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IN THE UNITED STATES DISTRICT COURT

 FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

LOUIS HUNTER and §

JANICE HUNTER, §

§

Plaintiffs, §

§

v. § Civil Action No. 7:03-cv-153-R

§

§

CITY OF ELECTRA, TEXAS; §

SCOTT FORCE; JAYSON KAISER; §

and JOSEPH SCHUTZE; §

§

Defendants. §

MEMORANDUM OPINION

Plaintiffs Louis and Janice Hunter have filed suit under 42 U.S.C. §1983 against the City of

Electra, Texas and three of its police officers, Officer Scott Force, Officer Jayson Kaiser, and Officer

Jason Schutze (collectively, the “Defendants”). Plaintiffs allege that the Defendants violated several

of their constitutional rights. Now before the Court is Defendants’ joint motion for summary

judgment on Plaintiffs’ claims (Dkt. No. 33). For the reasons discussed below, the Court GRANTS

Defendants’ joint motion for summary judgment in its entirety.

I. BACKGROUND

On August 5, 2001, Roy Orr, distraught that his girlfriend had ended their relationship,

climbed atop of a 50-foot tall grain elevator in Electra, Texas and threatened to commit suicide by

jumping. (Orr Depo. 7:6 -16:16). Several police officers arrived on the scene and attempted to talk

Mr. Orr down from the precipice. (Id.) A crowd of neighborhood residents gathered across the

street. (Ex. J, RFA 24; Ex. K, RFA 24). 

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS 

WICHITA FALLS DIVISION

FILED

June 29, 2006

CLERK, U.S. DISTRICT COURT

 

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The witnesses to these events are Roy Orr (who thankfully climbed down from the grain elevator); Sarah

Smith and Lowell Smith, the Hunters’ neighbors; and Robert Honzell, the former police chief for the City of Electra who

was the principal negotiator with Mr. Orr during the incident.

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Seventy-four year old Louis Hunter lived across the street from the grain elevator. As the

officers attempted to negotiate with Orr, Hunter walked out of his home and began shouting toward

the scene. Hunter claims that he called out to ask if Mr. Orr had jumped yet. He claims that he

shouted no more than two or three words toward the scene. (Hunter Depo. 45:17-46:19). Other

witnesses to the events claim otherwise. They contend that they heard Mr. Hunter shout several

obscenities at Mr. Orr and threaten to “get him off” the grain elevator himself if he refused to jump.1

(Orr Depo. 10:20-13:9; S.Smith Depo. 12:10-15:9; L.Smith Depo. 10:13-12:23). Witnesses claim

that Hunter then pointed a gun in the direction of the grain elevator, as though threatening to shoot

Mr. Orr. (Orr Depo. 15:7-18; S.Smith Depo. 12:10-15:9; L.Smith Depo. 10:13-12:23). Officers on

the scene also witnessed Hunter shouting at Orr twenty minutes prior to that incident.

Officer Scott Force was present at the scene and believed that Mr. Hunter’s conduct added

unnecessary anxiety to the situation and interfered with the police department’s efforts to negotiate

with Mr. Orr. Officer Force walked across the street and ordered Mr. Hunter to stay where he was

because he was suspected of interfering with an officer’s public duties. (Ex. N). Officer Kaiser then

arrived and verified that Hunter was the man he had seen shouting at Orr twenty minutes previously.

(Id.). Mr. Hunter was ordered to sit down. When he complied, the officers handcuffed him and

seized his firearm. Hunter claims that he was cut during the handcuffing. 

Mr. Hunter’s wife, Janice Hunter, was at home at the time and stepped outside to investigate

the commotion. Mrs. Hunter was holding a flashlight as she exited her home. Witnesses claim that

she either swung the flashlight at the officers or raised it as if to strike them. Because of this, she

 

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Officer Schutze claims that he was not even present for any of the alleged events that occurred that day. 

To prevail in a §1983 action, a plaintiff must prove a causal connection between the alleged constitutional violation

and each defendant's conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976); Thompson v. Steele, 709 F.2d

381, 382 (5th Cir. 1983). Because Plaintiff has not shown any evidence that Officer Schutze was personally

involved in the events of that day, he is entitled to summary judgment on their claims. 

