Bisetti v. City Of Austin

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

FABRIZIO BISETTI, §

Plaintiff §

§

v. §

§ No. A-19-CV-00616-DH

CITY OF AUSTIN, TEXAS; AND §

OFFICER BRENDAN §

MCMORROW, AUSTIN POLICE §

DEPARTMENT; §

Defendants §

ORDER

Before the Court are the motions for summary judgment filed by Defendant

City of Austin, Dkt. 85, and Defendant Brendan McMorrow, Dkts. 86, 96, and the

motion to strike filed by McMorrow, Dkt. 99; and all related briefing. Having

considered the parties’ arguments, the evidence, and the relevant law, the Court will

deny Officer McMorrow’s motion for summary judgment and grant the City’s.

I. BACKGROUND

Plaintiff Fabrizio Bisetti initiated this lawsuit following his arrest by

Defendant Brendan McMorrow, an officer with the Austin Police Department, for

assault with injury-family violence. Dkts. 68; 85-3. Bisetti claims that the arrest

violated his constitutional rights because it was made without probable cause based

on APD’s alleged policy of requiring officers to arrest anyone accused of domestic

violence, even where there is no probable cause for an arrest. Dkt. 68, at 7-8. Bisetti

brought two causes of action against Defendants McMorrow and the City of Austin

under 42 U.S.C. § 1983 for false arrest and wrongful institution of legal process in

violation of the Fourth Amendment. Id.

Bisetti originally contacted the police on the morning of his arrest when his

wife, Begum Guvenc, did not return home after attending synagogue and failed to

pick up their children from day care. Dkts. 85-1, at 64-69; 85-3, at 3. After locating

the family’s car at an apartment complex, Bisetti called the police to help him locate

his wife. Dkts. 95-1, at 74-75; 85-3, at 3. Officer McMorrow responded to Bisetti’s call

and helped him find the apartment where Guvenc was located. Dkts. 85-2, at 70-72;

85-3, at 3. Guvenc was asleep in the apartment, and when awakened, appeared to be

“extremely intoxicated.” Dkts. 85-2, at 72-74; 85-3, at 3 (reporting that Guvenc

“appeared to be extremely intoxicated with red, bloodshot, watery eyes, slurred

speech, and an odor of a metabolized alcoholic beverage emitting from her breath,

and appearing to be very unsteady on her feet.”); 90-4, at 19 (“In my police-

investigative opinion, I believe she was intoxicated.”).

Guvenc’s friend indicated that she had drunk too much alcohol and had “passed

out” at his apartment in the complex, though Guvenc claimed she had food poisoning.

Dkts. 85-1, at 84; 85-2, at 67; 85-3, at 3. McMorrow testified that he did not find

Guvenc’s claim that she had food poisoning from a hot dog to be credible because she

smelled of alcohol, and her friend had already told him she had drunk too much

alcohol. Dkts. 85-2, at 67; 90-4, at 17-19 (“[i]t’s not possible that what I observed was

not due to alcohol”). Bisetti appeared relieved that his wife was safe, and took her

home, while Guvenc seemed “very frustrated that he would have called 911 for this.”

Dkts. 85-2, at 77; 85-3, at 3.

Later that same morning, Guvenc contacted the police after the couple got into

an argument over the prior call to the police. Dkts. 83-3, at 3; 95-2, at 81. When police

arrived at the couple’s home, Bisetti was sitting on the front porch of the house and

Guvenc was inside. Dkt. 90-6, at 8. Bisetti told the officer that the couple had been

fighting over the earlier interaction with police, and Guvenc had threatened to call

her mother. Dkt. 90-6, at 8-9. Bisetti then took the phone from Guvenc’s hands and

held it out of her reach. Dkt. 90-6, at 8-9. When he “realized that this was getting out

of hand,” he put the phone down, and left the house to take a walk and get some air

Dkt. 90-6, at 8-9. When he returned from the walk, the doors of his home were locked,

and he could hear his wife calling the police. Dkt. 90-6, at 8-9. Bisetti waited outside

the house until the police arrived. Dkt. 90-6, at 8-9.

When police spoke with Guvenc, she similarly told them the couple had been

fighting about the previous 911 call and how it might affect her custody over the

children. Dkts. 90-4, at 10-11; 90-6, at 8-9. However, Guvenc told the police that as

Bisetti was holding the phone out of her reach, he hit her on the right cheek with the

back of his closed fist, which she said caused her pain. Dkts. 90-4, at 11; 90-6, at 9.

Guvenc also told McMorrow that Bisetti had strangled her a couple of months earlier

on New Year’s Eve. Dkt. 32, at 7. McMorrow wrote in his police report that while

“there was some very slight redness to the right cheek area,” Guvenc had been

“pressing on it rather firmly” to show him the injury though “this did not seem to

cause her further pain and could have also contributed to the slight redness I

observed.” Dkts. 90-4, at 12 (“I believe [her cheek] got a little red after the bag of

frozen peas were on it”); 90-6, at 9. Guvenc also expressed concern that the earlier

call to the police could impact her ability to gain custody over her children in the

future. Dkts. 90-6, at 9; 90-8, at 17-18 (“I felt more as though … this was a calculated

response to his 911 call earlier, almost like a tit for tat to build up a case for later”).

Based on Guvenc’s allegation that Bisetti struck her in the face, McMorrow

placed Bisetti under arrest. Dkt. 90-6, at 9. McMorrow stated in the affidavit in

support of Bisetti’s arrest that Guvenc asserted that at some point while withholding

her phone Bisettti had “struck her on her right cheek using the back of his closed fist

causing her pain,” and noted that “there was some minor redness to the right cheek

area.” Dkt. 85-3, at 3. McMorrow later testified at the couple’s divorce proceeding that

he did not believe an assault took place on the day Bisetti was arrested because he

“didn’t see any evidence of it” and “she seemed to tell me [a] story not indicative of

most victims of assault.” Dkt. 90-4, at 10-12, 14-15; 90-9, at 46.

McMorrow testified that he only arrested Bisetti because he believed he “didn’t

have a choice” under the APD family violence policy, which he believed required him

to make an arrest “whenever there is an accusation of family-violence assault.” Dkt,

90-4, at 13. McMorrow further testified that he believed he could not include anything

Bisetti had told him in his arrest affidavit unless “it help[ed] go towards probable

cause.” Dkt. 90-9, at 41. McMorrow stated he would not have arrested Bisetti absent

his understanding that he was required to do so under APD policy. Dkt, 90-4, at 13.

APD police chief Brian Manley testified that if McMorrow “did not believe the

assault had occurred, then he should not have filled out a [probable cause] affidavit

saying an assault occurred and signed it” because “[i]f an assault didn’t occur, there

can’t be probable cause for an assault.” Dkt. 90-5, at 32, 40. McMorrow testified that

he did not receive any further training after arresting Bisetti under the APD family

violence policy. Dkt. 90-9, at 33.

II. LEGAL STANDARDS

Summary judgment is appropriate when the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine dispute

as to any material fact and that the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986);

Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007). A dispute regarding a

material fact is “genuine” if the evidence is such that a reasonable jury could return

a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). When ruling on a motion for summary judgment, the court is

required to view all inferences drawn from the factual record in the light most

favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475

U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. Further, a court “may not make

credibility determinations or weigh the evidence” in ruling on a motion for summary

judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000);

Anderson, 477 U.S. at 254-55.

