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King v. City of Austin

United States District Court, W.D. Texas, Austin Division

May 1, 2018

BREAION KING Plaintiff,
v.
THE CITY OF AUSTIN, TEXAS, and OFFICER BRYAN RICHTER, Defendants.

          ORDER

          SAM SPARKS SENIOR UNITED STATES DISTRICT JUDGE

         BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Defendant Bryan Richter (Officer Richter)'s Motion to Exclude the Expert Testimony of Kevin Cokley [#36] and Plaintiff Breaion King's Response [#41] in opposition; Officer Richter's Motion for Summary Judgment and Supplement [#37, #38] and Plaintiffs Response and Supplement [#41, #45] in opposition; and the City of Austin (the City)'s Motion for Summary Judgment [#39], Plaintiffs Response [#44] in opposition, and the City's Reply [#46] thereto. Having reviewed the documents, the governing law, and the file as a whole, the Court now enters the following opinion and orders.

         Background

         As stated in a prior order, this case arises out of Plaintiff s allegations she was subjected > to excessive use of force and racial discrimination by Officer Richter of the Austin Police Department (APD) in the course of a routine traffic stop. Plaintiff claims Officer Richter and the City are liable to her under 42 U.S.C. § 1983 for violating her constitutional rights and under 42 U.S.C. § 1981 for violating her federal rights. Am. Comp. [#12] at 10.

         The facts recounted here are drawn from the summary judgment record, which includes video recordings of the traffic stop at issue and Officer Richter's prior uses of force. On summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party, but the Court "assign[s] greater weight, even at the summary judgment stage, to the facts evident from video recordings taken at the scene." Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011).

         I. Officer Richter's History

         After completing APD's training academy, Officer Richter became a full-time APD officer on April 22, 2010. City's Mot. Summ. J. [#39-2] Ex. B (Manley Aff) ¶ 12. As of December 2013, Officer Richter's supervisors perceived Officer Richter had a higher than normal rate of using force, receiving complaints, and conducting pursuits. Resp. City's Mot. Summ. J. [#44-6] Ex. F (Richter's Internal Affairs File) at 13-14. In response, one supervisor conducted an analysis of Officer Richter's use of force but concluded Officer Richter's rate of using force was in line with that of five of his peer officers who worked in the same area. Id. The same supervisor noted he had counseled Officer Richter several times on his tactical decisionmaking to avoid getting into hands-on situations. Id.

         To support her claims against the City, Plaintiff points to three incidents where Officer Richter used force that occurred prior to the traffic stop underlying this case. A brief overview of these incidents as captured on video provides context for this opinion.[1]

         In the most recent incident, on June 30, 2013, Officer Richter pulled over a male motorist and a female passenger for failing to turn on their headlights. See Resp. City's Mot. Summ. J. [#4410] Ex. J (June 30, 2013 Incident Video) at 1:30-18:25. Officer Richter asked the motorist to step out of the vehicle, frisked him, and then asked the motorist questions regarding his alcohol consumption. Id. Officer Richter then asked the motorist to perform a field sobriety test. Id. During the sobriety test, the motorist requested a lawyer and refused to continue. Id. The motorist began shouting at Officer Richter, and Officer Richter reached for him. Id. The motorist withdrew his arm from Officer Richter's grasp and Officer Richter responded by wrapping his arm around the motorist's neck and flipping both the motorist and himself to the ground. Id. Another officer ran out from a patrol vehicle to assist and the female passenger also exited her vehicle, videotaping the struggle with her cell phone. Id. Officer Richter commanded her to return to the vehicle, and while she was doing so, Officer Richter ran after her. Id. Officer Richter grabbed the female passenger by her arms, swept her legs out from under her, and dropped her to the pavement.[2] Id. The APD supervisor who reviewed the incident concluded Officer Richter's use of force was "within APD policy[;] there is a training opportunity that may be addressed, but the response can be termed objectively reasonable!" Resp. City's Mot. Summ. J. [#44-13] Ex. M (Prior Incident Reports) at 2.