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was arrested for assaulting a public servant. (J.Hunter Depo. 36:1-20). 

The Hunters have now filed suit under 42 U.S.C. § 1983 against the City of Electra and three

of its police officers – Officers, Force, Kaiser, and Schutze. The Hunters allege that they were

unlawfully arrested in violation of the Fourth Amendment. Additionally, Mr. Hunter alleges that

his arrest for interfering with the public duties of a police officer violated his First Amendment

rights. Mr. Hunter also alleges that by confiscating his firearm, the arresting officers violated his

Second Amendment right to bear arms and his Fourteenth Amendment right to procedural due

process. 

II. ANALYSIS

Defendants now have moved for summary judgment on Plaintiffs’ claims. The individual

officers – defendants Force, Kaiser, and Schutze – contend that they are entitled to qualified

immunity on the Hunters’ claims as a matter of law.2

 The officers contend that the Hunters have

either failed to show that they violated their constitutional rights or, alternatively, that their conduct

was objectively unreasonable in light of clearly established law at the time of the arrest.

Additionally, the City of Electra has moved for summary judgment on the issue of municipal

liability. The City argues that the Plaintiffs have failed to present any evidence that would create

a genuine issue of material fact on whether the City itself should be held liable for any constitutional

violations that may have occurred when the Hunters were arrested. In particular, the city contends

that Plaintiff has failed to prove sufficient facts to impose municipal liability on the City. 

 

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A. Summary Judgment Standard

Summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil Procedure

when there is no genuine issue as to any material fact in the case and the moving party is entitled

to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,

322, (1986); Melton v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 559 (5th Cir. 1997).

The party moving for summary judgment bears the initial burden of identifying those

portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together

with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.

See Celotex, 477 U.S. at 323; Lynch Properties, Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th

Cir. 1998). Where the non-movant bears the burden of proof on a claim upon which summary

judgment is sought, the movant may also discharge its initial burden by showing that there is an

absence of evidence to support the nonmoving party’s case. See Celotex, 477 U.S. at 325. Once the

movant has met its initial burden, the non-movant must set forth specific facts, by affidavits or

otherwise, showing that there is a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431-32 (5th Cir.

1998). Conclusory allegations will not suffice as summary judgment evidence. See Hinsley v.

Boudloche, 201 F.3d 638, 643 (5th Cir. 2000). 

Summary judgment will be granted against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial. Celotex, 477 U.S. at 322; Baton Rouge Oil & Chemical Workers

Union v. Exxon/Mobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). When weighing the evidence on

a motion for summary judgment, the court must decide all reasonable doubts and inferences in the

 

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light most favorable to the non-movant. See Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th

Cir. 1988); Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). As

long as there appears to be some support for the disputed allegations such that “reasonable minds

could differ as to the import of the evidence,” the motion for summary judgment must be denied.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

B. Qualified Immunity

The doctrine of qualified immunity shields government employees who are performing

discretionary functions “from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known.” Wilson v. Layne, 526 U.S. 603, 609 (1999) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)); Thompson v. Upshur County, 245 F.3d 447, 456 (5th Cir. 2001). To properly invoke the

defense of qualified immunity, a government official must show that the challenged conduct

occurred while he or she was acting in his or her official capacity and that such action was within

the scope of his or her discretionary authority. Beltran v. City of El Paso, 367 F.3d 299, 303 (5th Cir.

2004). Once a defendant has properly invoked the defense of qualified immunity, the burden rests

on the plaintiff to show that the defense does not apply. McClendon v. City of Columbia, 305 F.3d

314, 323 (5th Cir. 2002) (en banc).

A court must evaluate a qualified immunity defense in proper sequence. The threshold

question is whether, on the plaintiff’s version of the facts, he or she has shown that the officer’s

conduct violated a currently-existing constitutional right. See Brosseau v. Haugen, 543 U.S. 194,

197 (2004) (per curiam) (citing Saucier v. Katz, 533 U.S. 194, 200 (2001)); see also, McClendon,

305 F.3d at 323 (with respect to the first step of the analysis, the court must analyze the law using

 

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“currently applicable” constitutional standards) (citations omitted). As the Supreme Court has

explained, “[d]eciding the constitutional question before addressing the qualified immunity question

promotes clarity in the legal standards for official conduct, to the benefit of both the officers and the

general public.” Wilson, 526 U.S. at 609.