Once the moving party has made an initial showing that there is no evidence

to support the nonmoving party’s case, the party opposing the motion must come

forward with competent summary judgment evidence of the existence of a genuine

fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not

competent summary judgment evidence, and thus are insufficient to defeat a motion

for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343

(5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported

speculation are not competent summary judgment evidence. Id. The party opposing

summary judgment is required to identify specific evidence in the record and to

articulate the precise manner in which that evidence supports his claim. Adams v.

Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). If the nonmoving

party fails to make a showing sufficient to establish the existence of an element

essential to its case and on which it will bear the burden of proof at trial, summary

judgment must be granted. Celotex, 477 U.S. at 322-23.

III. MOTION FOR SUMMARY JUDGMENT

A. McMorrow’s Motions for Summary Judgment

McMorrow asserts three bases for summary judgment: (1) qualified immunity;

(2) damages; and (3) statute of limitations. The Court addresses each in turn.

Qualified immunity

Bisetti’s amended complaint asserts claims against McMorrow for violations of

his Fourth Amendment rights in connection with his alleged false arrest and

wrongful institution of legal process (also referred to as malicious prosecution). Dkt.

68, at 6-7. McMorrow moves for summary judgment on these claims, arguing that his

conduct did not violate the Fourth Amendment in the first place, but, in any event,

qualified immunity shields him from liability for Bisetti’s claims because his conduct

did not violate clearly established statutory or constitutional rights of which a

reasonable officer would have known. Dkts. 32, at 13-18; 96, at 6-24.

“A qualified immunity defense alters the usual summary judgment burden of

proof.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). “Once an official pleads

the defense, 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.” Id. Even when considering a qualified

immunity defense, however, the Court must view the evidence in the light most

favorable to the nonmovant and draw all inferences in the nonmoving party’s favor.

Rosado v. Deters, 5 F.3d 119, 122-23 (5th Cir. 1993). It may not make credibility

determinations or weigh the evidence. Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 150 (2000). In the context of a pretrial motion, the applicable standard

of review limits the Court’s ability to conclusively determine whether an officer is

entitled to qualified immunity. See Tolan v. Cotton, 572 U.S. 650, 656 (2014) (holding

that at summary judgment, a court cannot resolve fact disputes pertaining to either

prong of qualified immunity in favor of the moving party).

“Whether an official’s conduct was objectively reasonable [in light of the law

that was clearly established at the time of the disputed action] is a question of law

for the court, not a matter of fact for the jury.” Brown, 623 F.3d at 253. But “in certain

circumstances where ‘there remain disputed issues of material fact relative to

immunity, the jury, properly instructed, may decide the question.’” Mesa v. Prejean,

543 F.3d 264, 269 (5th Cir. 2008) (quoting Presley v. City of Benbrook, 4 F.3d 405, 410

(5th Cir. 1993)); McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000). As explained

below, fact questions surrounding Bisetti’s arrest preclude McMorrow’s summary

judgment motion here.

The qualified-immunity framework

The doctrine of qualified immunity protects public officials from suit and

liability for damages under § 1983 unless their conduct violates a clearly established

constitutional right. Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003). Thus,

in determining qualified immunity, courts engage in a two-step analysis: (1) was a

statutory or constitutional right violated on the facts alleged; and (2) did the officer’s

actions violate clearly established statutory or constitutional rights of which a

reasonable person would have known? Id. at 623-24. The two steps of the qualified

immunity inquiry may be performed in any order. Pearson v. Callahan, 555 U.S. 223,

236 (2009). Because the Fifth Circuit has already concluded “that the Fourth

Amendment is the appropriate constitutional basis for [a] claim that [a plaintiff] was

wrongfully arrested due to the knowing or reckless misstatements and omissions in

[a defendant officer’s] affidavits,”1 the Court will focus its inquiry on the second step.

“A clearly established right is one that is sufficiently clear that every

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

Mullenix v. Luna, 577 U.S. 7, 11 (2015) (internal quotation mark omitted). This rule

1 Winfrey v. Rogers, 901 F.3d 483, 492 (5th Cir. 2018).

“do[es] not require a case directly on point, but existing precedent must have placed

the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S.

731, 741 (2011). “Qualified immunity gives government officials breathing room to

make reasonable but mistaken judgments about open legal questions.” Id. at 743. It

likewise “shields an officer from suit when [the officer] makes a decision that, even if

constitutionally deficient, reasonably misapprehends the law governing the

circumstances [the officer] confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004);

see also Saucier v. Katz, 533 U.S. 194, 205 (2001) (“The concern of the immunity

inquiry is to acknowledge that reasonable mistakes can be made as to the legal

constraints on particular police conduct.”). Thus, qualified immunity protects “all but

the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,

475 U.S. 335, 341 (1986). “Only where the warrant application is so lacking in indicia

of probable cause as to render official belief in its existence unreasonable, will the

shield of immunity be lost.” Id. at 344-45.

An officer “cannot be said to have violated a clearly established right unless

the right’s contours were sufficiently definite that any reasonable official in the

defendant’s shoes would have understood that he was violating it.” Plumhoff v.

Rickard, 572 U.S. 765, 778-79 (2014). “If officers of reasonable competence could

disagree as to whether the plaintiff’s rights were violated, the officer’s qualified

immunity remains intact.” Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005).

“Because the focus is on whether the officer had fair notice that [his] conduct was

unlawful, reasonableness is judged against the backdrop of the law at the time of the

conduct.” Brosseau, 543 U.S. at 198. “Clearly established law is determined by

controlling authority—or a robust consensus of persuasive authority—that defines

the contours of the right in question with a high degree of particularity.” Clarkston v.

White, 943 F.3d 988, 993 (5th Cir. 2019).

The Supreme Court has cautioned courts “not to define clearly established law

at a high level of generality.” al-Kidd, 563 U.S. at 742. The dispositive question is

“whether the violative nature of particular conduct is clearly established.” Id.

(emphasis added). This inquiry “must be undertaken in light of the specific context of

the case, not as a broad general proposition.” Brosseau, 543 U.S. at 198 (internal

quotation marks omitted). “Such specificity is especially important in the Fourth

Amendment context, where the Court has recognized that it is sometimes difficult for

an officer to determine how the relevant legal doctrine … will apply to the factual

situation the officer confronts.” Mullenix, 577 U.S. at 12 (cleaned up). The conclusion

that a violation occurred must “follow immediately” from the clearly established

principle. Anderson v. Creighton, 483 U.S. 635, 641 (1987). “The plaintiff has the

burden to point out clearly established law.” Tucker v. City of Shreveport, 998 F.3d

165, 173 (5th Cir. 2021).

When evaluating a qualified immunity defense, courts “consider only the facts

that were knowable to the defendant officers.” White v. Pauly, 137 S. Ct. 548, 550

(2017) (per curiam); see also Cole v. Carson, 935 F.3d 444, 456 (5th Cir. 2019) (en

banc) (“[W]e consider only what the officers knew at the time of their challenged

conduct.”). “Facts [that] an officer learns after the incident ends—whether those facts

would support granting immunity or denying it—are not relevant.” Hernandez v.

