Opinion
Civil Action No. 03-1651, SECTION: "C"(4).
December 10, 2004
AMENDED ORDER AND REASONS
Before this Court is Defendant's Motion for Summary Judgment on the issue of qualified immunity and municipal liability. Having reviewed the parties' motion and opposition, attached exhibits, and the applicable law, the Court hereby rules that Defendant's Motion for Summary judgment be GRANTED with respect to the qualified immunity defense as to the reasonable suspicion predicate and the reasonableness of the request for the plaintiff's identification. The Court DENIES Defendants' motion with respect to the excessive use of force claim. The Court GRANTS summary judgment in favor of Defendant Compass that he is not subject to municipal liability in his official capacity.
I. BACKGROUND
This cases arises from an investigatory stop of the plaintiff, James Myers, Jr., by defendants Gus James and Ron Zoller of the New Orleans Police Department ("N.O.P.D."). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). To present the factual background to the defendant's motion, the Court therefore relies on the plaintiff's incident report. (Rec. Doc. 31, Ex. 1).
After midnight on June 12, 2002, Mr. Myers had accompanied a friend, Stephanie Preston, to her car in a parking lot in the 4300 block of Chief Menteur outside an establishment called "the Greek Shop" where the plaintiff worked. A police car suddenly appeared with flashing lights, and two police officers jumped out. Officer James said to them that it seemed like "a strange place to have a rendezvous" outside the bank. Ms. Preston corrected the officers that the building was not a bank. At this point, Officer James asked Mr. Myers for his identification. In response, the plaintiff affirmed that he did, but questioned the officers' need for identification. To this query, Officer James curtly said, "just give me the fucking ID."
The plaintiff again asked the reason for the identification, to which Officer James said it was to run a check on his name. The plaintiff informed the police that his identification was in his car and took a step to retrieve it. At that point, Officer Zoller put handcuffs on the plaintiff's left wrist, "slammed" him onto the hood of Ms. Preston's car "while Officer James grabbed and twisted [the plaintiff's] right arm and push[ed] [him] harder into [Ms. Preston's] car." Officer Zoller emptied the contents of the plaintiff's pockets onto the hood of the car. Then Officer James shouted at the plaintiff to spread his legs. Officer Zoller patted him down, and in doing so, grabbed the plaintiff's testicles and asked him if he liked the way that felt.
Officer Zoller admits to frisking the plaintiff between the legs, but denies that he did so with any commentary, or that he struck the plaintiff's testicles. ( See Rec. Doc. 31, Ex. 2, Depo. of Ron Zoller at 14).
The officers then placed the plaintiff, still handcuffed, in the rear of the patrol car while they ran checks on both the plaintiff and Ms. Preston. Neither the plaintiff nor Ms. Preston had outstanding warrants or noteworthy criminal records. Instead of releasing Mr. Myers at that point, the officers summoned a supervisor, Sargeant Scanlan, purportedly to calm down the "belligerent" plaintiff and explain the reasons for his detention. Some additional minutes passed before Sargeant Scanlan's arrival. Purportedly, Sargeant Scanlan offered the justification for the stop that there had been a number of burglaries in the area. Although still upset and dissatisfied with the explanation, the plaintiff was released at that point.
Officers James and Zoller claim the need for a superior officer was due to the plaintiff's belligerence. In the eyes of the officers, this belligerence was manifest because the plaintiff did not want to "listen" to the officers' explanation about the stop. ( See Rec. Doc. 31, Ex. 3, Depo. of Gus James at 18).
Plaintiff asserts that the stop's duration was longer than reflected in the dispatch logs (in excess of forty-five minutes), and that the defendants lingered at the scene after Sargeant Scanlan's departure. During this final stage of the stop, plaintiff is alleged to have made an obscene kissing gesture at the officers. Defendants are alleged to have driven their car in the direction of the plaintiff, only to swerve away at the last second in a purported act of intimidation.
