United States District Court, W.D. Louisiana, Shreveport Division
L. HAYES, Judge
ELIZABETH E. FOOTE, UNITED STATES DISTRICT JUDGE
before the Court is a motion for summary judgment [Record
Document 44] filed by Defendants, the City of Shreveport,
Tyler Kolb ("Kolb"), Daniel Meyers
("Meyers"), R.E. Bordelon, and Alan Crump
("Crump"), which asks this Court to dismiss all
claims brought by Plaintiff, Albert Konrad
("Konrad"). Upon consideration of the briefs filed by
the parties and for the reasons stated below, Defendants'
motion for summary judgment is GRANTED IN
PART and DENIED IN PART.
night of February 20, 2016, Shreveport Police Officers Kolb
and Meyers responded to a call for assistance at 139.5
Dalzell Street in Shreveport, Louisiana. Record Documents 57,
p. 7 and 58-1, p. 1. As demonstrated by the patrol unit's
recording of the events,  outside of the residence the officers
encountered Chuck Parker ("Parker"), the
complainant. Record Document 44-3. Parker claimed that his
ex-girlfriend had stolen his cell phone and that she was
staying with the man who lived at 139.5 Dalzell Street.
Id. The officers approached the house and knocked
loudly on the front door several times. I±
Eventually, Konrad, who had been drinking during the evening,
opened the door holding a loaded gun. Record Documents 57, p.
7 and 58-1, p. 2. Kolb and Meyers drew their weapons and
ordered Konrad to drop his gun. Id. When Konrad did
not immediately comply, the officers yelled "drop
it" numerous times and screamed "get back from the
gun!" Record Document 44-3. Konrad did relinquish the
gun, and the officers entered Konrad's house to
"secure the weapon." Record Document 57, pp. 7-8.
On the recording, Konrad can be heard asking the officers why
they are there and what is going on. Record Document 44-3. In
response, the officers yelled "sit down" a number
of times and "do what I fucking tell you."
Id. When Konrad did not comply, the officers
forcefully pushed him down. Record Documents 44-3 and 57, p.
7. Konrad fell onto a recliner that had a glass shelf sitting
on it, which was broken upon his fall. Record Documents 57,
p. 7. and 58-1, p. 3.
secured Konrad's gun by removing all of the ammunition
loaded into it. Record Document 50-8, p. 46. Meyers's
statements are inconsistent regarding what he did with the
ammunition from that point. At one time, he claimed he put
the bullets on the table next to the gun, Record Document
50-8, p. 46, while another time he stated that he put the gun
and the bullets in separate places (the gun on the kitchen
table and the ammunition on the television), Record Document
50-11, p. 44.
Dixon ("Dixon"), Parker's ex-girlfriend, was
inside the house as reported. Kolb questioned Dixon about
Parker's stolen cell phone. Record Document 44-3. She
denied taking Parker's phone, and Kolb asked her to
provide her identification and proof that the phone she
possessed, in fact, belonged to her. Id. Meanwhile,
Konrad asked "who has my gun?" Id., Meyers
responded that he had Konrad's gun "over here."
Id. Meyers was standing next to the gun "to
make sure nobody could go back and get it." Record
Document 50-8, p. 47. Konrad demanded the gun be returned to
him-"put it over here ... put the fucking gun over
here." Record Document 44-3. Meyers repeatedly told
Konrad that he was not giving Konrad the gun back at that
time. Id. He explained that the officers were at
Konrad's house for a legal reason and they would return
the gun when they left. Id. Konrad demanded over and
over again that Meyers give him the gun, but Meyers
consistently refused. Id. Konrad asked for
Meyers's name and badge number, which Meyers immediately
recording demonstrates that Kolb concluded his discussion
with Dixon regarding Parker's cell phone, and he then
joined the conversation between Meyers and Konrad.
Id. Kolb asked Konrad for his name, to which Konrad
replied "kiss my ass." Id. Events
escalated at that point. Konrad explained to the officers
that the firearm held sentimental value to him and he would
hold them responsible if anything happened to it.
