Opinion
No. 04-08-00009-CV
Delivered and Filed: May 14, 2008.
Appealed from the 293rd Judicial District Court, Maverick County, Texas, Trial Court No. 06-09-21974-MCV, Honorable Cynthia L. Muniz, Judge Presiding.
AFFIRMED.
Sitting: CATHERINE STONE, Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
This is an accelerated appeal from the denial of a motion for summary judgment. In two issues, Jessica De Luna, a corporal with the Maverick County Sheriff's Department, argues she is entitled to summary judgment because she conclusively proved her actions were objectively reasonable and performed in good faith, thereby establishing both qualified immunity under federal law and official immunity under Texas state law. Because we find material fact issues exist surrounding the underlying arrest, we affirm the trial court's judgment.
Factual and Procedural Background
While on duty with the Maverick County Sheriff's Department on July 30, 2006, De Luna arrested Susie Aguilera, a minor, for driving while intoxicated, evading arrest, and attempting to run down a Sheriff's deputy. Subsequently, Aguilera's mother brought a lawsuit against De Luna and several other defendants on behalf of her minor daughter claiming that in effectuating the arrest De Luna used excessive force, injuring Aguilera. In her First Amended Original Petition, Aguilera claims violations of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and the Civil Rights Act of 1871, now codified in 42 U.S.C. § 1983; additionally, Aguilera claims violations of state law for assault and intentional infliction of emotional distress.
De Luna moved for summary judgment on both the federal and state claims on the affirmative defenses of qualified immunity and official immunity. In support of her motion for summary judgment, De Luna relied upon her own affidavit and the affidavit of another witness to the arrest, Maria Cruz, who at the time of the incident had passed her peace officer exam and was patrolling as a ride-along with De Luna. Additionally, De Luna supported her motion for summary judgment with the expert affidavit of Margo Frasier, an assistant professor in the College of Criminal Justice at Sam Houston State University. Aguilera countered with excerpts from the deposition testimony of Pamira Rodriguez, a passenger in Aguilera's car, and excerpts from the deposition of Aguilera. Based on the evidence presented, the trial court denied De Luna's motion for summary judgment and this interlocutory appeal followed. In two issues, De Luna contends her summary judgment evidence establishes all the elements of her affirmative defenses of (1) federal qualified immunity and (2) official immunity under Texas law.
Standard of Review
On appeal, we review a summary judgment de novo. Hendrix v. Bexar County Hosp. Dist., 31 S.W.3d 661, 662 (Tex.App.-San Antonio 2000, pet. denied). In order to prevail upon a motion for summary judgment based on an affirmative defense, De Luna had the burden of conclusively establishing each element of her affirmative defense and showing that there exists no genuine issue of material fact. Tex. R. Civ. P. 166a(c); Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994). In determining whether a disputed material fact issue exists precluding summary judgment, we view the evidence in the light most favorable to the nonmoving party. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). If sufficient evidence is presented such that reasonable minds could differ about a material fact, then summary judgment is improper. Kassen, 887 S.W.2d at 9.
Summary Judgment Record
Both parties' briefs assume that De Luna was performing discretionary functions within the scope of her authority as a corporal with the Maverick County Sheriff's Department on July 30, 2006. Accordingly, the sole dispute is whether De Luna's use of force with Aguilera was objectively reasonable and done in good faith in light of the facts and circumstances confronting her. De Luna points to her own affidavit and the affidavit of Maria Cruz as establishing that De Luna had probable cause to stop, arrest, and restrain Aguilera. Specifically, De Luna argues the "uncontroverted" affidavit testimony establishes that while responding to a 911 call in reference to a fight at a residence, De Luna observed the female who reportedly started the fight commit a hit and run, fail to obey her command to stop — instead accelerating and almost pinning De Luna against the patrol vehicle, and then leave the scene driving erratically with De Luna in pursuit. Once stopped, De Luna testified the following occurred:
At first, Susie Aguilera did not comply with my demand to get out of the vehicle. I approached the driver's side at which time Susie Aguilera kicked open the door and charged at me. I blocked her attempts to hit me and attempted to subdue her but had difficulty due to the fact that she was swinging her arms at me and attempting to kick me. Deputy Santiago Nava and Maria Cruz then assisted me in restraining her at which time she resisted arrest. It took all three of us to subdue her and place her in handcuffs. During this time, my contact with Susie Aguilera was blocking her blows and eventually being able to grab her left arm in order to place handcuffs on her left wrist.