Mesa, 137 S. Ct. 2003, 2007 (2017) (per curiam); Brown, 623 F.3d at 253 (“An official’s

actions must be judged in light of the circumstances that confronted him, without the

benefit of hindsight.”). Moreover, the officer’s “subjective beliefs about the [action] are

irrelevant.” Anderson, 483 U.S. at 641. The relevant inquiry at this point is “the

objective (albeit fact-specific) question whether a reasonable officer could have

believed [McMorrow’s actions] to be lawful, in light of clearly established law and the

information [McMorrow] possessed.” Id. And “even if [McMorrow] felt that probable

cause was lacking, an objective standard would still be applicable.” United States v.

Clark, 559 F.2d 420, 425 (5th Cir. 1977)

The clearly established law applicable to Bisetti’s Fourth

Amendment claims against McMorrow

At issue here is the Fourth Amendment’s requirement that “no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation.” U.S. Const.

amend. IV. “A warrantless arrest must be based on ‘probable cause.’” Deville v.

Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). “Probable cause exists if the facts and

circumstances known to the officer warrant a prudent man in believing that the

offense has been committed.” Henry v. United States, 361 U.S. 98, 102 (1959). An

arrest made without probable cause—i.e., a false arrest—violates this constitutional

right. Deville, 567 F.3d at 166 (“There is no doubt that it was clearly established in

August 2005 that an arrest is unlawful unless it is supported by probable cause.”

(cleaned up)). Likewise, although there is no “freestanding constitutional right to be

free from malicious prosecution,” “[t]he initiation of criminal charges without

probable cause may set in force events that run afoul of explicit constitutional

protection—the Fourth Amendment if the accused is seized and arrested, for

example.” Castellano v. Fragozo, 352 F.3d 939, 945, 953 (5th Cir. 2003) (en banc).

Probable cause requires only “a probability or substantial chance of criminal

activity, not an actual showing of such activity.” Illinois v. Gates, 462 U.S. 213, 243

n.13 (1983). Probable cause is a “practical and common-sensical standard.” Florida v.

Harris, 568 U.S. 237, 244 (2013). It looks to the “totality of the circumstances” to

determine whether the magistrate with “the facts available to [him] would ‘warrant

a [person] of reasonable caution in the belief’” to find that the suspect committed the

crime for which he is being arrested. Id. at 243. “If there was probable cause for any

of the charges made ... then the arrest was supported by probable cause, and the claim

for false arrest fails.” Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995). “An officer may

conduct a warrantless arrest based on probable cause that an individual has

committed even a minor offense, including misdemeanors.” Deville, 567 F.3d at 165

(citing Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001)).

But as the Fifth Circuit recognized in Winfrey:

Since Franks v. Delaware, 438 U.S. 154 (1978), it has also been clearly

established that a criminal defendant’s Fourth Amendment rights are

violated if (1) the affiant, in support of the warrant, includes “a false

statement knowingly and intentionally, or with reckless disregard for

the truth” and (2) “the allegedly false statement is necessary to the

finding of probable cause.” Id. at 155-56, 98 S.Ct. 2674. In Franks, the

Supreme Court observed that the warrant requirement is meant “to

allow the magistrate to make an independent evaluation of the matter.”

Id. at 165, 98 S.Ct. 2674. It requires affiants to “set forth particular facts

and circumstances underlying the existence of probable cause,”

including those that concern the reliability of the information and the

credibility of the source to avoid “deliberately or reckless false

statement[s].” Id.

901 F.3d at 494. Thus, there are two prongs the plaintiff must prove to establish a

Franks violation.

First, the plaintiff “must present evidence that [the officer], through material

omissions or otherwise, made ‘a false statement knowingly and intentionally, or with

reckless disregard for the truth.’” Id. (quoting Franks, 438 U.S. at 155). “[N]egligence

alone will not defeat qualified immunity.” Brewer v. Hayne, 860 F.3d 819, 825 (5th

Cir. 2017). “[A] proven misstatement can vitiate an affidavit only if it is established

that the misstatement was the product ‘of deliberate falsehood or of reckless

disregard for the truth.’” United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980)

(quoting Franks, 438 U.S. at 171). Recklessness requires proof that the defendant “‘in

fact entertained serious doubts as to the truth’ of the statement.” Hart v. O’Brien, 127

F.3d 424, 449 (5th Cir. 1997) (quoting St. Amant v. Thompson, 390 U.S. 727, 731

(1968)), abrogation on other grounds recognized by Spivey v. Robertson, 197 F.3d 772,

775 (5th Cir. 1999).

Second, the Court must resolve whether “the allegedly false statement is

necessary to the finding of probable cause.” Franks, 438 U.S. at 156. To make this

determination, Franks requires the Court to consider a hypothetical “corrected

affidavit” in which the alleged errors were removed and omissions replaced. The

Court examines the corrected affidavit to determine “whether probable cause for the

issuance of the warrant survives the deleted false statements and material

omissions.” Winfrey, 901 F.3d at 495 (citing Franks, 438 U.S. at 156); see also, e.g.,

United States v. Bankston, 182 F.3d 296, 305-06 (5th Cir. 1999) (using a corrected

affidavit that “contain[ed] the allegedly exculpatory conversation” to determine

whether that affidavit would establish probable cause to authorize electronic

surveillance)), overruled on other grounds by Cleveland v. United States, 531 U.S. 12

(2000). The warrant will be valid only if the corrected affidavit establishes probable

cause for the complained-of arrest.

Application of the clearly established law to the specific

context of this case

McMorrow’s affidavit, provided the same day as Bisetti’s arrest, begins by

stating that he had good reason to believe and did believe that Bisetti committed the

offense of “ASSAULT WITH INJURY – Family Violence.” Dkt. 85-3, at 3. He then

states that this was based on his belief that “On March l0, 2018 at approximately

4:45 AM, an assault was committed against Guvenc, Begum, by Bisetti, Fabrizio.” Id.

In the narrative that follows, McMorrow describes his initial contact with Bisetti and

his wife Guvenc after Bisetti had called expressing his concern that something had

happened to her, and that he thought she was at a friend’s (Christopher Aguero)

apartment because he saw her car there. Id. McMorrow explains he and Bisetti

knocked on Aguero’s door; Aguero told them she had “drank too much” and “passed

out” there; that Aguero woke her; and that “she did appear to be extremely intoxicated

with red, bloodshot, watery eyes, slurred speech, an odor of a metabolized alcoholic

beverage emitting from her breath and appearing to be very unsteady on her feet.”

Id. McMorrow states Bisetti then took her home. Id.

McMorrow then describes his next encounter with Bisetti and Guvenc, in

response to a subsequent call from their residence, which led to Bisetti’s arrest:

When we made contact again on the present call, Bisetti informed me

that his wife has been getting increasingly angry as the night progressed

over the fact that he called 911 earlier. She was worried that this was

going to affect her custody of the children in a possible upcoming divorce,

due to the fact that she got drunk and passed out and therefore never

picked up the children from day care as planned. Bisetti stated that she

has been arguing with him about this since we last saw them, growing

increasingly irate. He stated that at one point she grabbed her phone

and threatened to call her mother to tell her what he had done. Bisetti

believed that this would be an unnecessary embarrassment and would

be better left between just them to handle. He stated that he took the

phone from her hands and attempted to hold it out of her reach. He

stated that he realized that this was getting out of hand and eventually

put the phone down, left the house, and took a walk to get some air.

When he returned home a little while later the doors were locked and he

could hear her on the phone calling 911. He was still waiting outside

when we arrived.

