Washington v. Smith

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

BRUCE WASHINGTON, ET AL. CIVIL ACTION

VERSUS No. 22-632

RANDY SMITH, ET AL. SECTION I

ORDER & REASONS

Before the Court is a motion1 by defendant Alexander Thomas (“Thomas”) for

summary judgment as to plaintiff Bruce Washington’s (“Washington”) claim of

unlawful search.2 For the reasons that follow, the Court denies the motion.

I. FACTUAL BACKGROUND

As discussed below, the parties’ characterizations of the factual record differ.

The facts set forth, in this section, however, are undisputed.3

This case arises out of a traffic stop that occurred on the evening of March 13,

2021.4 Washington was driving his car, with Gregory Lane as the passenger.5

Deputies from the St. Tammany’s Parish Sheriff’s Office (“STPSO”), including

Thomas, stopped Washington’s vehicle for an alleged failure to use his turn signal

1 R. Doc. No. 84.

2 The motion also requests summary judgment as to plaintiffs’ First Amendment

claim against various unidentified Doe defendants. The Court recently denied

plaintiffs’ motion for leave to amend the complaint to identify the Doe defendants. R.

Doc. No. 122. The Court therefore will not address the parties’ arguments as to that

claim.

3 See generally R. Doc. No. 120-1.

4 Id. ¶ 1.

5 Id.

and improper lane usage.6

Thomas approached Washington’s vehicle on the driver’s side and asked for his

license and registration.7 Washington asked Thomas why he had been stopped.8

Thomas asked Washington where he and Lane were coming from, and Washington

further questioned the purpose of the stop.9 During this exchange, Thomas told

Washington that Washington was “going to make this go a different way than it has

to be.”10 Thomas then told Washington to exit the vehicle.11

Thomas asked Washington if he had any weapons, to which Washington

responded, “I don’t tote weapons.”12 Thomas responded, “do you mind if I pat you

down for officer safety.”13 Washington did not respond verbally.14 He turned around

and put his hands in the air.15 Thomas responded, “thank you.”16

The traffic stop continued for approximately fifteen minutes after Thomas

patted Washington down, concluding with Washington receiving a traffic citation.

6 Id. ¶ 18.

7 Id. ¶¶ 12, 14.

8 Id. 11. The parties dispute whether Washington “interrupted” Thomas by asking

why he had been stopped. It is undisputed—and corroborated by Thomas’ body

camera footage—that Thomas asked Washington for his license and registration and

that Washington asked why he had been stopped.

9 Id. ¶¶ 15–21. Again, the parties’ characterizations of this conversation differ; the

words exchanged, however, appear to be undisputed, and are corroborated by the

body camera footage.

10 Id. ¶ 22.

11 Id. ¶ 24.

12 Id. ¶¶ 26–27.

13 Id. ¶ 34. The parties dispute whether this statement was a question. Id.

14 Id. ¶¶ 35, 36.

15 Id.

16 Id.

Subsequent to the traffic stop, plaintiffs allegedly attempted to lodge a complaint

against Thomas, as well as Deputies Jackson Bridel and Shaun Wood, who were also

present at the stop, with the STPSO administrative office. The Court does not further

recount these facts here as the only claim properly challenged in defendants’ motion

for summary judgment is Washington’s claim against Thomas for unlawful search.17

I. STANDARDS OF LAW

a. Summary Judgment

Summary judgment is proper when, after reviewing the pleadings, the

discovery and disclosure materials on file, and any affidavits, a court determines that

there is no genuine dispute of material fact and the movant is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(a). “[A] party seeking summary judgment always

bears the initial responsibility of informing the district court of the basis for its

motion, and identifying those portions of [the record] which it believes demonstrate

the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). The party seeking summary judgment need not produce evidence

negating the existence of a material fact; it need only point out the absence of evidence

supporting the other party’s case. Id.; see also Fontenot v. Upjohn Co., 780 F.2d 1190,

1195–96 (5th Cir. 1986) (“There is no sound reason why conclusory allegations should

suffice to require a trial when there is no evidence to support them even if the movant

lacks contrary evidence.”).

