A federal appeals court on Thursday upheld a district judge’s ruling that the city of Beaumont should not be a defendant in the civil rights lawsuit of Derrick Newman against two police officers.
In May 2011, U.S. District Judge Ron Clark granted summary judgment to the city, City Manager Kyle Hayes and former Police Chief Frank Coffin, who had been added to the suit after it was removed from a Jefferson County civil court to federal court the previous January. The suit was originally filed in state court in November 2008.
In September 2011, Clark dismissed three of five Beaumont police officers named as defendants in the case stemming from the detention and arrest of Newman during a late-night traffic stop on Aug. 24, 2007.
That left two remaining defendants in the case — since-resigned officer David Todd Burke and James Cody Guedry.
Burke and Guedry were convicted in 2010 by separate juries of the Class A misdemeanor charge of official oppression, Burke for using his custom-made police baton 13 times against Newman and Guedry for repeatedly using a Taser against him. [For more background on the case and a link to a video of the incident, click here.]
In his May order, Clark ruled Newman’s claims against the city, Hayes and Coffin were invalid because they were added to the case after the two-year federal statute of limitations had lapsed.
In his September ruling, Clark found there was enough merit to Newman’s claims against Burke and Guedry that neither were entitled to qualified immunity in the case and that those claims should go to trial. When the pair appealled that ruling at the U.S. Fifth Circuit Court of Appeals, Clark indefinitely postponed the trial.
On Feb. 7, 2012, a three-judge panel of the Fifth Circuit court heard oral aruments in Newman’s appeal of Clark’s ruling dismissing the city, Hayes and Coffin from the lawsuit.
In the appeal, Langston Adams, Newman’s attorney, claimed that it wasn’t until testimony in Guedry’s December 2010 criminal trial that they learned of a so-called “zero tolerance policy” instituted by the Beaumont Police Department, in which officers were directed to take a harder line against criminal activity in designated parts of the city. Therefore, Adams argued, Newman’s claims against the city should not be barred by the statute of limitations.
Quentin Price, an assistant Beaumont city attorney, countered that the existence of the “COMSTAT” policy was hardly a secret, since those statistics are published in the local Beaumont Enterprise newspaper and on its website. Price also aruged that the city did not ever attempt to hide the policy from Adams and Newman, and they could easily have learned about it through diligent discovery processes.
In any event, Price argued, Adams and Newman had failed to demonstrate a connection between the policy and the actions taken by officers against Newman on the night in question.
In its 7-page unpublished ruling issued Thursday, the three-judge panel of the appeals court agreed with the city.
“We agree with the district court’s determination that, on the date of his arrest, Newman’s knowledge triggered a duty of inquiry that should have led him to learn of BPD’s zero tolerance policy,” the judges wrote.
“Even a cursory investigation into police procedures in this case likely would have uncovered the existence of the zero tolerance policy. This investigation could have taken the form of interrogatories or depositions in which Newman’s counsel asked police department officials which procedures governed the dispatch of officers,” the judges wrote.
“The ease with which Newman was able to elicit the required information from (an administrative officer) after learning of the zero tolerance policy tends to show that such an investigation would not have been especially difficult, had Newman undertaken to understand the policies of the BPD. Under these circumstances, Newman’s arrest triggered a duty to investigate his injury that should have led him to learn of the zero tolerance policy,” they wrote.
On Sept. 20, Burke filed a petition for discretionary review of the Texas Ninth Court of Appeals’ ruling upholding his conviction to the Texas Court of Criminal Appeals, based largely on the question of whether state District Judge Layne Walker wrongfully allowed one of the potential jurors on the jury. The appeals court has yet to rule on the matter.
UPDATES: On March 21, 2012, the Texas Court of Criminal Appeals heard oral arguments in Burke’s appeal. On June 27, 2012, the court ruled that because Judge Walker failed to grant a defense motion to strike for cause a potential juror who had expressed doubts about being impartial, Burke should receive a new trial. A trial date has not been set.
Meanwhile, the Jefferson County Criminal District Attorney’s Office appealed state district Judge John B. Stevens’ decision granting Guedry a new trial at the Ninth Court of Appeals in Beaumont. Guedry, who had originally been dismissed after his conviction, returned to the force as a community services officer pending the resolution of his case. On Sept. 5, 2012, the Ninth Court upheld Stevens’ ruling granting Guedry a new trial. Jefferson County prosecutors have filed a petition for discretionary review of the ruling with the Texas Court of Criminal Appeals.
On Oct. 3, 2012, a three-judge Fifth Circuit panel heard oral arguments in Burke and Guedry’s appeal of Clark’s ruling denying them summary judgment. The panel has not yet rendered a decision. On Dec. 21, in a 2-1 decision, the panel denied the officers’ appeal. On Jan. 4, 2013, the officers’ attorneys filed a motion for rehearing en banc of the decision by the Fifth Circuit Court. On March 13, the court denied the motion for rehearing en banc, meaning the case will return to the court of U.S. District Judge Ron Clark for trial.
Find links to full coverage of the Guedry and Burke cases here.
Copyright © 2012 Ken Fountain. All rights reserved.