I then spoke to Guvenc who told me a very similar story. However, she

stated that at one point when attempting to keep her phone from her,

he struck her on her right cheek using the back of his closed fist causing

her pain. There was some minor redness to the right cheek area. She

alleged no other injuries, assaults, or threats. Their three children, 1 boy

9 y/o, 1 boy 7 y/o, and one girl, 4 y/o, were home, but asleep upstairs and

not present for the incident.

Id.

The elements for the offense of assault involving family violence requires proof

that the defendant intentionally, knowingly, or recklessly caused bodily injury to a

person with whom the defendant had a relationship. Tex. Penal Code § 22.01(a)(1).

“Bodily injury” means physical pain, illness, or any impairment of physical condition.

Id., § 1.07(a)(8). The Court concludes that probable cause for this crime is established

on the face of this affidavit.

But that does not end the Court’s inquiry. Bisetti contends that McMorrow’s

affidavit misled the magistrate to conclude that probable cause existed. Therefore,

pursuant to Franks, the Court must determine whether McMorrow’s probable cause

affidavit: (1) contained material omissions or false statements made knowingly and

intentionally or with reckless disregard for the truth; and (2) if corrected to tell the

whole story, would establish probable cause existed for Bisetti’s arrest. Bisetti argues

that McMorrow’s affidavit fails both prongs.

Bisetti contends McMorrow’s affidavit contains two affirmatively false

statements: (1) that McMorrow believed that Bisetti committed the offense of assault

with injury – family violence; and (2) that he believed Bisetti assaulted Guvenc. See

Dkt. 97, at 6. To demonstrate the alleged falsity of these statements, Bisetti relies on

McMorrow’s subsequent deposition and court testimony that he “did not believe

Guvenc’s story, and only arrested Bisetti due to the APD policy requiring him to do

so,” id. (citing Dkt. 90-9, at 49), and points to his testimony that “‘[O]verall, I didn’t

find her [Guvenc] to be a credible person, and I thought that the information that she

was giving me could be in response to’ Bisetti’s earlier 911 call,” id. (quoting Dkt. 90-

9, at 50). Bisetti goes on to enumerate the following alleged material omissions:

1. That McMorrow believed Guvenc had concocted the allegation of

assault as a “tit for tat” allegation in her plan to challenge custody

of the couple’s children;

2. That Guvenc appeared to McMorrow not to be a credible witness;

3. That Bisetti appeared to McMorrow to be a credible witness

whose demeanor conflicted with Guvenc’s claims;

4. That Guvenc struck herself in the face and pressed the bag of peas

on it which caused “slight redness” eventually observed on her

cheek;

5. That McMorrow did not observe any redness or injury on

Guvenc’s face until after she had been striking herself and

pressing her face with frozen peas;

6. That Guvenc pressing on her cheek (where she alleged she was

hit) did not appear to McMorrow to cause Guvenc pain;

7. That McMorrow had just left the couple from the prior 911 call 82

minutes earlier;

8. That Guvenc lied about her intoxication during McMorrow’s

response to the earlier 911 call, instead claiming she had food

poisoning;

9. That McMorrow was only making an arrest due to the

unconstitutional APD policy; and,

10. That McMorrow did not see any evidence that Bisetti had

assaulted Guvenc and McMorrow did not believe an assault

occurred.

Id. at 6-7.

Under the first prong of the Franks analysis, the Court must determine

whether under clearly established law, applied to the specific context of this case,

McMorrow’s affidavit was false or made with reckless disregard for the truth. Under

the Fifth Circuit’s decision in Hart, that determination here turns on whether

McMorrow “in fact entertained serious doubts as to the truth of the statement.” 127

F.3d at 449. The Court concludes that McMorrow’s testimony alone is at least some

evidence that he did indeed harbor serious doubts about the probable cause to arrest

Bisetti—enough, at least, to survive summary judgment.2 See, e.g., Melton v. Phillips,

2 McMorrow moved to strike various statements from a declaration Bisetti’s expert, Jeff

Noble, which Bisetti cited in his summary judgment response. Dkt. 99. Because that evidence

837 F.3d 502, 509 (5th Cir. 2016), overturned on reh’g en banc on other grounds, 875

F.3d 256 (5th Cir. 2017) (“Whether a defendant in fact entertained serious doubts as

to the truth is necessarily a fact question.”); see also, e.g., Winfrey, 901 F.3d at 494

(reversing and remaining after finding a fact issue on the first Franks prong).

The Court likewise concludes that Bisetti has successfully created a fact issue

with respect to the second Franks prong. Even after setting aside the objected-to

evidence from Bisetti’s expert, the Court cannot conclude as a matter of law that if

the omissions identified by Bisetti were included in McMorrow’s affidavit, that a

reasonable magistrate would have found probable cause for Bisetti’s arrest. Bisetti’s

evidence at least creates an issue of material fact on this issue as well.

Finally, McMorrow contends that even if the affidavit did not show probable

cause for assault involving family violence, it still shows probable cause for assault

by offensive contact. Dkt. 96, at 22. But the same fact issues regarding his serious

doubts as to the truth of the allegations are present regardless of the nature of the

assault charged. Accordingly, the Court denies McMorrow’s motion for summary

judgment on the basis of qualified immunity.

Damages

As his second basis for summary judgment, McMorrow argues that Bisetti

cannot demonstrate that McMorrow’s alleged wrongdoing proximately caused the

damages Bisetti seeks. Dkt. 32, at 18-20. In particular, McMorrow argues that Bisetti

has no evidence (1) that McMorrow’s alleged wrongdoing was the cause-in-fact of

did not factor into the Court’s conclusion here, the Court dismisses McMorrow’s motion as

moot.

Guvenc’s fleeing the country with their children; and (2) that McMorrow acted with

the intent necessary to allow punitive damages.

Proximate cause

To show a lack of evidence of proximate cause, McMorrow notes that Bisetti

admitted (1) that neither he nor Guvenc told McMorrow of any concerns about her

leaving the country with the children, Dkt. 32, at 19 (citing Dkt. 32-6, at 12); (2) that

prior to the incidents giving rise to this case, Guvenc had never mentioned fleeing the

country, id. (citing Dkt. 32-6, at 9); (3) that while Guvenc discussed custody issues,

she never mentioned going back to Turkey with the children, and that the thought

did not occur to him the night of the incident, id. (citing Dkt. 32-6, at 10); (4) that

Bisetti himself thought it was completely unforeseeable that Guvenc would leave the

country with the children, id. (citing Dkt. 32-6, at 10); and (5) that her act of taking

the children out of the country was an intentional act, id. (citing Dkt. 32-6, at 13, 14).

Pointing to this evidence, McMorrow argues that Guvenc’s fleeing to Turkey with

their children was an intentional, superseding act that broke the causal chain, and

that, in any event, her fleeing, and the subsequent damages Bisetti incurred in

attempting to regain custody of the children, could not have been foreseeable to

McMorrow as a possible result of his alleged wrongdoing. Id.

At the outset, Bisetti responds that “[g]enerally, ‘issues of proximate causation

and superseding cause involve application of law to fact, which is left to the fact

finder.’” Dkt. 97, at 24 (quoting Exxon Co. v. Sofec, 517 U.S. 830, 840-41 (1996)).

