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Konrad v. T A Kolb

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

August 13, 2019

ALBERT KONRAD
v.
T A KOLB, ET AL

          KAREN L. HAYES, Judge

          MEMORANDUM RULING

          ELIZABETH E. FOOTE, UNITED STATES DISTRICT JUDGE

         Pending 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").[1] 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.

         BACKGROUND

         On the 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, [2] 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. Eventually, Konrad, who had been drinking during the evening, [3] 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.

         Meyers 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.

         Monica 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 supplied. Id.

         The 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.

         The 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.

         What 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. Id.

         In 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.

         The 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.

         Based 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 claims.[4]

         STANDARD

         Federal 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."[5] 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.

         If the 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.

         Additionally, 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.

         LAW AND ANALYSIS

         I. Qualified Immunity.

         Section 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., dissenting)).

         Because 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).

         In 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.[6] "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 ...


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