Donathon L. STEPHENSON; C. Renee Stephenson, Plaintiffs-Appellants v. Chief Charles McCLELLAND; C.M. Duncan, Defendants-Appellees.
No. 15-20182
United States Court of Appeals, Fifth Circuit.
Dec. 4, 2015.
179
Summary Calendar.
Cassandra Renee Stephenson, Houston, TX, pro se.
Kathleen Hopkins Alsina, City of Houston Legal Department, Houston, TX, for Defendants-Appellees.
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Plaintiffs Donathon L. Stephenson1 (“Mr. Stephenson“) and C. Renee Stephenson (“Mrs. Stephenson“) appeal the dismissal of their claims under
I. Background
On June 15, 2010, Houston police officer C.M. Duncan responded to an anonymous tip in a 911 call reporting the presence of a man brandishing a gun on a residential street in southwest Houston. Officer Duncan drove to the neighborhood where the caller reported seeing the individual. From a distance, Officer Duncan spotted an individual who appeared to match the caller‘s description, although he was too far away to determine whether the individual had a gun. The individual was standing in front of a residence near a car parked in a driveway. Officer Duncan pulled over to investigate further and activated the lights of his patrol car. As he exited his patrol car, he verbally commanded the individual to stop and show his hands. Officer Duncan observed that the individual did not immediately respond and instead began moving away from the car towards the front of the house. The individual was saying something that Officer Duncan could not understand. Officer Duncan testified that, based on the 911 call reporting that the individual had a gun and the fact that the individual did not comply with Officer Duncan‘s verbal commands, he was concerned for his safety. He began to draw his weapon as he exited his patrol car.
The suspect was later identified as Karlton Stephenson, a 16-year-old resident of the address where this incident occurred. Karlton testified that he had gone outside
As Officer Duncan approached Karlton, he was surprised by a large dog, which was later identified as the 50-pound, three-year-old boxer belonging to the Stephensons. Officer Duncan testified that the dog bared its teeth and jumped on him. Karlton claimed, however, that the dog did not jump and was “smiling.” It is undisputed, however, that the dog was in the front yard without a leash and appeared suddenly as Officer Duncan reached Karlton. Officer Duncan fired one shot at the dog, testifying that he did so because he feared for his safety. Officer Duncan then proceeded to detain and search Karlton. The dog died later that day.
Having heard the gunshot, Mrs. Stephenson, Karlton‘s mother, came out of the front door of the residence. Officer Duncan told Mrs. Stephenson that he was responding to a 911 call and ordered her to keep her distance while he completed his investigation. Mrs. Stephenson acknowledged during her deposition testimony that she refused to comply, followed Officer Duncan as he walked Karlton to his police vehicle, and that she repeatedly questioned Officer Duncan about his actions. She testified that while Officer Duncan searched Karlton at the police car, she stood near Karlton, despite Officer Duncan‘s requests that she remain clear of his investigation.
Other neighbors began to emerge from the surrounding houses and family members began to arrive. Seeing a crowd develop, Officer Duncan called for backup, and other officers, including Officer Duncan‘s supervisor, Sergeant McCray, arrived at the scene to assist with crowd control. Sergeant McCray also ordered Mrs. Stephenson to stay clear of the scene to allow the officers to complete their investigation. Officer Duncan eventually asked another officer to place Mrs. Stephenson in the back of his patrol vehicle. Mrs. Stephenson was escorted to the back of the vehicle, but she was not handcuffed.
Mr. Stephenson then arrived at the scene and officers also requested that he remain clear of the area of the investigation and refrain from interfering with the officers. The record indicates that Mr. Stephenson repeatedly questioned the officers and failed to comply with their instructions not to interfere with the investigation. After several warnings, he was handcuffed and placed in a patrol vehicle.
Officer Duncan eventually transported Karlton to the Houston Police Department Juvenile Division, where he was charged with evading arrest. Mr. and Mrs. Stephenson were both released before Karlton was taken to the station. No charges were filed against them. Karlton was later released to his parents and the charges against him were ultimately dismissed.
Mr. and Mrs. Stephenson filed this suit individually and on behalf of their son under
Before trial, the district court concluded that Karlton‘s malicious prosecution claim was properly addressed as a claim for unreasonable search and seizure under the Fourth Amendment. At trial, the jury found that Officer Duncan did not lack reasonable suspicion to detain Karlton and found that Officer Duncan was entitled to qualified immunity. The district court entered a partial take nothing judgment on Karlton‘s claim, and on March 6, 2015, the court entered a final judgment on all claims in favor of defendants. Plaintiffs filed this appeal.