If the plaintiff fails to allege a constitutional violation, then the defendant is entitled to

qualified immunity and the court need not inquire any further. Saucier, 533 U.S. at 201. If, however,

the plaintiff has shown a violation of a constitutional right, the court must then determine whether

the defendant’s actions were objectively reasonable in light of clearly established law at the time of

the alleged violation. Id.; Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001).

The requirement that the law in question be “clearly established” is designed to ensure that

officers have fair notice of proscribed conduct. See Hope v. Pelzer, 536 U.S. 730, 739 (2002). As

the Supreme Court has explained, “[t]he relevant, dispositive inquiry in determining whether a right

is clearly established is whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier, 533 U.S. at 202 (citing Wilson v. Layne, 526

U.S.at 615). “This is not to say that an official action is protected by qualified immunity unless the

very action in question has previously been held unlawful; but it is to say that in the light of

pre-existing law the unlawfulness must be apparent.” Hope, 536 U.S. at 739 (citing Mitchell v.

Forsyth, 472 U.S. 511, 535, n.12 (1985) and Anderson v. Creighton, 483 U.S. 635, 640 (1987)). 

C. Individual Liability

The Court will now determine if the defendant police officers are entitled to qualified

immunity on Plaintiffs’ claims. As explained below, the Court finds that the officers are entitled to

qualified immunity on all claims.

 

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1. False Arrest of Louis Hunter

The crux of Mr. Hunter’s false arrest claim is that he was unlawfully arrested without

probable cause. The Fourth and Fourteenth Amendments require state police officers to have

probable cause before performing a custodial arrest. See Martin v. Thomas, 973 F.2d 449, 453 (5th

Cir.1992). An officer commits a false arrest if the arrest is not supported by probable cause. See

Sorenson v. Ferrie, 134 F.3d 325, 328 (5th Cir. 1998). 

“Probable cause is present when the totality of the facts and circumstances within a police

officer’s knowledge at the moment of arrest are sufficient for a reasonable person to conclude that

the suspect had committed or was committing an offense.” Godson v. City of Corpus Christi, 202

F.3d 730, 740 (5th Cir. 2000) (citation omitted). In general, the requirements of probable cause are

met when an offense occurs in an officer’s presence. See Mossey v. City of Galveston, Tex., 94

F.Supp.2d 793, 797-98 (S.D.Tex. 2000) (citing, inter alia, Hunter v. Clardy, 558 F.2d 290, 291 (5th

Cir.1977)). “Even law enforcement officials who reasonably but mistakenly conclude that probable

cause is present are entitled to [qualified] immunity.” Haggerty v. Texas Southern University, 391

F.3d 653, 656 (5th Cir. 2004) (citation omitted).

The undisputed evidence in the record indicates that Mr. Hunter was arrested under §38.15

of the Texas Penal Code, which prohibits interference with the public duties of a peace officer.

Section 38.15 makes it a misdemeanor offense for an individual to interfere with a police officer’s

performance of public duties. In relevant part, the statute provides:

(a) A person commits an offense if the person with criminal negligence interrupts,

disrupts, impedes, or otherwise interferes with:

(1) a peace officer while the peace officer is performing a duty or exercising

authority imposed or granted by law;...

 

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Tex. Penal Code §38.15 (2001). A statutory exception exists, however, if the alleged “interruption,

disruption, impediment or interference... consisted of speech only.” Tex. Penal Code §38.15(d). 

After reviewing the parties’ briefing and the evidentiary record, the Court finds that Mr.

