Attorneys for Burke, Guedry ask appeals court to dismiss Newman case

October 3, 2012

Law & Courts

NEW ORLEANS — After hearing oral arguments Wednesday, a three-judge federal appeals panel will decide whether a Beaumont man can bring to civil trial the two Beaumont police officers whose use of force against him more than five years ago resulted in a set of community-dividing criminal trials.

Langston Adams, seated front, representing Derrick Newman, and Craig Schexanider and William Conley, seated rear, representing David Todd Burke and James Cody Guedry, wait to begin oral arguments before a panel of the U.S. Fifth Circuit Court of Appeals in New Orleans.

Langston Adams, the Port Arthur attorney who represents Derrick Newman, squared off against three Beaumont attorneys representing the officers — Bruce Cobb, William Conley and Craig Schexnaider — in the East Courtroom of the Fifth U.S. Court of Appeals courthouse.

The officers’ attorneys are asking the appeals court to overturn the summary judgment ruling of U.S. District Judge Ron Clark of Beaumont. In September 2011, Clark ruled that Newman had provided enough evidence of his claims against David Todd Burke and James Cody Guedry stemming from a late-night traffic stop on August 24, 2007,  that those claims should be tried in court. (In the same ruling, Guedry Clark dismissed Newman’s claims against three other officers involved in the same incident.)

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 June, the Texas Court of Criminal Appeals ruled that Burke — who retired from the department shortly after his conviction — should receive a new trial, based on arguments that state District Judge Layne Walker erred when he failed to grant a defense motion to strike a potential juror who had expressed doubts about his ability to be impartial.

Last month, the Texas Ninth Court of Appeals in Beaumont upheld Criminal District Judge John B. Stevens Jr.’s ruling that Guedry was entitled to a new trial, based on claims of ineffective counsel. Guedry, who was fired after his conviction, was later reinstated to the department as a community relations officer, pending final resolution of the case. [UPDATE:  On Oct. 10, the Jefferson County Criminal District Attorney’s Office filed a petition for discretionary review of the Ninth Court ruling with the Texas Court of Criminal Appeals. After denying the petition on Jan. 16, 2013, theat court on Feb. 14, on its own motion, returned the case to the Ninth Court of Appeals in Beaumont. On Feb. 26, the Ninth Court issued a mandate in the appeal, returning to the Criminal District Court of Jefferson County.]

In his ruling, Clark, the federal district court judge, 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 that ruling to the Fifth Circuit, Clark indefinitely postponed the trial.

Cobb, the first of the officers’ attorneys to present arguments to the jurists, began by outlining the basic chronology of the 2007 incident, stating that Burke and Guedry used the force necessary to gain Newman’s compliance after a struggle broke out between himself and Guedry, then a rookie police officer only a few months on patrol.

“The question is, what started this?” asked Judge Carolyn Dineen King, referring to the fact that Newman and Guedry have offered differing accounts of what precipitated the struggle:  Guedry maintains that Newman grabbed his hand during the pat-down search and pulled it toward his own crotch, while Newman has testified that he made a course remark to Guedry that angered the officer.

Cobb argued that no matter what might have occurred, Newman was guilty of resisting search — the Class A misdemeanor he was ultimately charged with that night, although Jefferson County prosecutors later dropped the charge — and that his resistance resulted in the officers’ using the force necessary to gain his compliance.

William Conley, a retired police lieutenant-turned-attorney, next argued that the totality of the situation on that late 2007 night — a traffic stop in a high-crime area of Beaumont, with one of the three men in the car, Mario Cole, acting belligerently while being arrested on an outstanding traffic warrant, and a large crowd gathering nearby — was escalating to a point where a “reasonable officer” would be justified in using the force that was used against Newman.

Conley stated that when both Guedry and Burke, who arrived at the scene separately after a call for backup from the original officers, all they knew was there had been a call for assistance, as well as screaming and cursing heard over the police radio. When they arrived, they could see two officers struggling with Mario Cole and two other men, whose intent was unknown to them, standing in the open doorways of their vehicle.

