Burke and Guedry only defendants left in Newman civil suit

September 24, 2011

Law & Courts

A federal judge has dismissed three of five Beaumont police officers named as defendants in a civil rights case stemming from the arrest of Derrick Newman during a late-night traffic stop on Aug. 24, 2007.

In a partial summary judgment issued Friday, U.S. District Judge Ron Clark left two remaining defendants in the case — since-resigned officer David Todd Burke and James Cody Guedry.

In May, Clark dismissed Newman’s claims against the city of Beaumont, City Manager Kyle Hayes and then-Police Chief Frank Coffin. He ruled those claims, which were added to the lawsuit after it was removed from a Jefferson County state district court, were beyond the two-year statute of limitations. Newman’s attorney, Langston Adams, is appealing that ruling at the U.S. Fifth Circuit of Appeals.

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 the 15-page ruling, Clark found that officers Jason Torres (who initiated the traffic stop), John Brown (who arrived on the scene afterward) and Charles Duchamp (then Guedry’s patrol training officer, now a detective) did not mistreat Newman nor have an opportunity to prevent Burke and Guedry from doing so.

(Generally, in the summary judgment phase of a federal civil lawsuit, a judge must consider the alleged facts in the case in the light most favorable to the plaintiff. Other, so-called material, facts must be left to the jury in the trial, or to the judge in a bench trial.)

Clark also found that the three were entitled to “qualified immunity” in the case, meaning they acted reasonably in the scope of their official duties.

“While it is clearly established law that an officer must take reasonable measures to protect a suspect from another officer’s use of excessive force, Mr. Newman has not shown any evidence that Officers Duchamp, Torres, and Brown had a reasonable opportunity both to realize that excessive force was being used, and to intervene to stop it,” Clark wrote.

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 (barring a settlement).

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.

Meanwhile, the Jefferson County Criminal District Attorney’s Office is appealing state district Judge John B. Stevens’ decision granting Guedry a new trial at the Ninth Court. Guedry, who had originally been dismissed after his conviction, is back on the force as a community services officer pending the resolution of his case.

UPDATES:  On Oct. 21, Craig Schexnaider, the civil attorney for Burke and Guedry, filed a notice of appeal of Clark’s ruling to the Fifth Circuit. Four days later, Clark canceled the case’s Nov. 28 trial setting, pending the resolution of the appeal. [Read about Schexnaider’s participation in Guedry’s criminal trial here and how that impacted a later ruling by state district Judge John B. Stevens Jr. here.] On Nov. 10, Langston Adams, Newman’s attorney, filed a notice of cross-appeal of the portion of Clark’s ruling granting summary judgment to officers Torres, Brown and Duchamp.

On Feb. 7, 2012, a three-judge panel of the U.S. Fifth Circuit Court of Appeals heard arguments in Newman’s appeal of Judge Clark’s order dismissing Hayes and Coffin from the civil lawsuit. On March 15,  the panel affirmed the ruling. Earlier, on March 8, a separate Fifth Circuit panel dismissed Newman’s appeal of  Clark’s granting summary judgement to the three officers other than Burke and Guedry. The three-judge panel said that appeal was premature.

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, returning the case to the court of U.S. District Judge Ron Clark for trial.

Testimony in the civil trial began on January 30, 2014, more than six years after the original incident. On February 1, the five-man, four-woman jury found that Guedry did not violate Newman’s rights but that Burke did. They awarded Newman just over $40,000 in compensatory and punitive damages. Burke said he would appeal.

On March 21, 2012, the Texas Court of Criminal Appeals heard oral arguments in Burke’s appeal of his conviction. 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.

 On Sept. 5, 2012, the Ninth Court of Appeals in Beaumont upheld Stevens’ ruling granting Guedry a new trial. Jefferyson County prosecutors have filed a petition for discretionary review of the decision with the Texas Court of Criminal Appeals.

CLARIFICATION:  In many of the court proceedings involving the Derrick Newman case, the exact number of times Guedry used his Taser has been ambiguous. In the original version of this post, it was stated that Guedry used the weapon “twice.” In his ruling, Clark notes that deposition testimony establishes that the number of times was three.

NOTE:  Clark’s ruling was first reported by KMBT-TV.

RELATED: Beaumont police chief says department will rebound from setbacks

Find links to full coverage of the Guedry and Burke cases here.

Copyright © 2011 Ken Fountain. All rights reserved

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About Ken Fountain

I'm a journalist and writer in Houston, Texas. My areas of specialty inxfcgclude law and courts, local government and industry and environmental issues. You can follow me on Twitter at @twitter.com/kenfountain and email me at kenfountain1 (at) gmail (dot) com.

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