The N.O.P.D.'s computer records of the incident indicate that the officer's presence at the scene lasted thirty-six minutes. ( See Rec. Doc. 29, Ex. A.)
In the aftermath of the incident, on June 14, 2002, Mr. Myers filed a complaint with N.O.P.D.'s Public Integrity Division ("PID") where he recited similar facts as alleged here. (Rec. Doc. 31, Ex. 1). On June 18, 2002, N.O.P.D. initiated an "Informal Disciplinary Investigation" into Mr. James' complaint of "sexual harassment." (Rec. Doc. 31, Ex. 4). The investigation report, issued on July 5, indicates that Officers James and Zoller denied using profanity and grabbing the plaintiff's testicles. ( Id. at 2). Nevertheless, the investigating officer concluded that while the "suspicion person stop" had been "justified," the officers were admonished that they could have "handled [the situation] more diplomatically." ( Id.)
II. STANDARD OF REVIEW
A district court can grant a motion for summary judgment only when the "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid, 784 F.2d at 578. The Court must find "[a] factual dispute . . . [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24 and Fed.R.Civ.P. 56(e)). The non-moving party may submit affidavits or other evidence to rebut with specific facts the movant's supported assertion of the absence of a genuine issue of material fact. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In order to create a jury question on an issue, "there must be a dispute in the substantial evidence, that is, evidence which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions." Chaney v. New Orleans Pub. Facility Management, 179 F.3d 164, 167 (5th Cir. 1999).
III. LAW AND ANALYSIS
The plaintiff alleges that Officers James and Zoller, in their individual and official capacity, used excessive force during the investigatory stop, thereby violating his rights under the Fourth Amendment. Based on this allegation, plaintiff asserts a claim under 42 U.S.C. § 1983, in addition to state law claims for battery and false imprisonment. (Rec. Doc. 1). Plaintiff also asserts the § 1983 claim against Eddie Compass, Superintendent of N.O.P.D., as a representative of the City of New Orleans ("the City").
Defendants James and Zoller raise a defense of qualified immunity, arguing that the purpose and intensity of the stop were reasonable. Defendant Compass asserts that the City cannot be held liable for the actions of Officers James and Zoller because the allegedly unreasonable seizure was not carried out pursuant to any official municipal policy.
A. Distinction between suits against officers in official and individual capacities
In Turner v. Houma Municipal Fire and Police Civil Service Bd., 229 F.3d 478 (5th Cir. 2000), the Fifth Circuit criticized omnibus assertions of liability and immunity, stating that "[t]he performance of official duties creates two potential liabilities, individual-capacity liability for the person and official capacity liability for the municipality." Id. at 484. Official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent. However, to be liable in one's official capacity under § 1983, the defendant must have been delegated policy-making authority under state law. City of St. Louis v. Praprotnik, 485 U.S. 112, 125 (1988). In essence, suing a party in his official capacity is duplicative of an action against the municipality which the official serves as an agent.
In contrast, personal-capacity suits which seek to impose individual liability upon a government officer for actions taken under color of state law are recognized under § 1983. Hafer v. Melo, 502 U.S. 21, 25 (1991). A state official can be sued in his individual capacity and be held personally liable under § 1983 if it can be shown that the official, acting under color of state law, caused the deprivation of a federal right. Hafer, 502 U.S. at 25-31. However, such persons are entitled to assert qualified immunity. Id.
Here, Officers James and Zoller were sued both in their official and individual capacity. Because defendants James and Zoller are only subordinate police officers in the N.O.P.D., they do not have policy-making authority. For this reason, they cannot be held liable under § 1983 in their official capacity for any municipal policy that allegedly deprived the plaintiff of a constitutional right. Therefore, the Court examines the remainder of the parties' claims and defenses with respect to Officers James' and Zoller's actions strictly in their individual capacity. The claims against the municipality are properly addressed with respect to Superintendent Compass. See Order and Reasons, infra, Part C.