Similar testimony of the events was also provided by Cruz:
At first, Susie Aguilera did not comply with Corporal De Luna's demand to get out of the vehicle. Susie Aguilera then kicked the door open and got out of the Mitsubishi swinging at Corporal De Luna. Corporal De Luna asked for my assistance in trying to subdue and restrain Susie Aguilera. By this time, Deputy Sheriff Santiago Nava had arrived at the scene and assisted both Corporal De Luna and myself in subduing and restraining Susie Aguilera. While trying to restrain Ms. Aguilera, she started to kick and attempted to hit officers with the back of her head. Due to the fact that Susie Aguilera was very hostile, I placed the palm of my hand behind her upper back to avoid getting hit with her head and placed my right knee on the back of her knees. I saw Deputy Sheriff Santiago Nava grab Ms. Aguilera's right arm. While Susie Aguilera continued to struggle, I witnessed Corporal De Luna place a handcuff on Susie Aguilera's left arm and Deputy Sheriff Nava placed the handcuff on her right arm.
Based in part on the affidavits of De Luna and Cruz, De Luna's expert, Margo Frasier, testified that given the actions taken by Aguilera, De Luna acted reasonably in the level of force used to restrain and detain Aguilera; Frasier further stated that De Luna's actions were "those that a reasonable law enforcement officer could have taken under the same or similar circumstances."
In response, Aguilera presented controverting evidence, including excerpts from the deposition testimony of Rodriguez, a passenger in Aguilera's car. Her version of the events differs from the affidavits submitted by De Luna and Cruz. Rodriguez testified that Aguilera did not kick her door open as she was exiting her vehicle, but instead complied with De Luna's instructions to exit the vehicle. At that time, De Luna and Cruz approached Aguilera and began to handle her "really rough." Rodriguez testified she then observed De Luna "banging" Aguilera's head on the trunk while Aguilera asked her to stop:
Q. And how did Susie get from the door to the trunk area?
A. Because when they got her roughly, they — Susie got mad, I guess, and — well, I did, too, and she started like some — telling-telling them that why are they doing her that [way]. She cussed at them. So that's — I guess she was like moving too much that they took her to the trunk so they can make-I don't know. They just put her like that so she won't move or something, and she was [banging] her head on the — on the trunk.
* * *
Q. Now, you used the word banging again. Was she pushing her head down, or was she banging it like Mr. Handel was saying?
A. She was pushing her head down, but since Susie was like —
Q. Pushing back up?
A. Yeah, exactly.
Q. Okay. So Susie would try and get up, and she would push her back down? Susie would try to get up, and she would push her back down?
A. Uh-huh, yes.
Rodriguez further testified she did not observe Aguilera swing at or kick the officers; however, she did admit Aguilera struggled with the officers, moving her arms and head.
Qualified Immunity
Under applicable federal law, police officers performing discretionary functions are entitled to qualified immunity, shielding them from civil liability, as long as their actions meet an "objective reasonableness" standard. Graham v. Connor, 490 U.S. 386, 396 (1989). A fact-intensive inquiry is necessary to determine whether the officer has met this reasonableness standard with "careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. This is an objective standard; an officer's subjective intent or motivation is not relevant. Id. at 397.
On appeal, De Luna acknowledges that Aguilera did present controverting summary judgment evidence but maintains the factual differences are not sufficient to preclude finding that De Luna's actions were objectively reasonable. De Luna first argues the question as to whether or not Aguilera kicked her door open while exiting her vehicle is immaterial in light of the uncontroverted summary judgment evidence that after exiting the vehicle Aguilera was "resisting arrest by moving her arms and head, fighting with the officers and cussing at the officers." First, we disagree with De Luna that whether or not Aguilera kicked her door open while exiting her vehicle is immaterial. The circumstances under which Aguilera exited her automobile are relevant to the overall tone of the incident. Did Aguilera kick the door open and come out swinging, as described by De Luna, or did she, as described by Rodriguez, obey De Luna's instruction and only then begin struggling in response to excessive force being used by the officers? One creates an impression of an immediate threat to the safety of the officers, while the other creates an impression of a suspect reacting to excessive force. Second, although the evidence is not disputed that Aguilera was actively moving her arms and head and cussing at the officers while they attempted to handcuff her, we disagree with De Luna that the evidence is "uncontroverted" that Aguilera was resisting arrest and fighting with the officers. On this record there are factual disputes that must first be resolved in order to judge De Luna's conduct under an "objectively reasonable" standard.