17 See supra note 2.

Once the party seeking summary judgment carries that burden, the

nonmoving party must come forward with specific facts showing that there is a

genuine dispute of material fact for trial. See Matsushita Elec. Indus. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by

creating “‘some metaphysical doubt as to the material facts,’ by ‘conclusory

allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Rather, a

genuine issue of material fact exists when the “evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).

“Although the substance or content of the evidence submitted to support or

dispute a fact on summary judgment must be admissible . . . the material may be

presented in a form that would not, in itself, be admissible at trial.” Lee v. Offshore

Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017) (citations omitted).

The party responding to the motion for summary judgment may not rest upon the

pleadings but must identify specific facts that establish a genuine issue. See

Anderson, 477 U.S. at 248. The nonmoving party’s evidence, however, “is to be

believed, and all justifiable inferences are to be drawn in [the nonmoving party’s]

favor.” Id. at 255. If the nonmovant fails to meet their burden of showing a genuine

issue for trial that could support a judgment in favor of the nonmovant, summary

judgment must be granted. See Little, 37 F.3d at 1075–76.

B. Qualified Immunity

“Governmental officers sued in their individual capacity are entitled to

qualified immunity insofar as their conduct ‘did not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.’”

Schmidt v. Stassi, 250 F. Supp. 3d 99, 102 (E.D. La. 2017) (Africk, J.) (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). To overcome qualified immunity, a plaintiff

must show two things: first, that the defendant violated their constitutional rights

and, second, that the defendant’s actions were objectively unreasonable in light of

clearly established law. Salazar v. Molina, 37 F.4th 278, 281 (5th Cir. 2022); United

States ex rel. Parikh v. Brown, 587 F. App’x 123, 128 (5th Cir. 2014). A right is “clearly

established” for purposes of qualified immunity “when, at the time of the challenged

conduct, the contours of the violated right were sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.”

United States ex rel. Parikh, 587 F. App’x at 128 (quotation and citation omitted).

“[T]he usual summary judgment burden of proof is altered in the case of a

qualified immunity defense.” Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir.2005)

(citing Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001)). Once the defense

is raised, “the burden then shifts to the plaintiff, who must rebut the defense by

establishing a genuine fact issue as to whether the official's allegedly wrongful

conduct violated clearly established law.” Brown v. Callahan, 623 F.3d 249, 253 (5th

Cir. 2010). The plaintiff must likewise “adduce[ ] sufficient evidence to raise a genuine

issue of material fact suggesting [the defendant’s] conduct violated an actual

constitutional right.” Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). Though

the plaintiff bears the burden of negating the availability of qualified immunity, all

inferences are still drawn in the plaintiff’s favor. Brown, 623 F.3d at 253.

II. ANALYSIS

a. Unlawful Search Under the Fourth Amendment

In order to justify the frisk of Washington, Thomas must have had reasonable

suspicion that Washington was armed and dangerous. Arizona v. Johnson, 555 U.S.

323, 332 (2009); Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977). Reasonable

suspicion must be supported by “specific and articulable facts suggesting actual

physical risk to [the officer] or others.” United States v. Jenson, 462 F.3d 399, at 407

(5th Cir. 2006) (quotation and citation omitted). Reasonable suspicion is to be

“determined by looking to ‘the totality of the circumstances—the whole picture.’”

United States v. Jordan, 232 F.3d 447, 449 (5th Cir. 2000) (quoting United States v.

Sokolow, 490 U.S. 1, 7–8 (1989)).