Id. Konrad still had not provided his name to Kolb,
leading Kolb to warn Konrad twice that he would go to jail.
Id. Meyers, meanwhile, can be heard reassuring
Konrad that they did not intend to take the gun with them
when they left. Id. Konrad then provided his name
and date of birth to Kolb. Id. At the time of the
incident, Konrad was 71 years old.
exchange became heated with the officers and Konrad talking
over each other. Id. Konrad can be heard asking Kolb
repeatedly for his name and badge number, while Kolb is
ordering Konrad to tell the officers his age. Id., The
recording establishes that Kolb told Konrad to sit down,
followed by Konrad exclaiming "don't push me!"
Id. Kolb states, "I swear, sir, you better sit
down right now." Id. While it is unclear from
the recording what movements transpired during this time, it
suggests that Konrad did not sit down because Kolb yelled
"sit down" three more times in rapid succession and
then ordered Konrad to put his hands behind his back.
Id. Konrad continued to demand that Kolb provide his
name and badge number. Id. Next, Kolb struck Konrad
in the face multiple times. Id. at 23:04:30 -
23:04:40. The sound of the physical blows and Konrad's
reaction to them can be easily discerned from the recording.
happened in between the heated verbal exchange and the use of
force is, unsurprisingly, the subject of much debate. Because
there is only audio of the encounter, the parties'
conflicting stories cannot be resolved by the recording
itself. The Defendants contend that Konrad, who had been
seated, stood up and began walking towards Kolb, Record
Document 50-8, p. 49, and Konrad had clenched his fist which
is perceived as a "fighting position," Record
Document 50-11, p. 33. When Konrad did not sit down as
ordered, the officers told him to put his hands behind his
back. Record Document 50-8, p. 50. Meyers testified that he
was securing Konrad's right hand while Kolb was putting
on one handcuff but then Konrad "turned around pretty
quickly on him, and that's when he was hit in the
face." Id. Put another way, Meyers stated that
Konrad "turned out of my grasp towards Officer
Kolb." Record Document 50-11, p. 47. When he was hit,
Konrad fell to the ground, and Kolb ordered him to put his
hands behind his back. Record Document 50-8, p. 50. Konrad
failed to obey and was hit in the face several more times.
stark contrast, Konrad contends that he was not being
physically aggressive towards the officers. Record Document
58-1, p. 4. He admits that he demanded his gun be returned to
him, but denies making any physical show of force.
Id. He admits he was walking towards the officers
rather than sitting down, Record Document 44-3, p. 89, but
also asserts he was not given a chance to sit down because
Kolb attacked him first, Record Document 58-1, p. 4. He
admits that he turned away when Kolb started to handcuff him,
Record Document 58, p. 19, but submits that he never gave
Kolb any reason to think he was going to hit Kolb. Record
Document 58-1, p. 5. Instead, Konrad asserts that his left
arm is physically disabled and is not capable of being put
behind his back. Konrad argues that Kolb "lost his
temper and punched Konrad in the face because Konrad asked
for his name and badge number." Id. Once he was
on the ground, Konrad alleges that Kolb continued to hit him
even though he was not resisting, but rather was "laying
helpless on the floor." Id.
fire department was called to the scene to treat Konrad's
injuries. Record Document 50-8, p. 55. Konrad was then
transported to University Health Hospital. Id. at p.
50. The diagnosis from University Health establishes Konrad
suffered a fractured nasal bone, a fractured ethmoid bone, a
maxillary fracture, eye contusions, multiple facial
lacerations, and bleeding from the right eye. Record Document
44-3, pp. 129 and 134.
on these events, Konrad was charged with simple assault and
resisting an officer and was brought to trial in Shreveport
City Court. The judge entered a directed verdict in
Konrad's favor without the defense ever presenting his
case. Record Document 50-11, p. 61. Konrad then filed this
suit under 42 U.S.C. § 1983 and state law alleging a
litany of claims against the individual officers, the City of
Shreveport, and Crump. Defendants assert qualified immunity
and move for summary judgment on only the following claims:
unlawful entry into Konrad's home, excessive force,
failure to intervene, and the parallel state law
Rule of Civil Procedure 56(a) directs that a court
"shall 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. See 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 Celotex, 477
U.S. at 322-323.
movant satisfies its initial burden of showing that there is
no genuine dispute of material fact with the motion for
summary judgment, the nonmovant must demonstrate that there
is, in fact, a genuine issue for dispute at trial by going
"beyond the pleadings" and designating specific
facts for support. Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994). "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.