B. § 1983 and Qualified Immunity
Section 1983 provides that every person, who, under color of law, subjects, or causes to be subjected, any person within the jurisdiction of the United States "a deprivation of any rights, privileges, or immunities under the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . ." 42 U.S.C. § 1983. Claims of excessive force in the context of arrests or investigatory stops should be analyzed under the Fourth Amendment's "objective reasonableness" standard. Graham v. Connor, 490 U.S. 386, 394 (1989).
As a threshold inquiry, however, the Supreme Court has ruled that the district court must determine as early as possible in the litigation whether the defendant is entitled to qualified immunity. See Katz v. Saucier, 553 U.S. 194, 201 (2001). Qualified immunity protects officers charged with discretionary duties from suit unless their conduct violates a clearly established constitutional right. Harlow v. Fitzgerald, 457 U.S. 800 (1982). The burden is on the plaintiff to overcome a defendant's defense of qualified immunity. Saldana v. Garza, 684 F.2d 1159, 1163 (5th Cir. 1982), cert. denied, 460 U.S. 1012 (1983).
In Katz, the Supreme Court refined its earlier Harlow ruling and set forth a two-pronged analysis to determine the propriety of qualified immunity in the context of allegations of excessive use of force. An officer is barred from qualified immunity if: (1) there is a violation of a clearly established constitutional right, and (2) the reasonable officer would be aware that his conduct was unlawful in the situation he confronted. See Katz, 553 U.S. at 207-208. The effect of qualified immunity is to grant officers immunity from reasonable mistakes as to the legality of their actions. Id. at 206. It should be further emphasized that qualified immunity obtains in addition to the deference owed the officer on the underlying constitutional claim, for instance in allowing wide latitude for officer safety or to guard against potential flight. See id. (emphasis added). The objective reasonableness standard as applicable here is "intended to provide government officials with ability reasonably [to] anticipate when their conduct may give rise to liability for damages.'" Anderson v. Creighton, 483 U.S. 635, 646 (1987) (internal citations omitted). The objective reasonableness standard "provides ample protection to all but the plainly incompetent and those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).
Plaintiff argues that the investigatory stop was unreasonable because its duration was too long for the ostensible purpose of ascertaining that the plaintiff did not warrant the suspicion the defendants initially believed. Second, the plaintiff claims that the particular manner in which Officers James and Zoller executed the stop and frisk amounted to an unconstitutional excessive use of force. Defendants respond that the duration of the stop was of a reasonable length to investigate the plaintiff's background and explain the grounds for the investigation. They further respond that the officers used appropriate force to ensure officer safety and/or prevent suspect flight.
1. Reasonableness of the Stop
Under the first prong of Katz, it is beyond doubt that the plaintiff enjoys a clearly established right not to be arbitrarily stopped, questioned, and detained. See, e.g., U.S. Const. amend IV; Terry v. Ohio, 392 U.S. 1 (1968); La. Code Crim. Proc., Art. 215.1(A). Thus the focus of the inquiry falls on the officers' conduct.
In the Terry decision, the Supreme Court recognized that an officer's reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Terry, 392 U.S. 1. Under this approach, the Court examines "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Id. at 20. More recently, the Supreme Court held that where a so-called "stop and identify" statute permits a police officer to request identification from a citizen, the citizen may not refuse to answer unless the officer's actions were unreasonable, i.e. inconsistent with the Fourth Amendment. Hibel v. Nevada, 124 S. Ct. 2541, 2459 (2004). In dicta, the Hiibel Court distinguished that the Terry stop could not be a seizure that continued for an inordinate period or resembled a traditional arrest. Hiibel, 124 S. Ct. at 2458. See also United States v. Place, 462 U.S.696, 709 (1983) (noting that Terry stop should be only a minimal intrusion); United States v. Dunaway, 442 U.S. 200, 212 (1979) (finding that where suspect was removed from house, placed in patrol car, taken to station house, and questioned in interrogation room, the Terry stop resembled traditional arrest).
