Federal panel rules against Burke and Guedry in civil case

December 21, 2012

Law & Courts

In a 2-1 decision, a three-judge federal appeals court panel has denied the appeal by a current and a former Beaumont police officer of a ruling in the civil suit brought against them for violating a man’s Constitutional rights during a traffic stop.

Attorneys for James Cody Guedry and David Todd Burke had asked the appeals court to overturn the summary judgment ruling of U.S. District Judge Ron Clark of Beaumont. In September 2011, Clark ruled that Derrick Newman had provided enough evidence of his claims against the officers stemming from a late-night traffic stop on August 24, 2007,  that those claims should be tried in court. (In the same ruling, 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.

In September, 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. Jefferson County prosecutors have filed a petition for discretionary review of the Ninth Court ruling at the Texas Court of Criminal Appeals. 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:  After denying the prosecution’s petition on Jan. 16, 2013, the Texas Court of Criminal Appeals on Feb. 14, on its own motion, returned Guedry’s case to the Ninth Court of Appeals. On Feb. 26, the Ninth Court issued a mandate in the appeal, returning the case to the Criminal District Court of Jefferson County.

On the final two days of 2014, after Newman signed an affidavit stating he did not want to continue with the criminal complaints, Jefferson County prosecutors dismissed the official oppression charges against Burke and Guedry. As part of his agreement with prosecutors, Burke stipulated that he would not seek employment as a peace officer in Texas for ten years. There was no such stipulation for Guedry, who remains on the Beaumont police force.]

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 U.S. Fifth Circuit Court of Appeals in New Orleans, Clark indefinitely postponed the trial.

During oral arguments in October, the attorneys representing Burke and Guedry — Bruce Cobb, William Conley and Craig Schexnaider — argued that the officers’ actions were “objectively reasonable” given the circumstances they faced on that late 2007 night in a high-crime area of Beaumont, with one of the men in the car, Mario Cole, acting belligerently while being arrested on an outstanding traffic warrant, and a crowd gathering nearby.

The attorneys also argued that Burke didn’t begin to use his baton against Newman until he saw the man struggling with Guedry, then a rookie officer only a few months on patrol, during a pat-down search. The officers maintain that Newman grabbed Guedry’s hand during the search and pulled it toward his crotch, making a course remark. Burke has testified that he saw Newman’s hand moving toward his waistband and believed the man could have been reaching for a weapon.

But Port Arthur attorney Langston Adams, representing Newman, countered that his client had in fact been trying to assist the officers in trying to get Mario Cole to calm down during the altercation. With two separate juries having convicted Burke and Guedry of official oppression, it would be illogical for the federal court to find they had acted with objective reasonableness.

In a 21-page, published ruling (including dissent) issued Friday, the Fifth Circuit panel, noting that in the summary judgment phase they must by law accept the non-movant’s assertions in disputed facts as true, found that Guedry and Burke had failed to overcome the evidence that their actions were not objectively reasonable.

“The officers’ theory that they were trying to prevent serious bodily injury to themselves or others is severely overwrought,” Judge Jerry E. Smith, one of the two jurists in the majority, wrote. “The videos do not show Newman attempting to strike either officer, holding a weapon, or even reaching for his waistband. The officers did not try to warn each other or the other officers that Newman had a weapon, which might be expected if either officer truly thought that at the time.”

“On Newman’s own account,” Smith wrote, “he committed no crime, posed no threat to anyone’s safety, and did not resist the officers or fail to comply with a command. Therefore, taking the facts in the light most favorable to Newman at the summary-judgment stage, the officers’ conduct was objectively unreasonable in light of clearly established law at the time of the incident.”

In a dissenting opinion, Judge Rhesa H. Barksdale wrote that the other two judges on the panel — Smith and Carolyn Dineen King — “engage in ‘Monday-morning quarterbacking’ at its worst” in the cases of Guedry and Burke.

“When this summary judgment record is reviewed correctly, the Officers’ application of measured force in a tense, dangerous and hostile environment, in August 2007 to lawfully arrest a noncompliant suspect was objectively reasonable, shielding them with qualified immunity,” Barksdale wrote.

Barksdale wrote that Newman’s refusal to obey officers’ orders to get back inside the vehicle and his subsequent actions toward Guedryduring the pat-down search made the use of his force against him reasonable under the law at the time of the incident.

Guedry and Burke can seek a rehearing from the Fifth Circuit. Barring that, the case will likely be heard at trial in the Beaumont fedearal courtroom of District Judge Ron Clark.

Last March, a separate 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, another 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 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 to the court of U.S. District Judge Ron Clark for trial. On April 5, during a status conference with the attorneys, Clark set a trial date of June 10.

SECOND UPDATE:  On May 9, attorney Craig Schexnaider filed a notice with the district court stating Burke and Guedry’s intent to file a writ of certiorari appealing the Fifth Circuit denial of a rehearing to the U.S. Supreme Court. On May 13, Judge Clark cancelled the trial date pending the resolution of the writ to the high court.

THIRD UPDATE: On October 7, the U.S. Supreme Court denied the officers’ writ of certiorari , meaning the case goes back to the court of U.S. District Judge Ron Clark.

FOURTH UPDATE: Testimony in the 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.

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 @twitter.com/kenfountain and email me at kenfountain1 (at) gmail (dot) com.

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