Arguing that Guvenc’s fleeing with the children was foreseeable to McMorrow, Bisetti

points to her repeated references the couple’s impending custody dispute;

McMorrow’s admission that the custody dispute was at the heart of the couple’s

disagreement; and McMorrow’s admission that it is foreseeable that one parent will

lose custody of children when there is a custody dispute. Id. at 25 (citing Dkts. 90-10;

90-9, at 51, 68). Bisetti also cites Texas case law demonstrating that parents can lose

custody of their children after an arrest. Id. at 25-26 (collecting cases). Based on this

Bisetti contends that a jury could conclude that the general character of the injury

Bisetti suffered—i.e., losing custody of his children as a result of his arrest—was

foreseeable, and thus summary judgment is not appropriate on this point. Id. at 26.

As for McMorrow’s argument that Guvenc’s criminal act of kidnapping was a

superseding cause, Bisetti notes that there is at least a fact question regarding

whether her criminal act was foreseeable. Id. at 26-27. Bisetti closes by noting that

McMorrow’s motion only attacks the damages Bisetti seeks in connection with

regaining custody of his children, but that Bisetti also seeks mental anguish

damages, attorneys’ fees incurred in his criminal defense, and other consequential

damages that are not related to Guvenc’s fleeing with their children. Id. at 27.

The Court agrees with Bisetti that a fact question exists regarding the

foreseeability of Guvenc’s actions following his arrest, and that their criminal

character is not a superseding cause as a matter of law. While Bisetti’s evidence of

foreseeability may not ultimately carry the day at trial, the Court concludes that

Bisetti has met his burden to demonstrate a material issue of fact on this point.

Punitive damages

Punitive damages are available in a § 1983 case “when the defendant’s conduct

is shown to be motivated by evil motive or intent, or when it involves reckless or

callous indifference to the federally protected rights of others.” Smith v. Wade, 461

U.S. 30, 56 (1983). McMorrow argues that Bisetti has no evidence of such an intent.

Dkt. 32, at 20. McMorrow points to his own testimony that he did not dislike Bisetti,

or want to punish him, and he cites testimony from Bisetti himself stating he did not

believe McMorrow bore any ill will toward him and did not believe McMorrow

arrested him out of spite. Id. (citing Dkt. 32-6, at 17-20). Rather than respond with

specific evidence creating a fact issue on this point, Bisetti directs the Court to his

previous arguments and mentions McMorrow’s alleged admission that he did not

believe that an assault occurred and that he had no evidence of an assault. Dkt. 97,

at 27.

Having concluded that there is a fact issue regarding whether McMorrow’s

conduct amounted to a “reckless disregard” for the truth, supra Part III.A.1.c, the

Court likewise concludes that a jury could reasonably conclude that McMorrow’s

conduct satisfies the standard for punitive damages as articulated in Smith. See

Brown v. Byer, 870 F.2d 975, 982 (5th Cir. 1989) (upholding punitive damages jury

award in § 1983 case involving alleged false probable cause affidavit).

Statute of limitations

Finally, McMorrow argues that a two-year statute of limitations bars Bisetti’s

claim for malicious prosecution. Dkt. 96, at 3-6. McMorrow contends that Bisetti’s

claim accrued on August 29, 2018, the date the criminal charges against him were

dismissed; that Bisetti therefore had to assert his malicious prosecution claim by

August 29, 2020; and that his October 2021 amended complaint, which McMorrow

contends is the first time Bisetti asserted this claim, was untimely. Dkt. 96, at 4. The

parties do not dispute when Bisetti’s claim accrued or that Texas’s two-year statute

of limitations for general personal injury claims applies here. But the parties do

dispute when Bisetti first asserted his malicious prosecution claim and the extent to

which, if necessary, the allegations in the amended complaint relate back to his

original complaint.

While the Court does not fault McMorrow for raising this as a ground for

summary judgment, the undersigned nonetheless agrees with Bisetti that this issue

has already been ruled upon, and none of the arguments raised by McMorrow here

leads the Court to reach a different conclusion than before. The crux of McMorrow’s

position is that Bisetti did not allege the facts underlying his malicious prosecution

claim until his amended complaint. Dkt. 96, at 3-4. But as the Court previously

concluded, this argument fails to address “the portions of Bisetti’s complaint that

specifically allege that McMorrow’s arrest led Bisetti to be ‘unjustly imprisoned for

five days’ and that as a result of his malicious prosecution, Bisetti ‘had to hire

multiple lawyers, including criminal defense attorneys.’” Dkt. 67, at 3 (quoting Dkt.

1, at 4-5). The Court further observed that “Bisetti pleaded facts in support of his

unlawful-detention and prosecution claims in his original complaint and continued to

rely on those allegations during discovery” and that rather than asserting a new

claim, Bisetti’s amendment simply “serve[d] to clarify the extent of his claims for

relief.” Id. at 5. For all of these reasons, the Court found that the Bisetti’s original

complaint put the Defendants on notice of his malicious prosecution claim. Id. at 4-6.

The Court disagrees with McMorrow’s characterization of Bisetti’s pleading as

a “tactical choice” to omit his malicious prosecution claim. To the contrary, as noted

above, Bisetti has asserted this claim all along. The undersigned granted Bisetti leave

to amend his pleading out of an abundance of caution to allow Bisetti to clarify his

malicious prosecution claim, but it does not necessarily follow, as McMorrow argues,

that Bisetti’s original complaint omitted the claim altogether or failed to give

McMorrow notice of it. The amendment the Court authorized is just the sort that the

Rules explicitly contemplate as relating back to the original complaint: “An

amendment to a pleading relates back to the date of the original pleading when …

the amendment asserts a claim or defense that arose out of the conduct, transaction,

or occurrence set out—or attempted to be set out—in the original pleading.” Fed. R.

Civ. P. 15(c)(2); see also McClellon v. Lone Star Gas Co., 66 F.3d 98, 102 (5th Cir.

1995) (“Amendments that … serve to expand the facts alleged in the original pleading

satisfy the relation back requirements of rule 15(c).”).

Moreover, as discussed above, and in the Court’s order on the motion for leave

to amend, the Fifth Circuit has recognized that “there is no freestanding [federal]

constitutional right to be free from malicious prosecution,” Winfrey, 901 F.3d at 491,

and thus McMorrow is incorrect that this component of Bisetti’s Fourth Amendment

claim had to be asserted as a separate cause of action. Dkt. 67, at 3 n.1. And even if,

as McMorrow argues in his reply, malicious prosecution is a stand-alone cause of

action, the Court concludes that the relation-back principles discussed above still

save Bisetti from summary judgment on this point.

B. The City’s Motion for Summary Judgment

The City challenges the following claims on summary judgment: (1) alleged

Fourth Amendment violation by McMorrow; (2) the constitutionality of APD Policy

418; (3) inadequate training claims; (4) inadequate supervision and discipline claims;

(5) ratification claim; and (6) damages. Dkt. 85. The Court addresses each in turn.

McMorrow’s Alleged Fourth Amendment Violations

The City begins by arguing that, for the reasons asserted in McMorrow’s

motion for summary judgment, McMorrow’s conduct did not violate the Fourth

Amendment, and, therefore, the City should not be held liable. Dkt. 85, at 6. Because

the Court has concluded that fact questions preclude summary judgment in

McMorrow’s favor on Bisetti’s Fourth Amendment claims, the Court likewise does not

grant the City summary judgment on this basis.

Constitutionality of APD Policy 418

Bisetti claims that the City, “acting through its policymakers, including Chief

Manley, had a policy, practice, or custom requiring officers to arrest and institute

legal process against someone when a complaint of domestic violence is made – even

if there was no probable cause for an arrest,” in violation of the Fourth Amendment.