Louisiana has such a law to guide officer conduct. See La. Code Crim. Proc. Ann., Art. 215.1(A) (West 2004) ("Temporary questioning of persons in public places; frisk and search for weapons"): "A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions."
a. Predicate of reasonable suspicion
Given that the 4300 block of Chef Menteur was purportedly notorious for burglaries, it is understandable that the location of the plaintiff and his friend in the parking lot after midnight provided sufficient grounds for the officers to approach for an investigatory purpose. The fact that the officers mistook the adjacent building (the Greek Shop) for a bank is the type of reasonable error of judgment from which the police officer enjoys protection under qualified immunity. See Katz, 553 U.S. at 206. At this point in the sequence of events, therefore, the stop was justified at its inception, the officers' suspicion was reasonable, and their conduct was within the law under the reasonable suspicion predicate in Terry.
b. Request for identification
An officer may request identification pursuant to a "stop and identify" statute if the officer has reasonable suspicion under the circumstances. See Hiibel, 124 S. Ct. at 2460. Faced with what reasonably appeared to be a suspicious situation initially, the officers were within lawful bounds to request identification even if the partial premise of their request was erroneous (there was no bank). See Katz, 553 U.S. at 206. Qualified immunity also protects the officers at this point in the stop.
c. The duration of the Terry stop
Plaintiff argues that the duration of the investigatory stop exceeded the acceptable length of time reasonably necessary to perform a Terry stop and resembled a traditional arrest due to the intensity of the seizure. (Rec. Doc. 31 at 6-8). Defendants cite several cases in support of their contention that an approximate period of 36 minutes (according to the dispatch log) is not excessive. Plaintiff's estimate of the time lapse appears to be in the same range as the defendants' approximation.
U.S. v. Sharpe, 470 U.S. 675 (1985) (20 minutes reasonable); U.S. v. Hardy, 855 F.2d 753 (11th Cir. 1988) (50 minutes within parameters of Terry stop); U.S. v. Davis, 768 F.2d 893 (7th Cir. 1985) (45-minute stop constitutionally permissible); U.S. v. Richards, 500 F.2d 1025 (9th Cir. 1974) (stop in excess of one hour not unreasonable).
Supreme Court precedent makes clear that the law imposes no rigid time limitation on Terry stops. U.S. v. Sharpe, 470 U.S. 675, 687 (1985). While it is clear that "the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion," Place, 462 U.S., at 709, the Court must consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes. United States v. Hensley, 469 U.S. 221, 228-229, 234-235 (1985); Place, 462 U.S. at 703-704, 709.
The Court recognizes that the central purpose of the investigatory stop at issue — to run background checks on the plaintiff and Ms. Preston — might have been, and probably were effectuated, in a briefer period than twenty to thirty minutes. Cloaked with qualified immunity, however, the officers are afforded greater latitude in assessing the legal temporal limit of a Terry stop. The Court will not impose liability unless their mistakes regarding the temporal limit are unreasonable. See Katz, 553 U.S. at 206. Given the fact that officers received some resistance to their request for identification, it is not unreasonable that twenty, or even forty minutes, might have elapsed during the background check and the waiting period for their supervisor's (Sargeant Scanlan) arrival. Notwithstanding the open-ended temporal standard in Sharpe, defendants cite authority to suggest that periods in excess of forty minutes can be within constitutional bounds. In light of the purposes of the stop and the time taken to effectuate those purposes, the Court does not find the defendants' actions unreasonable, even if they were flawed by error. Accordingly, Officers James and Zoller are entitled to qualified immunity on the issue of the duration of the Terry stop.