De Luna also argues that, even if we accept as true the controverting evidence that she pushed Aguilera's head against the trunk, this level of force would have been reasonable to restrain and detain someone "trying to push her head back up after she had been moving both her arms and head, fighting with the officers and cussing at the officers." See Robinett v. Carlisle, 928 S.W.2d 623, 626 (Tex.App.-Fort Worth 1996, writ denied) ("We must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene."). Again, we respectfully disagree. We are reminded that the "reasonableness" inquiry in an excessive force case is fact-intensive but judged under an objective standard. Graham, 490 U.S. at 397. While a reasonable officer could have perceived the need to use force on the facts recited by De Luna and Cruz and adopted by Frasier, reasonable minds could differ about that conclusion when reviewing all the facts presented by the summary judgment evidence. Viewing the evidence in the light most favorable to Aguilera as we are required to do, there exists a disputed fact issue about whether Aguilera actively resisted arrest or posed an immediate threat to the safety of the officers. The deposition testimony of Rodriguez was that despite Aguilera complying with De Luna's request to exit the car, De Luna grabbed Aguilera roughly without provocation. Then, in the process of handcuffing her, banged her head repeatedly into the trunk of the car while Aguilera asked her to stop. Even De Luna acknowledged in her deposition that "if" she had acted as Rodriguez described, then her actions would be an excessive application of force. Based on the factual dispute in the record before us, the trial court did not err in denying De Luna's summary judgment motion based on qualified immunity under federal law.
Official Immunity
In her second issue, De Luna argues the trial court erred in denying summary judgment based on official immunity. Under applicable state law, "[a] governmental employee is entitled to official immunity: (1) for the performance of discretionary duties; (2) within the scope of the employee's authority; (3) provided the employee acts in good faith." Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). An officer acts in good faith unless he could not have reasonably reached the decision in question. City of Lancaster v. Chambers, 883 S.W.2d 650, 657 n. 7 (Tex. 1994). In order to controvert an officer's summary judgment proof on good faith, the plaintiff must do more than show that a reasonably prudent officer could have applied less force; the plaintiff must show that "no reasonable person in the defendant's position could have thought the facts were such that they justified defendant's acts." Id. at 657.
In essence, De Luna contends that she established she was acting in good faith as a matter of law because Aguilera failed to controvert her proof by expert testimony. See Titus Reg'l Med. Ctr. v. Tretta, 180 S.W.3d 271, 276 (Tex.App.-Texarkana 2005, no pet.). We disagree. We have previously considered and rejected a similar argument. See Martinez v. Mikel, 960 S.W.2d 158, 160 (Tex.App.-San Antonio 1997, no writ) (good faith element was not established as a matter of law where expert's opinion was based on officer's version of the events); see also City of San Antonio v. Garcia, 974 S.W.2d 756, 758-59 (Tex.App.-San Antonio 1998, no pet.) (declining to reach issue of whether defense's expert affidavit was competent summary judgment evidence where factual dispute regarding plaintiff's conduct prior to arrest existed). In the instant case, the parties presented two different versions of events surrounding Aguilera's arrest. Cf. Wadewitz v. Montgomery, 951 S.W.2d 464, 466-67 (Tex. 1997) (facts surrounding the officer's actions were not at issue). Viewing the evidence in the light most favorable to Aguilera, as we must do, there exists a material fact issue about whether De Luna's alleged action of repeatedly pressing Aguilera's head against the trunk was justified in restraining and arresting her, and therefore, a material fact issue exists regarding good faith. Accordingly, the trial court did not err in denying De Luna's motion for summary judgment based on official immunity.
The trial court's denial of De Luna's summary judgment motion is affirmed.