Dkt. 68, at 7. Bisetti contends that APD Policy 418 is unconstitutional on its face, and

even if the policy itself were facially constitutional, it was implemented with

deliberate indifference to his constitutional rights—i.e., a Monell3 claim.

To prevail on his Monell claim, Bisetti must show that “(1) an official policy

and (2) promulgated by the municipal policymaker (3) was the moving force behind

the violation of a constitutional right.” Pena v. City of Rio Grande City, 879 F.3d 613,

621 (5th Cir. 2018). “Monell plaintiffs [must] establish both the causal link (‘moving

force’) and the City’s degree of culpability (‘deliberate indifference’ to federally

protected rights).” Snyder v. Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998) (citing Bd.

of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997)); see also id.

(observing that “where a court fails to adhere to rigorous requirements of culpability

and causation, municipal liability collapses into respondeat superior liability”). “In

short, a plaintiff must identify the policy, connect the policy to the governmental

entity itself, demonstrate deliberate indifference on the part of the policymaker in

promulgating the policy, and show that his injury was incurred because of the

application of that specific policy.” Cole v. Hunter, 497 F. Supp. 3d 172, 184 (N.D. Tex.

2020) (citing Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984)).

The Court first addresses Bisetti’s argument that APD Policy 418 is

unconstitutional on its face. See Burge v. St. Tammany Par., 336 F.3d 363, 370 (5th

Cir. 2003) (“Where an official policy or practice is unconstitutional on its face, it

necessarily follows that a policymaker was not only aware of the specific policy, but

3 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).

was also aware that a constitutional violation will most likely occur.”). The pertinent

portion of APD Policy 418 states:

418.2 ENFORCEMENT GUIDELINES

The primary duties of an officer who investigates a family violence allegation,

or who responds to a disturbance call that may involve family violence, are to

protect any potential victim of family violence and enforce the law by making

lawful arrests of violators.

***

418.2.1 ARREST REQUIREMENT FOR ASSAULTIVE OFFENSES

(a) Officers are required to make an arrest for incidents involving family

violence when:

1. An assault has occurred that resulted in a minimum of bodily

injury or complaint of pain; or where an officer can articulate facts

from which a reasonable person could infer that the victim would

have felt pain due to:

(a) The manner in which the suspect made contact with the

victim, or

(b) the nature of observable physical marks on the suspect’s

body allegedly caused by the suspect’s contact with the

victim.

2. The suspect is still on-scene; and

3. The assault meets the definition of “family violence” or “dating

violence.”

Dkt. 85-6, at 3.

The City argues that, contrary to Bisetti’s claim, this language does not

mandate an arrest in the absence of probable cause, noting that the plain language

of the policy only requires an arrest when an assault has occurred or a reasonable

person could infer that an assault had occurred. Dkt. 85, at 7; Dkt. 109, at 2. Bisetti

contends that APD Policy 418, on its face, requires officers to arrest an individual

accused of domestic violence, irrespective of whether there is probable cause for the

crime, Dkt. 104, at 3-6. In support of this argument, Bisetti points to McMorrow’s

family-court testimony that “‘APD policy is stricter [than Texas law] and states that

we shall make an arrest … whenever there is an accusation of family-violence

assault.’” Id. at 3 (quoting Dkt. 104, at 524 (trial testimony)); see also id. at 152 (pre-

trial testimony)).

The Court agrees with the City. McMorrow’s interpretation of the meaning of

the language used in APD Policy 418 has no bearing on whether the policy is facially

constitutional. On its face, the policy only requires an arrest if the officer determines

that an assault has occurred or the officer can articulate facts from which a

reasonable person could infer that an assault had occurred. Under either scenario,

probable cause exists. Carroll v. Ellington, 800 F.3d 154, 172 (5th Cir. 2015)

(“Probable cause exists when the totality of facts and circumstances within a police

officer’s knowledge at the moment of arrest are sufficient for a reasonable person to

conclude that the suspect had committed or was committing an offense.” (quotation

4 The Court notes that Bisetti filed his summary judgment response, along with almost all of

its 187 exhibits, as a single, 993-page document (not to mention the sealed, unredacted brief

and exhibits, which amounted to hundreds more undifferentiated pages). This,

unsurprisingly, made navigating Bisetti’s summary-judgment record cumbersome and labor-

intensive. The Western District’s Administrative Policies and Procedures for Electronic

Filing in Civil and Criminal Cases, available on the District’s website, states in Section 9(d)

that “All documents other than the main document, such as an appendix, exhibit, affidavit,

or a supplement, must be submitted as separate PDF documents. Each such document must

be given a description that corresponds to the name used in the main document. For example,

if the main document refers to ‘Exhibit A [Smith Declaration],’ the Category must be ‘Exhibit’

and the Description must be ‘A – Smith Declaration.’” This rule ensures that the Court and

its staff can easily access records, especially large records like the one here—a worthwhile

end that benefits the parties and the Court alike. Future noncompliant filings will be struck

with instructions to re-file in accordance with the Rules.

marks omitted)). Bisetti’s contention that the policy is facially defective because it

uses the phrase “can articulate facts,” rather than “spell[ing] out probable cause,”

Dkt. 104, at 15, does not lead the Court to a different conclusion. See, e.g., Salazar-

Limon v. City of Houston, 826 F.3d 272, 279 (5th Cir. 2016) (“[M]unicipalities are not

required to incorporate specific language from our case law, or that of the Supreme

Court[.]”). Likewise, the Court does not agree that the language of the policy requires

officers to ignore or omit facts that might undermine a probable cause finding, as

Bisetti contends, Dkt. 104, at 21-22. Accordingly, the Court concludes that APD Policy

418 is not facially unconstitutional.

Nonetheless, a facially constitutional statute may still run afoul of Monell if its

enforcement amounts to an official policy promulgated by the municipal policymaker

that “was the moving force behind the violation of a constitutional right.” Pena, 879

F.3d at 621. To prevail on his claim, Bisetti must show “deliberate indifference” on

the part of APD toward his constitutional rights, and causation, i.e., that his injury

(in this case, his false arrest and malicious prosecution) was incurred because of the

application of the specific policy. Cole, 497 F. Supp. 3d at 184. Having already

concluded that the language of the written policy itself does not require officers to

arrest defendants in the absence of probable cause, Bisetti may only prevail on this

claim if he can show that the City’s practice and custom was to enforce the written

policy in a way that required arrests irrespective of the presence of probable cause.5

5 The parties do not appear to dispute the question of whether the policy was promulgated by

the municipal policymaker. And, because Bisetti “claims that a particular municipal action

itself violates federal law, or directs an employee to do so, resolving … issues of fault and

causation is straightforward.” Bd. of Cnty. Comm’rs of Bryan Cnty., 520 U.S. at 404.

Monell, 436 U.S. at 694. But a custom that has not been formally adopted by the

appropriate decisionmaker will only subject the municipality to liability if it is a

“persistent and widespread practice.” Piotrowski v. City of Houston, 237 F.3d 567, 581

(5th Cir. 2001).