         A little less than a year earlier, on August 19, 2012, Officer Richter responded to a call regarding individuals who had been fighting via his patrol vehicle. Resp. City's Mot. Summ. J. [#44-11] Ex. K (August 19, 2012 Incident Video) at 8:40-9:30. Once he arrived in the area, Officer Richter exited his vehicle and approached four individuals who were walking down the sidewalk. Officer Richter began handcuffing one of the individuals while a fellow officer arrested another. Id. Officer Richter then grabbed the individual he was arresting and threw him to the ground. Id. The video shows no indication the individual was resisting arrest. Id. An APD supervisor reviewed the incident and concluded Officer Richter's use offeree was "objectively reasonable and within policy." Prior Incident Reports at 6.

         Officer Richter was involved in another use of force incident on November 19, 2011. Resp. City's Mot. Summ. J. [#44-12] Ex. L (November 19, 2011 Incident) at 3:15-6:10. There, Officer Richter arrived on scene to support a fellow officer who had pulled over a motorist. Id. Without saying anything, the other officer and Officer Richter approached the vehicle, opened the vehicle's door, and grabbed the motorist. Id. Officer Richter told the motorist if he did not get out of the vehicle immediately, he would be tazed. Id. A third officer joined and the three officers pulled the motorist out of his vehicle and onto the ground. Id. Officer Richter tazed the motorist at least twice for failing to comply with orders to put his hands behind his back. Id. During both tazings, the motorist lay on the ground. Id. The APD supervisor who "read the report and supplement... found the force used to be objectively reasonable and within policy[.]" Prior Incident Reports at 7.

         Officer Richter did not receive any supplementary training or discipline concerning his use offeree before the traffic stop underlying this case. Resp. City's Mot. Summ. J. [#44-3] Ex. C (Richter Dep.) at 54:13-57:19.

         II. The Traffic Stop

         Plaintiff is a black woman who weighs approximately 120 pounds and is about five feet, five inches tall. On June 15, 2015, between 12:30 and 1:30 p.m., Plaintiff was driving north on I-35. It is undisputed Plaintiff was exceeding the speed limit by approximately fifteen miles per hour. Richter's Mot. Summ. J. [#37-5] Ex. D (King Dep.) at 16:22-24. Plaintiff observed Officer Richter's patrol car approach with his overhead lights engaged. See Id. at 16:25-17:22. Plaintiff claims she initially assumed Officer Richter was pursuing another vehicle, but pulled into a Wendy's parking lot when she realized he was pursuing her vehicle. Id. Plaintiff parked and exited her vehicle at least in part in an effort to get out of the ticket. Id.

         As Plaintiff was walking toward the restaurant, Officer Richter's patrol car pulled into the parking lot. Richter's Mot. Summ. J. [#37-2] Ex. A (Richter Dash Camera Video) at 1:21-24. Officer Richter excited his patrol car and directed Plaintiff three times to return to her vehicle. Id. at 1:30-40. Plaintiff eventually did so, returning to a seated position in her car with the driver's door open and her legs outside the car. Id. at 1:40-50. Officer Plaintiff then asked Plaintiff for her driver's license. Id. at 1:49-51. Plaintiff asked, "But I'm already stopped so technically can you stop me?" Id. at 1:59-2:04. In response, Officer Richter stated "Ma'am, you were about to go inside without a wallet, so I know you're only coming here because you know I was coming to pull you over." Id. at 2:05-09. Officer Richter continued, "I can absolutely stop you if you're already parked .... Take a seat back in your car please and close the door." Id. at 2:10-17. Officer Richter requested Plaintiff "put [her] feet back in the car so [he] could close the door." Id. at 2:18-20. Plaintiff asked Officer Richter, "Can you please hurry up?" Id. at 2:20-22.

         What happened next is unclear from Officer Richter's dash cam video. Id. at 2:22-33. The video shows Officer Richter reached into the Plaintiffs vehicle. Id. Audio from the video includes Plaintiff screaming "don't touch me" and "oh my God." Id. Officer Richter simultaneously shouted at Plaintiff to "stop resisting." Id. Officer Richter ordered Plaintiff to get out of the car and Plaintiff said "I'm getting out. Let me get out. Do not touch me." Id. at 2:33-38. Officer Richter again ordered Plaintiff to "get out of the car now" and the video shows Officer Richter hauled Plaintiff from her vehicle. Id. at 2:38-40. He swung Plaintiffs body around in the air so her legs collided with a truck two parking spaces over and subsequently slammed her to the ground. Id. at 2:40-2:44. Plaintiff landed facing the ground with one arm pinned underneath her body and the other arm in Officer Richter's grip. Id.

