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Washington v. Salazar

United States District Court, S.D. Texas, Houston Division

August 4, 2017

Craig Washington, Plaintiff,
v.
Jose Salazar, et al., Defendants.

          MEMORANDUM AND OPINION

          Stephen Wm Smith United States Magistrate Judge

         Before the Court is defendant Jose Salazar's second amended motion for summary judgment. Dkt. 118. A hearing on the motion was held June 19, 2017. The motion for summary judgment is denied in part and granted in part.

         Background

         Plaintiff Craig Washington brings this action under 42 U.S.C. § 1983, alleging that he was falsely arrested in February 2014 by Houston Police Department Sergeant Jose Salazar, in violation of rights guaranteed by the Second, Fourth, and Fourteenth Amendments of the U.S. Constitution.

         Washington was arrested near his home following an incident in which broken bottles were thrown onto his property from a nearby night club. Washington, who held a valid concealed handgun permit at the time, went outside to investigate, carrying his 12-gauge shotgun. He was subsequently arrested and charged with unlawfully carrying a handgun, a felony offense. Washington remained in jail overnight, and was released on bond the next morning. The charges were dismissed one month later due to insufficient evidence. His shotgun, which had been confiscated as evidence, was then returned to him.

         Defendant Salazar moves for summary judgment on the basis of qualified immunity.

         Legal Standards

         Summary judgment is proper if the movant establishes that there is no genuine issue about any material fact and the law entitles it to judgment. Fed.R.Civ.P. 56(c). Disputes are “genuine” if 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 (1986). A party moving for summary judgment “must demonstrate the absence of a genuine issue of material fact, but need not negate the elements of the nonmovant's case.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(internal citation omitted).

         In determining whether genuine issues of material fact exist, “factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists.” Lynch Propterties, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998). “A dispute regarding a material fact is ‘genuine' if the evidence would permit a reasonable jury to return a verdict in favor of the nonmoving party.” Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir.2004).

         Analysis

The doctrine of qualified immunity protects government officials performing discretionary functions in the realm of their official duties from liability as well as from suit. See Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994). This doctrine shields officials from civil liability “so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Mullenix v. Luna, 136 S.Ct. 305, 38 (2015). “Put simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

         “Where, as here, a section 1983 defendant pleads qualified immunity and shows he is a governmental official whose position involved the exercise of discretion, the plaintiff then has the burden ‘to rebut this defense by establishing that the official's allegedly wrongful conduct violated clearly established law.'” Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997)(internal citation omitted). It is undisputed that Sgt. Salazar was performing discretionary duties within the scope of his authority. Washington has the burden to show that Sgt. Salazar violated clearly established precedent.

         Second Amendment

         The Second Amendment right to keep and bear arms is fully applicable to the states by virtue of the Fourteenth Amendment. McDonald v. City of Chicago, 561 U.S. 742 (2010). However, the Supreme Court noted that Second Amendment rights are not unlimited. McDonald reiterated the core Second Amendment right described in District of Columbia v. Heller, 554 U.S. 570 (2008), holding that the Fourteenth Amendment incorporates the Second Amendment right to “possess a handgun in the home for purposes of self-defense.” 561 U.S. 742, 791 ...


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