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Piper v. Preston

United States District Court, W.D. Texas, San Antonio Division

June 28, 2018




         To the Honorable United States District Judge Fred Biery:

         This Report and Recommendation concerns the Motion for Summary Judgment, Dkt. No. 41, filed by Defendant Nathan J. Preston, a detective for the San Antonio Police Department. At issue is his entitlement to qualified immunity with respect to claims pursuant to 42 U.S.C. § 1983 asserted against him for excessive force, false imprisonment, and unlawful arrest.

         All pretrial matters in this case have been referred to the undersigned for disposition pursuant to Rules CV-72 and 1 to Appendix C of the Local Rules for the United States District Court for the Western District of Texas. Dkt. No. 48. The Court has federal question jurisdiction over this § 1983 case, see 28 U.S.C. § 1331, and the undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

         For the reasons discussed below, the undersigned concludes that Detective Preston is entitled to qualified immunity. Accordingly, it is recommended that Preston's Motion for Summary Judgment, Dkt. No. 41, be GRANTED.

         I. Facts Supported by the Summary Judgment Record

         This § 1983 action stems from an early morning traffic stop (at approximately 1:30 am) on November 7, 2014. Plaintiff Raycheal Piper does not dispute that Preston stopped her for speeding or that she was in fact driving 55 mph in a 45 mph zone. She does, however, dispute the lawfulness of her ensuing arrest and the force used by Detective Preston in connection with it.

         The record includes a video from the dashboard camera of Preston's patrol car. Both parties agree the video provides some of the best evidence of the traffic stop and ensuing arrest. The undersigned has viewed the video. The summary judgment record also includes a sworn affidavit from Preston. There is no affidavit from Piper. Indeed, there is no other competent evidence (in contrast to argument from counsel) reflecting her view of events.

         The video shows Preston initiating the traffic stop. As Preston's patrol car pulls up behind Piper, she moves her vehicle off the road and into a grocery store parking lot, where she comes to a stop. After stopping immediately behind Piper's vehicle, Preston exits his patrol car and walks up to the driver's side of Piper's SUV. He then asks Piper for her driver's license and explains the reason for the stop-driving 55 mph in a 45 mph zone. Piper's response is slurred and disjointed. She soon thereafter admits to drinking “some wine” that evening. As he is speaking with Piper, Preston could, he explains is his uncontroverted affidavit, “smell a strong odor of intoxicants coming from [Piper's] breath. She also had bloodshot eyes and, ” as mentioned, “slurred speech.” Preston Aff. at 1.

         In the video, Preston asks Piper how much wine Piper consumed that evening. Piper, in response, is evasive and immediately begins behaving uncooperatively. The situation escalates quickly. Piper repeatedly fails to comply with many, many clear instructions from Preston for her to get out of her SUV. The obviously already frustrated Preston soon opens Piper's door and orders Piper both to turn off and to exit her vehicle. She continues to ignore Preston, acting both somewhat confused and aggrieved by Preston's insistence and impatient tone. Her SUV appears to remain running. Preston warns Piper that she will be placed under arrest if she continues to ignore his instructions. Piper's response, “arrest me, ” elicits a predictable response from the already extremely frustrated Preston, who immediately informs her that she is under arrest. The problem, for all concerned, is that Piper is still seated in her vehicle, which appears still to be running, and she continues to refuse to exit as instructed, even when she is threated with pepper spray.

         At this point, while (again) explaining to Piper repeatedly, “get out of the vehicle, you are under arrest, ” Preston relents on his threat to use pepper spray and instead uses his hold on Piper's left arm to pull her in an effort to remove her physically from her vehicle. This tactic, however, fails. At approximately one minute and twenty seconds after Preston first ordered Piper out of her vehicle, Preston radios for backup and (again) orders Piper out of the vehicle several more times, while simultaneously maintaining his grip on her left arm. Piper continues to ignore his instructions. Preston then pulls on Piper's left arm in a second, more robust attempt to remove her physically from the vehicle. But she hooks her right arm around the steering wheel to physically resist removal and at one point, pushes his hand away. See Preston Aff. at 2.

         The video next shows Preston pull out his pepper spray from his belt, and for a second time he holds it in Piper's face and threatens to use it if she does not get out of the vehicle. He warns Piper that this is her “last chance” to exit the vehicle. She still does not comply. Preston again relents with the pepper-spray threat and instead resumes his efforts to physically remove Piper from the vehicle. Preston is yet again thwarted by Piper as she leans towards the passenger seat and, we are told by Preston in his affidavit, continues to pull away from Preston by holding the steering wheel with her right hand or arm. Preston Aff. at 2. Preston finally is able to physically remove Piper from her vehicle. He takes his pepper spray from his belt (for a third time) as Piper stumbles from the SUV in his grasp.

         The situation only worsens with Piper out of the car. Preston, holding Piper's left wrist, orders Piper to turn around and face her vehicle. At the same time, Preston physically guides Piper so he is standing behind her while she faces the side of her own vehicle, with her right hand pressed against vehicle's side and her left arm in Preston's grasp. Piper ignores Preston's instruction to turn around. Instead, Piper uses her right hand to push off the side of her vehicle and swing back around to face Preston. At this point, Preston sprays Piper in the face with the pepper spray he is holding. He then orders her to the ground and soon thereafter takes her to the ground off-camera. In his affidavit, Preston explains his reason for taking Piper to the ground: “I got some of the pepper spray in my mouth which caused me to have some breathing problems and burning to my face. At that point I believed it necessary to put the Plaintiff on the ground for my safety.” Id. at 2. Piper alleges in her complaint that Preston “smashed her face into the concrete” after throwing her to the ground. See Amend. Compl.¶ 20. There is, however, no evidence of this. Preston avers in his uncontroverted affidavit that “at no time” did he “throw the Plaintiff to the ground or smash her face on the concrete.” Preston Aff. at 3. Off camera, Preston places Piper in handcuffs. Backup arrives a short while later.

         A subsequent search of Piper's car revealed a small amount of marijuana and a pipe. Authorities charged her with driving while intoxicated, resisting arrest, possession of marijuana, and possession of narcotics paraphernalia. Her blood alcohol level, when later tested, was 0.163. Ex. ...

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