2. Excessive use of force
The Supreme Court recognized in Graham, 490 U.S. 386, the constitutional right to be free of objectively excessive force during an investigatory stop or arrest. Under a standard of objective reasonableness, the Court will determine whether a reasonable police officer would have used a similar degree of force in light of the particular facts and circumstances the officer confronted at the time of the incident. Id. at 396. When gauging the reasonableness of an officer's actions, the Court should consider the following factors: 1) the severity of the crime at issue, 2) whether the suspect poses an immediate threat to the safety of the officers or others, 3) and whether he is actively resisting arrest or attempting to evade arrest by flight. Id. at 396. In assessing "the credibility of an officer's account of the circumstances that prompted the use of force, a fact-finder may consider, along with other factors, evidence that the officer may have harbored ill will toward the citizen." Id. at 399 n12. The Graham authority thus satisfies the first prong of Katz that a clear constitutional right is established.
a. Restraint of the plaintiff
With respect to Officer Zoller's and James' decision to restraint the plaintiff, defendants are not entitled to qualified immunity on summary judgment under the second prong of Katz. According to the plaintiff, he did not refuse to provide the officers with his identification, but rather acknowledged that he had identification and questioned the officers' need for it. The plaintiff claims that the officer responded to the plaintiff, "just give me your fucking ID." When the plaintiff repeated his question and received the explanation that the officers needed to run a background check, he told the officer that he had it in the car and took "one step" before he was "slammed" onto the hood of Ms. Preston's car and handcuffed. In this scenario, there appears no indication that the plaintiff was either armed or intended to flee. Such a rationale for the officers' actions is entirely speculative.
Even if a reasonable officer had concern over the possibility of the plaintiff retrieving a weapon or fleeing, he had several options: (1) he could have instructed the plaintiff to remain standing and indicate where in the car the identification was so he could retrieve it himself; or (2) he could have escorted the plaintiff to the car to retrieve the identification under the eye of the officer. If the jury were to believe that the plaintiff was instead "slammed" into the hood of Ms. Preston's car (Rec. Doc. 31 at 2), defendant Zoller's actions would be unconstitutionally excessive. Given these choices, it was objectively unreasonable under these circumstances, viewed in the light most favorable to the plaintiff, for the officers to resort to force and detention. Accordingly, the Court cannot blanket the officers with qualified immunity as a matter of law.
b. The frisk
In the face of the allegation that Officer Zoller grabbed the plaintiff's testicles during the frisk, the defense of qualified immunity fades further under these circumstances. First, for purposes of summary judgment, the Court must accept as true the plaintiff's allegation unless effectively rebutted by the defendants. Reid, 784 F.2d at 578. The plaintiff submitted in opposition to defendants' motion a copy of the PID informal investigation into aan alleged sexual harassment complaint filed shortly after the incident. In that document, the plaintiff gave a detailed account of Officer Zoller grabbing his testicles in conjunction with sexual innuendo. (Rec. Doc. 31, Ex. 4). This factual issue is material to the plaintiff's claim and defendants' defense of qualified immunity. Assuming arguendo the veracity of the plaintiff's allegation, the Court cannot find any justification for striking a suspect's testicles during an ordinary Terry frisk. Such an intrusion and excessive use of force cannot be encompassed within the general deference to law enforcement officers under Garner or under the qualified immunity from reasonable legal mistakes under Katz. In short, grabbing a citizen's testicles under these circumstances is plainly unconstitutional.
C. The Monell Claim
In addition to the claims against Officers James and Zoller, the plaintiff asserts a murky allegation that Eddie Compass, as Superintendent of the N.O.P.D., maintained a policy of not enforcing sanctions for officer misconduct. (Rec. Doc. 31 at 12-13). The plaintiff argues that due to Officer Zoller's apparent unawareness of the PID investigation for sexual harassment (Rec. Doc. 31, Ex.4), Superintendent Compass must have been derelict in failing to confront officers with citizen complaints. From this alleged failure, the plaintiff asserts that it can be inferred that Superintendent Compass had a deliberate policy on non-enforcement.
