Facts
In 2018, William Vardeman landed at Hobby Airport in Houston, Texas, for a business trip. His family took a later flight, and he returned to the airport to pick them up. While he awaited his family’s arrival, Vardeman made several loops around the passenger pickup area and eventually parked his vehicle. As Vardeman attempted to talk over the phone with his wife and daughter, a traffic officer approached and ordered him to move his vehicle forward.
Once Vardeman began moving his vehicle approximately 30 yards forward, his wife called him and told him the family was standing outside the baggage claim doors. Vardeman got out of the vehicle and opened the tailgate to be ready to load his family’s luggage. Meanwhile, another traffic officer approached and told him to move his vehicle. He told the traffic officer that his wife and daughter were on their way out. She again told him to move his vehicle, but as he was beginning to pull away, he noticed his family walking up to the vehicle.
He got out of the vehicle to reopen the tailgate. As he was beginning to load his family’s luggage, the traffic officer approached him again and said, “I told you to move your f—ing car.” Vardeman explained to the officer that his family was standing quite near, and he would move as soon as their bags were loaded. The traffic officer responded, “I don’t give a f— and you are going to move that car.” The officer then called for assistance.
As Vardeman finished loading his family’s bags and prepared to leave, another traffic officer, defendant Rickey DeWayne Simpson, approached and yelled into Vardeman’s face, “you need to move the f—ing car or I will whip your bitch ass.” Vardeman’s adult daughter, who was holding her baby, attempted to separate the two men by sticking her arm between them, but Simpson “forcefully pushed” her. Vardeman then pushed Simpson away from his daughter and grandchild.
Simpson then aggressively and violently struck Vardeman in the face with a closed fist, knocked him to the ground, and menacingly stood over him, as if he were about to strike again. When Vardeman was able to get off the ground, he called the Houston Police Department to report he had just been verbally and physically assaulted by an airport officer, and then he returned to his vehicle.
Vardeman filed a 1983 claim against Officer Simpson and the City of Houston. The District Court dismissed both claims. The 5th reversed as to Officer Simpson and affirmed the dismissal against the City of Houston.
Analysis
A. Excessive force claim against Officer Simpson
Relevant here, a seizure occurs within the meaning of the Fourth Amendment when an officer applies “physical force to restrain movement, even when it is ultimately unsuccessful.” See SCOTUS California v. Hodari D., 499 U.S. 626 (1991). The appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain, and the amount of force remains pertinent in assessing the objective intent. See SCOTUS Torres.
The district court rejected that a Fourth Amendment seizure had been pled, finding the alleged facts do not support a reasonable inference that Simpson objectively manifested an intent to restrain Vardeman. Instead, the Court concluded the complaint supports only that the officer wanted Vardeman to move along, not to remain, and that Simpson left before Vardeman stood back up. Guiding the district court’s analysis was the Supreme Court’s 2021 decision in Torres. Before deciding if we agree with the district court’s analysis of Torres, though, we discuss some older precedents.
The U.S. Supreme Court stated that not all personal intercourse between policemen and citizens involves seizures of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred. See Terry v. Ohio, 392 U.S. 1 (1968). Consequently, an arrest need not be the officer’s purpose in order for his or her actions to be a seizure.
After Terry, the Supreme Court, in a plurality opinion, applied this analysis to determine whether a person had been seized within the meaning of the Fourth Amendment. See SCOTUS United States v. Mendenhall, 446 U.S. 554 (1980). The Court determined a person has been seized if, given the totality of the circumstances, “a reasonable person would have believed that he was not free to leave.” Examples of such a seizure include “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”
Though the Mendenhall explanation gathered only a plurality, it was adopted by the Court in later cases. Therefore, when deciding whether a seizure has occurred, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.
As its wording shows, the test is objective for whether a seizure occurs when law enforcement officers interact with individuals. The test’s objective standard — looking to the reasonable man’s interpretation of the conduct in question — allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment.
Applying those principles, we see the complaint asserts that Officer Simpson arrived after Vardeman finished loading the luggage and closed the tailgate. The complaint identifies Simpson’s first words as threatening — “You need to move the f—ing car or I will whip your bitch ass” — and alleges they were expressed when Simpson was “within an inch of Vardeman’s face.” Vardeman’s daughter reached between the two men with her arm to create some separation between them. Simpson pushed the daughter, who was holding her baby, and Vardeman pushed Simpson.
Then came Simpson’s blow to Vardeman’s face: Simpson aggressively and violently struck Mr. Vardeman with a closed fist, in the right side of his face with such force it knocked him to the ground. Simpson then proceeded to walk around and stand over Vardeman, in a menacing manner and acting as if he was going to strike Vardeman again while he was still on the ground. It was only when Vardeman’s wife got in front of Simpson did he walk back to the sidewalk away from Vardeman.
In summary, Vardeman alleged that the officer — after being shoved — physically struck the target of his ire, then hovered over him menacingly. The Supreme Court has emphasized that the application of force can be quite brief and still be a seizure: While a mere touch can be enough for a seizure, the amount of force remains pertinent in assessing the objective intent to restrain . . . . Nor does the seizure depend on the subjective perceptions of the seized person . . . . The rule we announce today is narrow. In addition to the requirement of intent to restrain, a seizure by force — absent submission — lasts only as long as the application of force . . . . But brief seizures are seizures all the same. See Torres.
We conclude as follows. The allegations that Simpson punched Vardeman in the face so hard that he fell to the ground, and then Simpson hovered over him for a time in a menacing manner, would, if supported by evidence, allow jurors to find that for some period of time at least, a reasonable person would not believe he was free to leave. The Supreme Court has not required a finding that the officer intended to arrest the person, only that an objective person would perceive that at least briefly, there was no freedom to go.
Though the earlier alleged profane insistence by the officer was for Vardeman to move his vehicle, we see a fact dispute as to whether the encounter had become something of longer duration and for a different purpose, such as at least for being issued a ticket. Respectfully, we conclude the district court erred in holding the complaint did not set out sufficient facts for a claim of excessive force in making a seizure.
II. City of Houston’s liability for Simpson’s actions
To allege a plausible claim under Section 1983 against a municipality, a plaintiff must show that (1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a constitutional right.” See Peterson.
There are three ways to establish a municipal policy for Section 1983 liability:
First, a plaintiff can show written policy statements, ordinances, or regulations. Second, a plaintiff can show a widespread practice that is so common and well-settled as to constitute a custom that fairly represents municipal policy. Third, even a single decision may constitute municipal policy in rare circumstances when the official or entity possessing final policymaking authority for an action performs the specific act that forms the basis of the Section 1983 claim. See Webb.
Of relevance here, to establish a pattern, prior indications cannot simply be for any and all bad or unwise acts, but rather must point to the specific violation in question.” See Estate of Davis. In his complaint, Vardeman provides a list of alleged bad acts by City of Houston employees, jailers, and police officers. None of these incidents, however, are meaningfully related to Simpson’s actions at the airport. The district court rejected the relevance of these alleged incidents, saying they were a hodge-podge of unrelated incidents of Houston police and correctional officer violence.
The complaint does not adequately allege a pattern or practice, and we generally reject Section 1983 claims against a municipality based on one incident. See Sanchez.
We agree with the district court. The complaint does not contain sufficient allegations to make plausible a claim for a pattern or practice of assault. There was no error in dismissing the claim against the City of Houston.
https://www.ca5.uscourts.gov/opinions/pub/22/22-20109-CV0.pdf