As the Fifth Circuit has observed, a pattern or custom amounts to official policy

when it is “so common and well-settled as to constitute a custom that fairly represents

municipal policy.” Id. at 579 (quoting Webster v. City of Houston, 735 F.2d 838, 841

(5th Cir. 1984) (en banc)). Where prior incidents are used to prove a pattern, they

“must have occurred for so long or so frequently that the course of conduct warrants

the attribution to the governing body of knowledge that the objectionable conduct is

the expected, accepted practice of city employees.” Webster, 735 F.2d at 842. The

plaintiff must demonstrate “a pattern of abuses that transcends the error made in a

single case.” Piotrowski, 237 F.3d at 582 (citations omitted). A pattern requires

similarity and specificity: “[p]rior indications cannot simply be for any and all ‘bad’ or

unwise acts, but rather must point to the specific violation in question.” Estate of

Davis ex rel. McCully v. City of North Richland Hills, 406 F.3d 375, 383 (5th Cir.

2005).

A pattern also requires “sufficiently numerous prior incidents,” as opposed to

“isolated instances.” McConney v. City of Houston, 863 F.2d 1180, 1184 (5th Cir.

1989). “[O]ne act is not itself a custom.” Pineda v. City of Houston, 291 F.3d 325, 329

Accordingly, the Court’s focus here is on the first Monell element, i.e., whether the purported

no-probable-cause-arrest policy for domestic-violence disputes was indeed an official policy of

the City.

(5th Cir. 2002). In Pineda, the Fifth Circuit held that eleven incidents of warrantless

entry did not support a pattern of unconstitutional warrantless entry. Id. The court

observed that “[e]leven incidents each ultimately offering equivocal evidence of

compliance with the Fourth Amendment cannot support a pattern of illegality in one

of the Nation’s largest cities and police forces.” Id. (affirming summary judgment in

favor of municipality); see also Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 850

(5th Cir. 2009) (affirming summary judgment despite plaintiff’s reference to 27

separate complaints of excessive force during the relevant period).

In its motion for summary judgment, the City argues that testimony from

Chief Manley confirms that neither APD Policy 418 nor its application requires

officers to arrest individuals accused of domestic violence without probable cause.

Dkt. 85, at 8-10; Dkt. 85-7, at 100 (Chief Manley testifying that “our policy says, you

shall make the arrest if an assault occurred[;] the officer has to believe an assault

occurred”); see also id. at 33-35, 104, 188. In his response, Bisetti zeroes in on the

same McMorrow testimony he cited in support of his facial challenge, along with a

carefully excised line of testimony from APD Assistant Chief Scott Perry in which he

allegedly conceded that officers should ignore facts that might defeat a probable cause

determination.6 Dkt. 104, at 18-19. Bisetti also points to three incidents in which APD

officers were allegedly disciplined for declining to arrest individuals under the same

circumstances as Bisetti. Id.

6 Out of an abundance of caution, Bisetti filed this exhibit under seal and redacted any explicit

references to the exhibit in its brief. See Dkt. 104, at 4 n.11. The City, however, openly

referenced the testimony throughout its Reply Brief, see Dkt. 109, at 9, so the Court will do

the same here.

But even if McMorrow labored under a misimpression that he was required to

make an arrest in a domestic violence case, regardless of the presence of probable

cause, that alone does not create an issue of material fact regarding whether the APD

as a whole adhered to such a policy. Pineda, 291 F.3d at 329. As for Bisetti’s reference

to Assistant Chief Perry’s testimony, which Bisetti contends confirms McMorrow’s

understanding, the Court agrees with the City that Bisetti’s portrayal of this

testimony does not accurately reflect the totality of Perry’s testimony when viewed in

context. As the City points out, Perry stated multiple times during his deposition that

the policy language cited by Bisetti is used by officers to determine whether they have

probable cause to make an arrest, that the focus of this portion of the policy is on

potential evidence that may support probable cause, and that all arrests have to be

made with probable cause. Dkt. 104-2, at 115-17. Even when viewed in a light most

favorable to Bisetti, this testimony does not raise a fact issue regarding whether APD

had a policy, practice, or custom requiring officers to arrest, with or without probable

cause, individuals accused of domestic violence. Finally, even if it were true that three

APD officers were disciplined for not arresting individuals under circumstances

similar to Bisetti’s (which Perry contests, Dkt. 104-2, at 92-109), that coupled with

McMorrow’s and Perry’s testimony do not rise to the evidentiary level to raise a fact

question regarding a “persistent and widespread practice” of mandating arrests

irrespective of probable cause in domestic-violence cases. Piotrowski, 237 F.3d at 581.

Summary judgment for the City on this point, therefore, is appropriate.

Inadequate training

Bisetti claims that “according to Officer McMorrow, APD supervisors

instructed him and other APD officers they were to always make an arrest when a

complaint of domestic violence is made.” Dkt. 68, at 7. Bisetti’s amended complaint

does not set out additional facts underlying this failure-to-train claim, but essentially,

Bisetti alleges that the City failed to properly train its officers in the proper

application of APD Policy 418. The City moves for summary judgment on this claim,

arguing that Bisetti has no evidence to support his claim that APD’s training on its

domestic-violence-arrest policy is constitutionally inadequate. Dkt. 85, at 10-12.

“A municipality’s culpability for a deprivation of rights is at its most tenuous

where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61

(2011). To prevail on an inadequate-training claim, the plaintiff must allege with

specificity how a city’s training program is inadequate. Roberts v. City of Shreveport,

397 F.3d 287, 293 (5th Cir. 2005). The plaintiff must prove that: “(1) [the city’s]

training policy or procedures were inadequate; (2) [the city] was deliberately

indifferent in adopting its training policy; and (3) the inadequate training policy

directly caused [the plaintiff’s injury].” Sanders-Burns v. City of Plano, 594 F.3d 366,

381 (5th Cir. 2010).

Deliberate indifference may be shown in one of two ways. Kitchen v. Dallas

Cty., Tex., 759 F.3d 468, 484 (5th Cir. 2014). The first, and more common path,

involves proving that the city had notice of a pattern of prior violations which involved

events similar to what transpired when the plaintiff’s rights were allegedly violated.

Id. (citing Sanders-Burns, 594 F.3d at 381). Alternatively, the plaintiff can show,

based on a single-incident alone, that “in light of the duties assigned to specific

officers or employees, the need for more or different training is obvious, and the

inadequacy so likely to result in violations of constitutional rights, that the

policymakers of the city can reasonably be said to have been deliberately indifferent

to the need.” Sanders-Burns, 594 F.3d at 381 (quoting Estate of Davis, 406 F.3d at

386). This “single-incident” approach is “difficult, although not impossible,” for

plaintiffs to establish. Id. That is so is because it is not enough for a plaintiff to show

that additional training may have avoided the injury; the plaintiff, under either

approach, must prove that the training was so inadequate that it would pose a

“patently obvious risk of recurring constitutional violations.” Kitchen, 759 F.3d at

485.

In its motion, the City challenges the premise of Bisetti’s inadequate-training

claim by noting, among other things, that APD’s training exceeds the statewide

standards set for training new cadets and police officers. Dkt. 85, at 11-12; see Zarnow

v. City of Wichita Falls, Tex., 614 F.3d 161, 171 (5th Cir. 2010) (observing that

“compliance with state requirements [i]s a factor counseling against a ‘failure to train’

finding” (citing Conner v. Travis Cnty., 209 F.3d 794, 798 (5th Cir. 2000))). The City

also explains that the APD’s comprehensive training program includes training on

the domestic-violence-arrest policy, along with training on probable cause and how to

prepare a probable cause affidavit for all arrests and offenses. Dkt. 85, at 12 (citing

Dkt. 85-8 (declaration of APD’s Commander of Recruiting and Training Division)).

