‘Zero Tolerance’ policy questioned in Newman appeal arguments

February 7, 2012

Law & Courts

Whether a so-called “zero tolerance policy” instituted by the Beaumont Police Department in designated high-crime areas of the city led to the beating and Tasing of Derrick Newman in August 2007 was the the primary focus of oral arguments in Newman’s civil lawsuit before a federal appeals court Tuesday.

A three-judge panel of the U.S. Fifth Circuit Court of Appeals heard arguments in the lawsuit Newman filed against five Beaumont police officers, the city, its city manager and since-resigned police chief for misconduct and Constitutional rights violations stemming from an August 2007 incident in which he was struck 13 times with a nightstick and repeatedly shocked with a Taser.

[NOTE:  The author did not attend the hearing at the Fifth Circuit courthouse in New Orleans, but instead listened to a recording available on the court’s website.]

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 Newman’s civil complaint in after it was removed (or transferred) from a Jefferson County civil court to federal court in January 2011. The lawsuit was first filed in state court in November 2008.

In September 2011, Clark also dismissed three of five Beaumont officers named as defendants in the case  — Jason Torres, John Brown and Charles Duchamp.

That left two remaining defendants — since-resigned officer David Todd Burke and James Cody Guedry. 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 appealed his ruling, Clark indefinitely suspended the case’s trial date, then set for November 2011.

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 2011 order, Clark found that Newman’s claims against the city, Hayes and Coffin were invalid because they were added to the case after the federal two-year statute of limitations had elapsed. (In September 2011, Coffin resigned after nearly 40 years with the Beaumont police department.)

On Tuesday, the Fifth Circuit panel heard arguments in Newman’s appeal of Clark’s order dismissing the city, Hayes and Cofffin from the lawsuit.

Langston Adams, Newman’s civil attorney, admitted at the outset of Tuesday’s hearing that he was nervous in what was his first occasion making an argument before the federal appeals court.

Adams began by relating the somewhat meandering course Newman’s case has taken, beginning with his filing of a grievance against the officers with the city — one that ultimately led to Coffin disciplining Burke with a two-day suspension. That decision was later overturned by an outside arbitrator.

It was not until testimony in Guedry’s criminal trial in December 2010, Adams told the jurists, that he learned of the so-called “zero tolerance policy,” in which Beaumont police department officials use “COMPSTAT” data to direct officers to take a harder line against suspected criminal activity in certain parts of the city. Newman and his two companions were stopped in the South Park area, a predominantly African-American community.

Since that information was unavailable to him, Adams argued, he couldn’t include in Newman’s original petition his claims that the city failed to properly train and supervise its officers, the crux of his claims against the city.

After some give-and-take between the judges and Adams about what his actual claims against the city were, Judge James E. Graves, Jr. honed in on what would become the central theme of the approximately 45-minute session: how and whether the existence of  the”zero tolerance policy” led to Newman’s detention and treatment by the officers, and when Newman should have known of the existence of the policy.

Adams said during the course of the proceedings, he and Newman made numerous open records requests to the city for the police department’s polices and procedures. But, he said, none of the information provided by the city hinted at a zero-tolerance policy.

“Is it your understanding that this zero tolerance policy is an unwritten policy?” Graves asked.

“It’s (an) absolutely unwritten policy,” Adams answered. “I wouldn’t even know to ask about it (during discovery requests).”

“I think ultimately the fear is that cities will now be encouraged to have these unwritten polices that you can’t find anything about,” especially if they target residents of predominantly minority areas, he said.

Quentin Price, a Beaumont assistant city attorney, led off his argument by noting that Clark had entirely dismissed Newman’s claims against Hayes and Coffin, and that he was representing only the city.

He then addressed what he somewhat ironically called “the hidden policy of the COMPSTAT.” Price said this policy — in which senior police officials hold weekly meetings to discuss which areas of the city have the highest incidences of crimes — is hardly a secret, since the statistics are published weekly by the Beaumont Enterprise newspaper and its website.