         Officer Richter then got on top of Plaintiff, pressing his elbow into her neck, and ordered her to put her hands behind her back. Id. at 2:44-2:48. The video shows the two individuals locked in a struggle. Id. at 2:48-3:00. Plaintiff claims she attempted to comply with Officer Richter's commands while still protecting herself from being smashed into the pavement. Resp. Richter's Mot. Summ. J. [#43] at 4. Officer Richter claims Plaintiff was resisting being handcuffed. Richter's Mot. Summ. J. [#37] at 3-$. At one point in the video, both Plaintiff and Officer Richter stood up and Officer Richter had Plaintiffs arms secured behind her back. Richter Dash Camera Video at 3:00-04. Officer Richter then attempted an unsuccessful leg sweep in an effort to drop Plaintiff back to the ground. Id. Next, he lifted Plaintiff up and slammed her back on to the ground, but Plaintiff was able to break her fall with one leg to some degree. Id. at 3:04-09. Plaintiff claims Officer Richter put her in a chokehold, but Officer Richter claims no chokehold was used. The two struggled until Officer Richter forced Plaintiff to lie flat on the ground and fastened handcuffs around Plaintiffs wrists. Id. at 3:09-48.

         Once Plaintiff was securely handcuffed, Officer Richter lifted Plaintiff from the ground by her handcuffed arms. Id. at 3:48-52. With Plaintiffs arms stretched backwards behind her head, Officer Richter steered Plaintiff to his patrol car and into the backseat. Id. at 3:52-4:20. Less than one minute passed between Officer Richter's first words to Plaintiff and Officer Richter's initial use of force. Id. at 1:30-2:22.

         As Officer Richter propelled Plaintiff to his patrol car, other APD officers arrived. Officer Richter told his fellow officers Plaintiff attempted to throw a "haymaker" at him and she had said "no" when he asked her to put her legs in her vehicle. Id. Resp. Richter's Mot. Summ. J. [#43] Ex. I. (Breckenridge Dash Camera Video) at 1:55-2:09; 9:47-56.

         II. Subsequent Events

         Plaintiff was placed in Officer Spradlin's patrol car for transport to the police station. During the ride, Plaintiff and Officer Spradlin had the following conversation, which was recorded on video:

Officer Spradlin: Well let me ask you this. Why are so many people afraid of black people?
Plaintiff: That's what I wanna figure out! Because I'm not a bad black person.
Officer Spradlin: I can give you a really good ... a really good idea of why it might be that way.
Plaintiff: Why?
Officer Spradlin: Violent tendencies. And I want you to ... I want you to think about that. I'm not saying anything. . . I'm not saying it's true. I'm not saying I can prove it or nothing. But 99% of the time when you hear about stuff like that, it's the black community that's being violent. That's why a lot of the white people are afraid, and I don't blame them. There are some guys I look at ... I, yeah ... I know it's my job to deal with them and I know it's probably going to go ugly. . . But that's the way it goes. But yeah, some of them, because of their appearance or whatnot, some of them are very intimidating.

Resp. Richter's Mot. Summ. J. [#43-8] Ex. H (Spradlin Seat Camera Video) at 49:16-50:11.

         Plaintiff was charged with resisting arrest, but the charge was later dismissed. Resp. Richter's Mot. Summ. J. [#43] at 6. Plaintiff was issued a speeding ticket, which she paid. King Dep. at 17:8-10.

         Officer Richter's supervising sergeant, lieutenant, and commander reviewed his use of force on Plaintiff and determined he did not violate APD's policy on use of force. City's Mot. Summ. J. [#39-2] Ex. B (Manley Aff.) ¶ 22. Officer Richter was not disciplined but he was issued a "Conduct Counseling Memo, " which ...


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