II. Jurisdiction and Standard of Review
The district court had jurisdiction over the Stephensons’ claims pursuant to
We review de novo a district court‘s grant of summary judgment, applying the same standards as the district court. Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). Summary judgment is appropriate if the evidence shows that there is no genuine dispute as to any material fact. Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011);
III. Discussion
A. Qualified Immunity
A government official performing a discretionary function is entitled to qualified immunity unless his actions violate a clearly established right of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Where, as here, a defendant invokes qualified immunity in a motion for summary judgment, it is the plaintiff‘s burden to show that the defendant is not entitled to qualified immunity. See Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). That is, the plaintiff must present evidence sufficient to create a genuine dispute of material fact as to whether (1) the official‘s conduct violated a constitutional right of the plaintiff, and (2) the constitutional right was clearly established so that a reasonable official in the defendant‘s situation would have understood that his conduct violated that right. See id.; Pearson v. Callahan, 555 U.S. 223, 232 (2009).
B. First Amendment Claims
Plaintiffs challenge the district court‘s grant of summary judgment on their claims that Officers Duncan and McCray violated their First Amendment rights by detaining3 them in retaliation for their speech. They allege that the officers detained them for “verbally opposing” the officers’ commands that they stay in the house and for challenging the officers’ presence at their home, the arrest of their minor son, and the killing of their family dog. The district court determined that Officers Duncan and McCray were entitled to qualified immunity because the record did not support a finding that the officers violated an established constitutional right or acted objectively unreasonably in placing Mr. and Mrs. Stephenson in patrol cars during the investigation. We agree.
“The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers,” Enlow v. Tishomingo Cty., 962 F.2d 501, 509 (5th Cir. 1992), but if an officer has probable cause to believe that a person is guilty of a crime, “any argument that the arrestee‘s speech as opposed to her criminal conduct was the motivation for her arrest must fail,” Mesa v. Prejean, 543 F.3d 264, 273 (5th Cir. 2008). The district court found here that Mr. and Mrs. Stephenson‘s detention was based on their refusal to comply with the officers’ instructions to move away from the scene of the investigation. Under Texas law, a person commits the offense of “interference with public duties” when “the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with . . . a peace officer while the peace officer is performing a duty.” See Haggerty v. Tex. S. Univ., 391 F.3d 653, 656 (5th Cir. 2004) (alteration in original). Mrs. Stephenson testified that Officer Duncan ordered her to go back in her house and to remain clear of the scene of
There is similar evidence with respect to Mr. Stephenson. Mrs. Stephenson testified that when her husband arrived, he was distraught and upset and that he was walking around the front yard attending to the dog. She saw him take the dog into the house, and then bring the dog back outside. Officers warned Mr. Stephenson to stay away from the crime scene so they could preserve its integrity, but Mr. Stephenson disobeyed those instructions. After he had been warned numerous times to cease walking through the crime scene, officers handcuffed Mr. Stephenson and placed him in a patrol car.
Based on these undisputed facts, a reasonable officer in either Officer Duncan‘s or Officer McCray‘s position could have believed that Mr. and Mrs. Stephenson‘s actions constituted interference with the officers’ duties such that detention was warranted. The record does not support the conclusion that Mr. and Mrs. Stephenson were detained for asking too many questions or verbally opposing the officers. Accordingly, we conclude that Officers Duncan and McCray are entitled to qualified immunity on Plaintiffs’ First Amendment claims. See, e.g., Haggerty, 391 F.3d at 656-57 (concluding that a reasonable officer could have believed detention was necessary where the plaintiff was loudly arguing with officers and continued to approach officers after being told to step back or get away); Keith v. Schuh, 157 F.3d 900, 1998 WL 611207, at *3 (5th Cir. 1998) (unpublished) (undisputed evidence showed that an officer detained a plaintiff because he believed she might pose a security risk if left unsecured).