The department quite reasonably instructs patrol officers to look for particular kinds of activities in those areas, such as prostitution and drug-dealing, and step up enforcement of any violations, Price told the panel.

But Graves pointedly asked Price about how a policy of “stepped-up” patrolling and surveillance led to a zero tolerance policy. Price answered that he didn’t know if rank-and-file patrol officers even know exactly what the policy is — that the police chief, captains and lieutenants simply tell officers to be on particular lookout in certain parts of town, certain blocks, even particular houses, and make stops or arrests on any criminal activity they encounter.

Graves asked Price when Newman should have known of the existence of such a policy so that he could have included in his original lawsuit.

“What question could he have propounded (during discovery) that would have elicited the answer, ‘We have this zero tolerance policy,'” Graves asked.

Price said that during his deposition of Coffin, Adams (Newman’s attorney), could have asked, “Chief, does the city of Beaumont Police Department adjust its law enforcement based upon high-crime areas?'”

Price argued that the city in no way tried to prevent Newman from finding out information — that in fact, it worked with him during the grievance proceeding against Burke, the officer who was later disciplined.

He also argued that Adams had failed, both in written pleadings and in his argument, to make a connection between the “zero tolerance policy” and the treatment Newman received on the night in question. He called Adams’ focus on the policy a “red herring,” since federal courts have already held that such policies do not violate the Constitution.

“(Adams) says his client got the Dickens beat out of him for having not committed any offense,” which Adams claims wouldn’t have happened “but for” the policy, Graves interjected. “I don’t have a hard time seeing the connection myself.”

But, Graves said, he wasn’t trying to get into a discussion of the policy itself, but when and whether Newman should have properly investigated it for the purposes of his lawsuit. Price argued that since the COMPSTAT program was published in the newspaper and was said to be “common knowledge,” Newman should have suspected it on the night of his detention and arrest.

During Adams’ five-minute rebuttal, Judge Fortunato P. Benavides, who throughout the hearing was most critical of Adams’ argument, asked why it wasn’t incumbent upon Newman to begin investigating the possibility of a zero tolerance policy soon after the incident occurred. Unless Newman had reason to believe the city was deceiving him, Benavides asked, why wasn’t it up to Newman to fully investigate his claims.

“Why should (the city and police department) think that that policy led to the beating of your client?” Benavides asked. “You place the burden on them to tell you that they think  that but for their policy that your guy wouldn’t have got beat up. Why shouldn’t it be your burden? Why isn’t it the burden of the person who’s bringing the claim, who knows that he got beat up, to find out why he got beat and what are the circumstances?”

Adams pointed to the closing arguments made by Jefferson County Assistant Criminal District Attorney Pat Knauth during Guedry’s criminal trial, in which the prosecutor said even his office was surprised by the fact that such a policy existed within the Beaumont police department.

It is unknown when the Fifth Circuit panel will make a ruling. The same court will later hear arguments on the separate appeals of Clark’s September ruling related to the five officers named as defendants.

UPDATE:  On March 15,  the three-judge panel affirmed Judge Clark’s ruling dismissing the city from the lawsuit. Earlier, on March 8, a separate Fifth Circuit panel dismissed Newman’s appeal of  Clark’s granting of summary judgement to the three officers other than Burke and Guedry. The three-judge panel said that appeal was premature.

On Oct. 3, 2012, another 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.

RELATED:  Beaumont police chief says department will rebound from setbacks

Copyright © 2012 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 include law and courts, local government and energy 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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2 Comments on “‘Zero Tolerance’ policy questioned in Newman appeal arguments”

  1. Betty Martin Says:

    Thank you for continuing to cover this case. Your detailed coverage of what is obviously a mishmash of jurisprudence and gross incompetence seems to clarify and neatly sum up the steps taken — and not taken — during this clouded, curiously meandering process we call law in Texas. Good job, Ken!


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