A frisk that is not justified by reasonable suspicion may nevertheless be

constitutional if there is consent to the search. United States v. Montgomery, 777 F.3d

269, 272–73 (5th Cir. 2015). However, “[c]onsent is valid only if voluntary.” United

States v. Gomez-Moreno, 479 F.3d 350, 357 (5th Cir. 2007), overruled on other grounds

by Kentucky v. King, 563 U.S. 451 (2011). To determine if consent is voluntary, the

Fifth Circuit considers six factors:

1) the voluntariness of the defendant’s custodial status; 2) the presence of

coercive police procedures; 3) the extent and level of the defendant’s

cooperation with the police; 4) the defendant’s awareness of his right to

refuse consent; 5) the defendant’s education and intelligence; and 6) the

defendant’s belief that no incriminating evidence will be found.

United States v. Hernandez, 279 F.3d 302, 307 (5th Cir. 2002). No factor is

determinative. United States v. Guidry, No. 18-414, 2018 WL 6725372, at *3 (E.D.

La. Dec. 21, 2018) (Ashe, J.) (citing United States v. Shabazz, 993 F.2d 431, 438 (5th

Cir. 1993)). Furthermore, “[i]t is well established that a defendant's mere

acquiescence to a show of lawful authority is insufficient to establish voluntary

consent.” United States v. Jaras, 86 F.3d 383, 390 (5th Cir. 1996) (citing Bumper v.

North Carolina, 391 U.S. 543, 548–49 (1968) (further citations omitted); see also

Florida v Royer, 460 U.S. 491, 497 (1983) (noting that consent is not established by a

showing of “mere submission to a claim of lawful authority”).

“[W]hether a consent to a search was in fact ‘voluntary’ or was the product of

duress or coercion, express or implied, is a question of fact to be determined from the

totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227,

(1973). “Voluntariness of consent is an objective inquiry that asks ‘what would the

typical reasonable person have understood by the exchange.’” United States v.

Bogomol, No. 18-11486, 2021 WL 3620444, at *4 n.6 (5th Cir. 2021) (unpublished)

(quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)).

Having reviewed the record, the Court concludes that there are genuine issues

of material fact as to whether Thomas had reasonable suspicion to search Washington

and whether Washington consented to the search.18 The Court likewise concludes

18 The Court does not wade into the plaintiffs’ evidentiary objections to portions of

Washington’s deposition testimony and certain defense exhibits. R. Doc. No. 120, at

that there are genuine issues of material fact as to whether Thomas’ conduct

was objectively reasonable in light of the clearly established law governing

frisks. United States ex rel. Parikh, 587 F. App’x at 128. Therefore, the Court

concludes that Washington has carried his burden of establishing genuine

factual issues as to whether Thomas committed a constitutional violation, and

whether his conduct violated clearly established law. Brown, 623 F.3d at 253;

Brumfield, 551 F.3d at 326.

Both parties point to the body camera footage of the traffic stop as supportive

of their respective positions. Thomas asserts that the footage shows that Washington

was “argumentative,”19 “reluctant and evasive,”20 and that he “refused to comply with

initial commands.”21 Plaintiffs, in contrast, argue that the footage shows that

Washington was simply asking “legitimate questions as to the basis for the traffic

stop,” and point out that the footage shows Washington complying with Thomas’

commands.22

8–10. The Court also does not take any position with respect to whether certain of

defendants’ responses to plaintiffs’ requests for admission constitute default

admissions. Id. at 10. The Court notes that “[t]he denial of a request for admission

‘as written’ without further explanation is evasive.” Hamm v. Acadia Healthcare, No.

20-1515, 2020 WL 9597790, at *3 (E.D. La. Sept. 25, 2020) (Douglas, M.J.) (emphasis

added) (citing Janko v. Fresh Mkt., Inc., No.13-648, 2015 WL 4714928, at *2 (M.D.

La. Aug. 5, 2015) (further citations omitted)).