Defendants respond that under Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1987), a municipality cannot be held liable when its employee violates a constitutional right unless the offending employee was carrying out official policy. (Rec. Doc. 31 at 10-11). Under this authority, defendant Compass asserts that the plaintiff produced no evidence of any N.O.P.D. policy to tolerate abuses by its officers. Defendant also denies any constructive knowledge of any on-going practice of such abuses, which might amount to such a "policy".
To make out a Monell claim under § 1983, a plaintiff must show that a particular municipal policy was "the moving force of the constitutional violation." Monell, 436 U.S. at 691. The Monell Court found that § 1983 did not impose on municipal supervisors a duty to control their subordinates, which eliminated respondeat superior as a viable theory for actions brought under the statute. Id. at 693-694, 694 n. 58. Municipal liability under § 1983 obtains only "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury [on the plaintiff]." Id. at 694. Finally, only officials who have been delegated policy-making authority under state law are liable under § 1983. Praprotnik, 485 U.S. at 124-125 (1988). See also Pembaur v. Cincinnati, 475 U.S. 469, 483-484 (1986) (plurality) ("[M]unicipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives [by city policymakers]").
In regard to customary unconstitutional police conduct, a municipality can be held liable for the failure to train subordinate police officers whose conduct is unconstitutional only when that failure "amounts to deliberate indifference to the rights of person with whom the police come in contact." City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989) (emphasis added). To hold a supervisory official liable, a plaintiff must show that (1) the supervisor failed to supervise or train the subordinate official; (2) a causal link exists between the failure to train and the violation of the plaintiff's rights; and (3) the failure to train or supervise amounts to deliberate indifference. Smith v. Brenoettsy, 158 F.3d 908, 911-12 (5th Cir. 1998) (internal citation omitted).
In the case at bar, the plaintiff extrapolates an allegation that Superintendent Compass maintained a policy to tolerate unconstitutional abuses from the mere statement of Officer Zoller that he was unaware of an informal investigation into his conduct when, in fact, the PID documented its inquiry and its admonishment of both defendants James and Zoller that they could have handled the June 12, 2002 incident "more diplomatically." (Rec. Doc. 31 at 12-13, Ex. 4 at 13-14). The apparent inconsistency between the official report and Officer Zoller's wanting recollection of the investigation is far too tenuous and inconclusive to support a causal link to the plaintiff's injury. More important, the fact that the PID exists and produced an investigation report suggest the N.O.P.D. has a protocol to redress the types of problems raised in the plaintiff's complaint.
The speculative nature of the allegation certainly does not indicate the deliberate indifference required under City of Canton. At worst, the apparent inconsistency suggests that Sargeant Lasalle Rattler, the PID officer who conducted the internal investigation, failed to thoroughly carry out his task by not actually talking to Officer Zoller. Because Superintendent Compass is not duty-bound under respondeat superior to account for the shortcomings of Officers James and Zoller and/or Sargeant Rattler, even assuming the plaintiff's version of the events, he cannot be held liable here for the gap between the findings of the PID investigation and the review of his (mis)conduct that Officer Zoller allegedly failed to receive.
Otherwise, the plaintiff has produced no evidence that any policy-making officials within N.O.P.D. espoused or tolerated a custom or practice of unconstitutional abuses such as the plaintiff's allegations of excessive use of force. Therefore, under Proprotnik, the plaintiff's claim of municipal liability cannot lie. Accordingly, the Court holds that there are no genuine issues of material fact to support the plaintiff's claim that Superintendent Compass, as a representative of the City, is liable under § 1983.
IV. CONCLUSION
IT IS ORDERED that Defendant's Motion for Summary judgment be GRANTED with respect to the qualified immunity defense as to the reasonable suspicion predicate and the reasonableness of the request for the plaintiff's identification. The Court DENIES Defendants' motion with respect to the excessive use of force claim.
IT IS FURTHER ORDERED that summary judgment be GRANTED in favor of Defendant Compass that he is not subject to municipal liability in his official capacity. All claims against Superintendent, as a representative of the city of New Orleans, are DISMISSED WITH PREJUDICE.