United States District Court, W.D. Texas, Austin Division
SPARKS SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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).
Officer Richter's History
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.
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.
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. 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.
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.
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.
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.
The Traffic Stop
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.
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.
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.
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.
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
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.
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
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.
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.
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.
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 ...