. 1994) (citing Celotex, 477 U.S. at 325).
"This burden is not satisfied with some metaphysical
doubt as to the material facts," by conclusory or
unsubstantiated allegations, or by a mere "scintilla of
evidence." Id. (internal quotation marks and
citations omitted). However, "[t]he evidence of the
non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1985) (citing
Adickes v. S. H. Kress & Co., 398 U.S. 144,
158-59 (1970)). While not weighing the evidence or evaluating
the credibility of witnesses, courts should grant summary
judgment where the critical evidence in support of the
nonmovant is so "weak or tenuous" that it could not
support a judgment in the nonmovant's favor.
Armstrong v. City of Dall., 997 F.2d 62, 67 (5th
Local Rule 56.1 requires the movant to file a statement of
material facts as to which it "contends there is no
genuine issue to be tried." The opposing party must then
set forth a "short and concise statement of the material
facts as to which there exists a genuine issue to be
tried." W.D. La. R. 56.2. All material facts set forth
in the movant's statement "will be deemed admitted,
for purposes of the motion, unless controverted as required
by this rule." Id.
Nature of the Area
Mclntire insists that Tucker stopped in a high-crime area
noted for drug activity, [Record Document 29-3 at 60], Tucker
has testified that the house where he stopped was "not
in the drug area. It's like a little bit out of the drug
area," [Record Document 32-3 at 49]. Therefore, the
Court infers that the location where Tucker chose to stop was
not within an area known for drug activity.
Cisco's Pat Down
Tucker leaned over the police cruiser, Cisco patted him down
and discovered the pocketknife. [Record Document 29-2 at 2].
Mclntire saw the patdown, but testified that he did not know
whether it had been completed. [Record Document 29-3 at 63,
72]. Cisco then stopped patting Tucker down and asked him to
place his hands behind his back. [Record Documents 29-3 at 3
(Mclntire Video at 23:36:58) and 32-3 at 54]. Based on the
fact that Cisco stopped his pat down and Mclntire saw him do
so, a jury could find that a reasonable officer in Cisco,
Johnson, and Mclntire's position would not have believed
that Tucker had any further weapons on his person. Thus, the
Court infers for summary judgment purposes that a reasonable
officer in their position would have believed that Tucker was
unarmed after Cisco removed the pocketknife.
Cisco and Mclntire's Verbal Commands
told Tucker to place his hands behind his back, but cannot
recall if he told Tucker he was under arrest. [Record
Document 29-3 at 35-36]. Mclntire also cannot recall if he
gave any verbal orders to Tucker before grabbing him.
[Id. at 66-67]. Therefore, the Court concludes for
present purposes that the only verbal order given to Tucker
before he was taken to the ground was Cisco's instruction
to place his hands behind his back. [Record Document 32-3 at
Tucker's Actions Prior to the Takedown
are competing versions of what happened in the moments before
Tucker was taken to the ground. Cisco testified that Tucker
began to comply with the order to place his hands behind his
back, that Tucker tensed his right arm and pulled his left
arm away once Mclntire touched it, and that either Cisco
pushed Tucker to the ground or Mclntire pulled him to the
ground. [Record Document 29-3 at 34-36, 39]. Mclntire asserts
that when he grabbed Tucker's left wrist and started to
pull Tucker's arm towards the back, Tucker tensed and
started to pull his left arm forward. [Id. at
70-71]. According to Mclntire, he grabbed Tucker by the neck
to pull him down, but Tucker got free of Cisco and swung
around, causing Mclntire to think he was going to be hit.
[Id. at 71-72]. He then pulled Tucker to the ground.
[Id. at 72]. Tucker asserts that he was putting his
hands behind his back in compliance with Cisco's order
when he glanced back and saw Mclntire who immediately pulled
Tucker down to the ground. [Id. at 137-38, 140].