C. Fourth Amendment Claims
Plaintiffs also challenge the district court‘s grant of summary judgment on their claims that Officers Duncan and McCray violated their Fourth Amendment rights by (1) detaining them without probable cause; (2) using excessive force in detaining Mr. Stephenson; and (3) unreasonably seizing their dog. We consider each claim in turn.4
1. Seizure of Mr. and Mrs. Stephenson
Plaintiffs contend that Officers Duncan and McCray violated their Fourth Amendment rights by detaining them in their patrol cars without probable cause. Because we have already concluded that Officers Duncan and McCray acted reasonably in detaining Mr. and Mrs. Stephenson, see supra Part III.B, we conclude that the officers are entitled to qualified immunity on these Fourth Amendment claims.
Plaintiffs contend that Officer Duncan violated Mr. Stephenson‘s Fourth Amendment rights by using excessive force in handcuffing Mr. Stephenson. Specifically, Mr. Stephenson complains that the handcuffs Officer Duncan used in detaining him were too tight and caused bruising on and pain in his wrists. Mr. Stephenson testified that he did not need to see a doctor as a result of these injuries. Accepting these facts as true, Mr. Stephenson‘s excessive force claim fails. An excessive force claim under the Fourth Amendment requires: “(1) an injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005). We have previously held that bruising as a result of handcuffing too tightly, without more, does not amount to excessive force. Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001); see also Lockett v. New Orleans City, 607 F.3d 992, 999 (5th Cir. 2010); Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007) (“[M]inor, incidental injuries that occur in connection with the use of handcuffs to effectuate an arrest do not give rise to a constitutional claim for excessive force.“). Mr. Stephenson‘s allegations regarding Officer Duncan‘s application of handcuffs are insufficient to raise a question of fact with respect to the alleged use of excessive force, and therefore Officer Duncan is entitled to qualified immunity on this claim.
3. Seizure of the Family Dog
Plaintiffs contend that Officer Duncan violated their Fourth Amendment right to be free from unlawful seizure when he shot and killed their family dog. Officer Duncan contends that he was entitled to qualified immunity from this claim because his actions were objectively reasonable under the circumstances.
This court has held that the killing of a dog can constitute a seizure within the meaning of the Fourth Amendment. See Grant v. City of Houston, No. 14-20653, 625 Fed.Appx. 670, 674 (5th Cir. 2015). The Fourth Amendment requires that a seizure be objectively reasonable. In making such a determination, we look to the totality of the circumstances, balancing “the nature and quality of the intrusion on the individual‘s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396-97 (1989). “We analyze this question from the perspective ‘of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight[,]” and “allo[w] for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Plumhoff v. Rickard, — U.S. —, 134 S.Ct. 2012, 2020 (2014) (second alteration in original) (quoting Graham, 490 U.S. at 396-97).
The only witnesses to the shooting of the dog were Officer Duncan and Karlton. Officer Duncan testified that as he approached Karlton, the dog surprised him and growled or barked. Officer Duncan further stated that the dog jumped on him and bared its teeth, at which point Officer Duncan discharged his weapon once, and the dog retreated. Karlton testified that his dog was not on a leash at the time that Officer Duncan arrived, but that the dog was very friendly and was not aggressive. Karlton testified that his dog did not jump at Officer Duncan, but looked like it was “smiling.”
D. Municipal Liability Claims Against Chief McClelland
Plaintiffs appear to appeal the district court‘s grant of summary judgment in favor of Chief McClelland on their municipal liability claims. Plaintiffs allege that Chief McClelland was actually or constructively aware of a custom or policy wherein officers would charge individuals with unwarranted evading arrest or detention charges. The district court concluded that there was insufficient evidence to support an inference that it was the practice of the Houston Police Department (“HPD“) to file unsupported evading arrest charges.
In order to bring a § 1983 claim for municipal liability, a plaintiff must allege a constitutional violation resulting from a municipal custom or policy. Monell v. N.Y. Dep‘t of Soc. Servs., 436 U.S. 658, 690-94 (1978). To the extent that Plaintiffs assert this claim on behalf of their son, Karlton Stephenson, the court does not have jurisdiction over this appeal. See supra, Part II. To the extent that Plaintiffs assert this claim on their own behalf, they have failed to identify a constitutional violation that they suffered as a result of the alleged municipal policy of unwarranted evading arrest charges: there is no evidence in the record that either Mr. or Mrs. Stephenson was arrested or charged, or even detained for evading arrest. Accordingly, we affirm the district court‘s dismissal of Plaintiffs’ claims against Chief McClelland in his official capacity.
AFFIRMED.
PER CURIAM