The officers’ actions should be judged on the basis of what was “objectively reasonable,” Conley argued, not on the basis of “20/20 hindsight or Monday-morning quarterbacking.”

Schexnaider, the last of the three attorneys representing the officers (Judge King pointedly said that it was “not a good idea” for them to have split their 20 minutes of argument time), stated that while the dashcam video might have seemed damning to the officers, it offered only a two-dimensional view of what occurred.

He said when Burke arrived, he quickly sized up the scene and was in fact moving to holster his police baton when something caught his attention that caused him to move in to strike Newman. Specifically, he said, Newman’s left hand appeared to move toward the area of his waistband, where police officers know that suspects often hide weapons.

Schexnaider argued that Burke swung his baton only at areas of Newman’s body — like his thighs, arms and buttocks — where there would be little lasting damage but would gain the man’s compliance. In fact, he argued, most of the initial strikes actually hit the rear of the car, where Newman was being searched. But King, the judge, pointed out that it can’t be known whether those strikes first hit Newman before bouncing off onto the car.

Guedry, Schexnaider argued, only used his Taser after a superior officer, Jason Torres, ordered him to. And even then, he argued, it took more than one use of the Taser before Newman finally said, “I give up.” The entire incident lasted only 13 seconds, Schexnaider repeatedly pointed out, while the attorneys involved have spent countless hours examining the various videos.

Furthermore, Schexnaider argued, there was no evidence in the record that Newman suffered any real injury at all from the incident.

“It’s our contention that the officers acted completely reasonably,” he told the judges.

[Read how Schexnaider’s participation in Guedry’s criminal trial factored in Judge John Stevens’ ruling granting Guedry a new trial here.]

Adams, representing Newman, pointed out that separate juries found both Burke and Guedry guilty of official oppression for their actions in the incident. And while it’s true that both convictions were overturned on appeals, neither was overturned on the merits of the case.

If two juries found that the officers were guilty of misdemeanor oppression in their criminal trials, Adams argued, it was illogical to state that they were entitled to qualified immunity for the same actions in the civil case. (New trial dates for Burke and Guedry have not been set.)

Adams argued that the statements heard on the videotapes after force against Newman — including Burke saying to another officer, “If (Guedry) wasn’t going to squeeze him, I was going to split him” — were indicative of a malicious mindset by the two officers.

Likewise, he argued, Guedry’s contention that Newman, after consenting to a pat-down search, would grab the officer’s hand and pull it toward his crotch, saying “Get you some of that,” was “not believable.”

During Adams’ presentation, Judge Rhesa H. Barksdale pointedly asked the attorney whether Newman, who can be seen standing in the car doorway while two officers are trying to subdue Mario Cole — was disobeying a legal order by the officers to get back in the car.

Adams, after some hesitation, agreed that Newman did, in fact, disobey the officers’ commands. But, he argued, Newman can be heard on the video urging Mario Cole to “chill out,” and was in fact trying to assist the officers. “As a matter of public policy,” he argued, citizens should be encouraged to assist police.

Adams said that both Burke and Guedry were able to get their day in court in their separate criminal trials and appeals. “I think justice requires that Derrick Newman get his day in court, too,” he said.

After Schexnaider offered rebuttal to some of Adams’ arguments, Judge King brought the hearing to a close. It is unknown when the panel will make a ruling.

In March, a three-judge Fifth Circuit panel dismissed Newman’s appeal of  Clark’s granting summary judgment to the three other officers — Jason Torres, John Brown and Charles Duchamp. The panel said that appeal was premature.

Later that month, a separate panel affirmed Clark’s May 2011 ruling dismissing the city, City Manager Kyle Hayes and former police Chief Frank Coffin, who had been added to the lawsuit after it was removed from a Jefferson County civil court to federal court in January 2011. The suit was originally filed in state court in November 2008.

UPDATE:  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.

NOTE: A recording of the oral arguments, along with a recording of arguments in an earlier appeal in the case, can be found on the Fifth Circuit Court of Appeals website here.

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

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 and email me at kenfountain1 (at) gmail (dot) com.

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