Tucker claims that he did not pull away from Cisco and
Mclntire prior to being taken to the ground, and Johnson
confirms that he did not see Tucker pull away. [Id.
at 104, 137, 140].
there is video footage of these seconds before the takedown,
the footage is not unequivocal. Cisco's dashboard camera
shows Mclntire grabbing Tucker's left arm to pull it back
while Cisco grabs Tucker's right arm. [Record Document
29-3 at 3 (Cisco Video at 23:36:53-:37:00)]. Tucker's
left arm moves down slighdy, which could indicate that he had
tensed his arm to pull it from Mclntire's grasp (as
Mclntire asserts) or that Mclntire was pulling the arm down
and back; the camera angle makes it difficult to determine
who was responsible for the arm's apparent movement.
[Id.]. Mclntire's dashboard camera (shooting the
scene from the opposite direction) does not show Tucker
pulling away from the officers' grasp. [Id. at 3
(Mclntire Video at 23:36:53-:37:00)]. Neither video
corroborates Mclntire's claim that Tucker got free of
Cisco or swung around as if hit Mclntire. Because the Court
must resolve disputed questions of fact in Tucker's
favor, the Court infers that prior to being taken to the
ground, Tucker complied with Cisco's order to place his
hands behind his back and did not jerk his arm away from
Cisco and Mclntire.
Tucker's Behavior on the Ground
is some dispute over whether Tucker was kicking at the
officers as they attempted to place him in handcuffs. Tucker
was kicking his feet, [id. at 49, 78], and the
videos show his legs flailing, [id. at 3 (Cisco
Video at 23:37:10-:15, 23:37:20-:27) (Mclntire Video at
23:37:02, 23:37:12, 23:37:22) (Kolb Video at 23:37:05-:07)].
However, in the videos, the movement appears almost
involuntary; Tucker is not aiming his legs in any particular
direction. Therefore, although Tucker's legs were moving
during some portions of the struggle on the ground, the Court
infers that he was not deliberately attempting to kick any of
the officers. Moreover, because he was lying face down with
four officers surrounding him, the Court also infers that the
movement of his legs was not designed to enable him to flee.
Tucker asserts as a disputed material fact that he was not
resisting arrest, [Record Document 32-1 at 3], he does not
dispute that he did not immediately place his hands behind
his back after falling to the ground, [Record Document 29-2
at 2-3]. The two pieces of deposition testimony to which
Tucker points are not to the contrary. The first refers to
his claim that he did not pull away before being
taken down to the ground. [Record Document 32-3 at 57]. In
the second, he stated, "I never punched, I never pushed,
I never did anything physically to an ofticer ever ...."
[Id. at 21]. Defendant Officers have not claimed
that Tucker punched or pushed them; they assert that he
continued to resist being handcuffed by kicking his legs,
squirming around, and refusing to place his hands behind his
back. [Record Document 29-2 at 2-3]. Tucker has not disputed
this behavior, and so the Court must take as uncontroverted
that he was neither lying still nor complying with Defendant
Officers' orders to place his hands behind his back.
Force Used on Tucker on the Ground
three videos of the arrest show Defendant Officers repeatedly
punching Tucker as he lay on the ground. Each struck him at
least once. Cisco admits to "multiple hard closed hand
strikes" to Tucker's shoulder and rib cage and
"a few additional hard closed hand strikes," at
least two of which were to Tucker's face; a video of the
incident shows at least three strikes. [Record Document
29-3 at 3 (Cisco Video at 23:37:08-:ll), 7, 42, 46]. Mclntire
admits to two palm strikes on Tucker's face, a knee
strike, at least one punch to the face, and possibly punches
to Tucker's back and shoulder blades; his video shows at
least two blows. [Id. at 3 (Mclntire Video at
23:37:01-:04), 72, 81-82]. Although Johnson stated that he
could not recall punching or kicking Tucker, [id. at
108], Kolb's video clearly shows Johnson striking Tucker
at least once, [id. at 3 (Kolb Video at
23:37:08-:09)]. Kolb also denies memory of punching or
knee-striking Tucker, but ...