The City also refers to testimony from Chief Manley that APD’s training is consistent

with its written policies and that officers are expected to understand and follow the

policies. Dkt. 85, at 12 (citing Dkt. 85-7, at 40, 190).

Bisetti first responds that because APD Policy 418 is facially unconstitutional,

the training on the policy is also constitutionally deficient. Dkt. 104, at 24. The Court

has already rejected this challenge as applied to the policy itself, supra Part III.B.2,

and the argument is no more compelling in this context. Bisetti also points to

language in APD domestic-violence training materials stating that the “‘primary

duties of an officer who investigates a family violence allegation … are to protect any

potential victim … and enforce the law by making lawful arrests of violators.’” Dkt.

104, at 24 (quoting id. at 307); that “‘officers are required to make an arrest,’” Dkt.

104, at 24 (quoting id. at 316); and that “officers shall arrest [a person] for assault …

[even] if no physical violence has occurred but circumstances reasonably show further

violence is likely to happen,”7 Dkt. 104, at 24 (quoting id. at 318). Bisetti’s primary

complaint is that these statements in a training PowerPoint do not pepper references

to the standard for probable cause throughout. But as Bisetti himself concedes, the

presentation, in the context of whether to make multiple arrests, instructs officers to

arrest multiple people if “there is adequate and articulable probable cause to believe

that each person contributed to the violence.” Dkt. 104, at 317. This presentation

7 It is worth noting that for this particular quotation, Bisetti’s editing could leave the reader

with a mistaken impression that an arrest for assault is required without probable cause.

The full quote states “Officers shall arrest for assault by threat or assault by contact if no

physical violence has occurred but circumstances reasonably show further violence is likely

to happen.” Dkt. 104, at 318.

hardly supports Bisetti’s claim that the City’s training amounted to deliberate

indifference towards his rights—quite the opposite.

Bisetti next points to McMorrow’s testimony that “the training he received

from APD ‘caused [him] to understand that APD policy was stricter than the previous

policies [he] worked under,’” along with a quote from Chief Manley that the “heart”

of McMorrow’s issue was his misunderstanding of the policy and that he needed more

training on the issue. Dkt. 104, at 27 (quoting id. at 177, 104); see also id. (quoting

Dkt. 104-2, at 118 (McMorrow’s supervisor’s statement that the department “decided

that this was a training issue”)). These observations, however, do not raise a fact issue

on the City’s deliberate indifference when considered in the context of the training

materials presented to McMorrow, and the policy itself, both of which the Court has

already concluded pass Monell muster.

Finally, Bisetti responds that because McMorrow was a police officer whose

duties included responding to calls and making arrests, he was “the prototypical

‘employee[] [in] need [of] more or different training.’” Dkt. 104, at 28 (quoting Morris

v. Dallas Cnty., Tex., 960 F. Supp. 3d 665, 684 (N.D. Tex. 2013)). But McMorrow did

receive training, and he received training on the policy that formed the basis for the

arrest underlying Bisetti’s claim. Bisetti again asserts his false premise that the City

trained McMorrow to arrest individuals accused of domestic violence irrespective of

the presence of probable cause, but the Court has already rejected that argument.

Inadequate supervision and discipline

To prevail on his failure-to-supervise-or-discipline claim, Bisetti “must

(1) identify the individual supervisor who failed to train, supervise, or discipline and

(2) demonstrate that the supervisor had subjective knowledge that the police officer

posed a serious risk to cause harm.” Roque v. Harvel, No. 1:17-CV-932-LY, 2020 WL

6334800, at *9 (W.D. Tex. Mar. 23, 2020), aff’d, 993 F.3d 325 (5th Cir. 2021); see also,

e.g., Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252-53 (5th Cir. 2005), abrogated

on other grounds by Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015) (plaintiff

must demonstrate the supervisor(s) “had subjective knowledge of a serious risk of

harm to the victims”). As with the other Monell claims, a supervisor may be held

personally liable for inadequate supervision only where the failure to train or

supervise amounts to deliberate indifference and is a proximate cause of a

constitutional violation. See Porter v. Epps, 659 F.3d 440, 446-47 (5th Cir. 2011)

(applying deliberate-indifference standard to failure to promulgate policy, train, and

supervise claims); Gros v. City of Grand Prairie, Tex., 34 F. App’x. 150, at *6 (5th Cir.

2002) (per curiam) (requiring a plaintiff to prove deliberate indifference for hiring,

training, and supervision claims). A showing of even heightened negligence does not

suffice to demonstrate deliberate indifference. Brown, 520 U.S. at 407.

In response to the City’s motion, Bisetti points to an excerpt from McMorrow’s

field training record, in which his supervising officer indicated that McMorrow’s

handling of Bisetti’s arrest was a “‘Most Satisfactory Performance.’” Dkt. 104, at 25.

And Bisetti cites an email sent by McMorrow’s supervisor summarizing a 45-minute

follow-up meeting he had with McMorrow in which he discusses topics they

addressed. Id. at 26 (citing Dkt. 85-9, at 6). Bisetti notes that in the email, the

supervisor stated that “‘[o]nly credible evidence can be used to build probable cause.’”

Id. Finally, Bisetti argues that the City’s failure to discipline McMorrow after this

incident demonstrates its deliberate indifference towards Bisetti’s Fourth

Amendment rights.

None of this is evidence of deliberate indifference on the part of Bisetti’s

supervisor or APD as a whole. The evidence cited by Bisetti shows that APD and

Bisetti’s supervisors took actions to ensure that McMorrow was operating within the

law when carrying out a domestic-violence arrest. Bisetti’s insistence that APD and,

more specifically, his supervisors, instructed him to be deceptive is not borne out by

the record; at most, it demonstrates negligence on how his supervisors described the

probable cause standard. It does not, however, raise a material question of fact

regarding whether APD or McMorrow’s supervisors acted with deliberate indifference

to his rights.

Ratification

The City also moves for summary judgment on Bisetti’s ratification claim. Dkt.

85, at 14-16; see Dkt. 68, at 8 (Bisetti’s Amended Complaint, alleging that “the City

and APD Chief Manley have ratified McMorrow’s false arrest of and wrongful

institution of legal process against Bisetti, as McMorrow has not been disciplined,

counseled, or terminated despite knowingly arresting Bisetti despite the absence of

probable cause”). Bisetti does not directly address this argument in his response;

based on his amended complaint, though, it appears that he relies on the same facts

for his ratification claim that he cites in support of his inadequate training,

supervision, and discipline claims. For the same reasons stated above, the Court

concludes that summary judgment is appropriate as to this claim as well.

6. Damages

Having concluded that the City should prevail as a matter of law on the merits

of Bisetti’s claim, it is unnecessary for the Court to consider the damages argument

contained within the City’s motion.

IV. CONCLUSION

Based on the foregoing, the Court GRANTS the City of Austin’s motion for

summary judgment, Dkt. 85, and DENIES Defendant Brendan McMorrow’s motion

for summary judgment, Dkt. 32, and supplemental motion for summary judgment,

Dkt. 96. Finally, the Court DISMISSES McMorrow’s motion to strike, Dkt. 99, as

moot.

SIGNED September 30, 2022.

“DUSTINM.HOWELL —“—i—_COC~™S

UNITED STATES MAGISTRATGE JUDGE

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