19 R. Doc. No. 84-2, at 11.

20 Id. at 15.

21 Id. at 12.

22 R. Doc. No. 120, at 22–23.

Thomas further argues, pointing to his own deposition testimony, that his

experience as an officer led him to believe that Washington may have been armed.23

Plaintiffs point out, however, that a portion of Thomas’ testimony suggests that

Thomas did not believe he had the authority to search Washington without consent.24

Taken together, the parties’ factual disputes preclude summary judgment as to

whether Thomas’ actions violated the clearly established law that requires officers to

have reasonable suspicion that a person is armed and dangerous before conducting a

frisk.25

As to whether Washington consented to the frisk, Thomas claims—without

applying the voluntariness factors set out above—that “any objective, reasonable

person, after reviewing the body camera footage, would have understood by the

exchange between Deputy Thomas and Mr. Washington, that [Washington’s actions]

23 R. Doc. No. 125, at 8 (Q: “[D]id all of these things taken in toto give you what you

believe to be reasonable suspicion of Mr. Washington at that point in time?” A: “It

did.”).

24 R. Doc. No. 84-2, at 20; R. Doc. No. 120-6, at 98:8–21 (Q: “If Mr. Washington had

told you that he didn’t consent to being patted down . . . would you have patted him

down?” [objection omitted] A: “No sir. Not at that exact moment.” Q: “What do you

mean by that?” A: “ . . . If he would have done something that warranted one against

his consent, then sure, I would have done one. But for the facts that we had at that

moment, no.”)

25 The Court notes that alleged uncooperativeness does not alone establish reasonable

suspicion that a person is armed and dangerous, Estep v. Dallas Cnty., 310 F.3d 353,

359 (5th Cir. 2002), and that “a conclusional statement that a suspect appeared

nervous” is entitled to “little or no weight.” United States v. Portillo-Aguire, 311 F.3d

647, 656 n.49 (5th Cir. 2002). Moreover, to the extent that the stop occurred in a high

crime area, which the parties dispute, that circumstance also cannot, on its own,

establish reasonable suspicion. United States v. Hill, 752 F.3d 1029, 1035–36 (5th

Cir. 2014).

signaled that he was consenting the officer safety patdown.”26 But plaintiffs point to

evidence in the record that, if credited, would allow a factfinder to determine that

Washington’s actions indicated mere acquiescence rather than voluntary consent. For

example, plaintiffs point out that the frisk occurred just after Thomas told

Washington that Washington was going to make the stop “go a different way.” The

intended meaning of this statement is unclear, but at this stage, the Court must draw

all reasonable inferences in Washington’s favor. Anderson, 477 U.S. at 255. This

statement, in combination with the other facts pointed to by Washington,27 raises a

genuine issue of material fact as to whether it was objectively reasonable for Thomas

to believe he had Washington’s consent for the frisk.28

Because Washington has pointed to specific facts, supported by competent

evidence, that show genuine issues of material fact as to whether Thomas engaged in

conduct that violated the clearly established law of frisks, summary judgment must

be denied. Brown, 623 F.3d at 253.

Accordingly,

IT IS ORDERED that Thomas’ motion for summary judgment is DENIED.

26 R. Doc. No. 84-2, at 19 (footnote omitted); see also R. Doc. No. 125, at 22.

27 Plaintiffs also point to the presence of three deputies during the traffic stop, as

supported by the body camera footage; and Washington’s declaration stating that he

“fe[lt] that [Thomas] was threatening him” and that he “did not want [Thomas] to

[pat him down] but [he] knew that if [he] said no, he would pat [him] down anyway[.]”

R. Doc. No. 120-4, ¶¶ 9–10.

28 Defendants argue that the case law cited by plaintiffs is not sufficiently factually

analogous to clearly establish that Thomas’ alleged conduct was unlawful. However,

plaintiffs have pointed to case law establishing that silence or mere acquiescence is

insufficient to establish consent.

New Orleans, Louisiana, December 22, 2022.

of CE M. AFRICK

UNITED SAATES DISTRICT JUDGE

11