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)). 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) (internal citations omitted); Reid v. State Farm
Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986)
(the court must "review the facts drawing all inferences
most favorable to the party opposing the motion"). 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 and
tenuous that it could not support a judgment in the
nonmovant's favor. Little, 37 F.3d at 1075.
Local Rule 56.1 requires the moving party to file a statement
of material facts as to which it contends there is no genuine
issue to be tried. Pursuant to Local Rule 56.2, the party
opposing the motion for summary judgment must set forth a
"short and concise statement of the material facts as to
which there exists a genuine issue to be tried." All
material facts set forth in the statement required to be
served by the moving party "will be deemed admitted, for
purposes of the motion, unless controverted as required by
this rule." Local Rule 56.2.
1983 provides a federal cause of action for the
"deprivation of any rights, privileges or immunities
secured by the Constitution and laws" against any person
acting under color of state law. 42 U.S.C. § 1983.
Section 1983 does not itself create substantive rights;
rather, it merely provides remedies of rights guaranteed to
citizens by the United States Constitution or other federal
laws. See Graham v. Connor, 490 U.S. 386, 393-94,
109 S.Ct. 1865, 1871 (1989); City of Oklahoma City v.
Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 2432 (1985).
Nonetheless, the doctrine of qualified immunity shields
government officials from liability for claims against them
in their individual capacity "insofar as their conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800,
818, 102 S.Ct. 2727 (1982). The doctrine of qualified
immunity serves to shield government officials from
harassment, distraction, and liability when they perform
their duties reasonably, and it applies regardless of whether
the official's error is "a mistake of law, a mistake
of fact, or a mistake based on mixed questions of law and
fact." Pearson v. Callahan, 555 U.S. 223, 231,
129 S.Ct. 808, 815 (2009) (quoting Groh v. Ramirez,
540 U.S. 551, 567, 124 S.Ct. 1284 (2004) (Kennedy, J.,
qualified immunity is "an immunity from suit rather than
a mere defense to liability, ... it is effectively lost if a
case is erroneously permitted to go to trial."
Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct.
2806 (1985). Consequently, qualified immunity questions
should be resolved at the earliest possible stage in
litigation. See Hunter v. Bryant, 502 U.S. 224, 227,
112 S.Ct. 534 (1991) (per curiam). While qualified immunity
is technically an affirmative defense, once it has been
raised, it is the plaintiff's burden to negate the
defense. Poole v. City of Shreveport, 691 F.3d 624,
627 (5th Or. 2012).
Saucier v. Katz,533 U.S. 194, 201, 121 S.Ct. 2151
(2001), the Supreme Court held that a court ruling upon the
issue of qualified immunity must apply a two-step analysis.
First, the court must determine whether "the facts
alleged show the officer's conduct violated a
constitutional right." Id. Second, if a
violation has been established, the court must determine
whether the officer's actions were objectively reasonable
in light of clearly established law at the time of the
conduct in question. See id.: Freeman v.
Gore,483 F.3d 404, 411 (5th Cir. 2007). The court may
evaluate these steps in whichever order it so
chooses. "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. Corpus Christi, 202 F.3d 730,
736 (5th Cir. 2000). If officers of reasonable competence
could disagree as to whether the plaintiff's rights were
violated, the officer's qualified immunity remains
intact. See Tarver v. City of Edna, 410 F.3d 745,
750 (5th Cir. 2005) (citing Malley v. Briggs, 475
U.S. 335, 341, 106 S.Ct. 1092 (1986) (holding the qualified
immunity standard "gives ample room for mistaken
judgments" by protecting "all but the ...