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Tucker v. City of Shreveport

United States District Court, W.D. Louisiana, Shreveport Division

February 27, 2019

GREGORY V. TUCKER
v.
CITY OF SHREVEPORT, ET AL.

          HAYES MAGISTRATE JUDGE.

          MEMORANDUM RULING

          ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE.

         This 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 capacities.

         I. Background

         On 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].

         Cisco 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].

         While 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].

         As 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].

         Although 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].

         II. Summary Judgment Standard

         Federal 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."[1] 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.

         If the 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 Cir. 1993).

         Additionally, 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.

         III. Disputed Facts

         A. Nature of the Area

         Although 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.

         B. Cisco's Pat Down

         While 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.

         C. Cisco and Mclntire's Verbal Commands

         Cisco 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 54].

         D. Tucker's Actions Prior to the Takedown

         There 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].

         Although 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.

         E. Tucker's Behavior on the Ground

         There 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.

         Although 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.

         F. Force Used on Tucker on the Ground

         The 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.[2] [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 ...


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