Hunter has not presented sufficient evidence to create a genuine issue of material fact issue on

whether the individual officers had probable cause to arrest him for violating §38.15. In other

words, the evidence, even when considered in the light most favorable to Hunter, does notshow that

a constitutional violation occurred. The undisputed facts indicate that Hunter repeatedly interfered

with the officers’ attempts to negotiate with Orr. His interference also visibly agitated Mr. Orr in

a manner that the officers wished to avoid. Officers had already ordered Mr. Hunter to go back to

his home when he re-emerged from his home with a firearm and once again shouted at Roy Orr in

a taunting manner. He then appeared to point his firearm in Orr’s direction. The arresting officers

– Officers Force and Kaiser – independently witnessed the relevant acts and together determined that

Mr. Hunter had violated §38.15. Taken together, these acts would have given the officers probable

cause to arrest Hunter for interfering with their attempt to negotiate with Mr. Orr.

Hunter argues that the Defendants’ motion for summary judgment on his false arrest claim

should be denied for three reasons. First, Hunter claims that despite what the police allege, he never

intended to shoot Mr. Orr or even discharge his firearm. He further alleges that he never threatened

to “shoot” Orr, even though several witnesses claim that he did. In any event, Hunter’s true intent

in noisily emerging from his home with a firearm and raising it in Orr’s direction does not raise a

genuine issue of material fact that would have affected whether the officers who observed him had

probable cause to arrest him for interfering with their public duties. 

Second, Mr. Hunter also disputes the type of firearm he used during the incident. He claims

 

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that he used a small handgun, but that a lone police report described it as a rifle. A small gun, he

argues, would have been impossible for the police officers to see clearly, and thus it would have

been unreasonable for them to consider him to be interfering. Again, what type of gun he used at

the time is not a material fact that would have affected whether the officers had probable cause to

arrest him. It is undisputed that the officers saw Hunter point something that looked like a firearm

in Orr’s direction.

Third, Mr. Hunter argues that the officers violated his First Amendment rights when they

arrested him. Although it is true that §38.15 specifically exempts people from liability when the

alleged “interruption, disruption, impediment or interference... consisted of speech only,” see Tex.

Penal Code §38.15(d), Hunters was arrested for his conduct and not only his speech. Hunter

approached the scene on several occasions; he was repeatedly told by police to back away; he

taunted and threatened Roy Orr; and he brandished a gun and pointed it in Orr’s direction. These

acts are undisputed and demonstrate that he was arrested for more than mere words. Though his

conduct, which included noisily brandishing a firearm and pointing it in Orr’s direction, Hunter

voluntarily removed himself from the protection of §38.15(d) and could lawfully be arrested under

the other provisions of §38.15.

Despite viewing the evidence in the light most favorable to Hunter, the Court finds that he

has not shown that he was unconstitutionally arrested without probable cause. Based only on the

undisputed evidence in the record, a reasonable officer observing the scene could have believed with

fair probability that Hunter – who was armed and who continued to disrupt the officers’ negotiations

after having previously been warned to not interfere with a tense and dangerous situation – had

interfered with officer's duties in violation of §38.15(a)(1) of the Texas Penal Code. See Haggerty,

 

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391 F.3d 657-58. Because Mr. Hunter has failed to allege a constitutional violation, the Electra

police officers are entitled to qualified immunity on his false arrest claim. 

2. False Arrest of Janice Hunter

Defendants have also moved for summary judgment on Ms. Janice Hunter’s claim that, like

her husband, she was unlawfully arrested. At the time of her arrest, Mrs. Hunter was told that she

was being taken into custody for assaulting a police officer. As noted above, to evaluate Mrs.

Hunter’s claim of false arrest, the Court must determine whether her arresting officers had probable

cause to believe that she had committed an assault against an officer. Under the Texas statutory law,

an assault includes the situation in which one “intentionally or knowingly threatens another with

imminent bodily injury...” Tex. Penal Code §22.01(a)(2) (West 2002). “Threats may be

communicated by actions, words or deeds.” Berry v. State, 579 S.W.2d 487, 489 (Tex.Cr.App.

1979). 

The police officers claim and multiple witnesses corroborate that Janice Hunter either swung

a flashlight at the officers who were arresting her husband or, at the very least, lifted the flashlight

over her head in a threatening manner. (L.Smith Depo. 5:7-20; S.Smith Depo 16:20-24). In her

responsive briefing to the Court, Mrs. Hunter claims that she merely held the flashlight throughout

her entire interaction with the police. (Pl.’s Resp. Br. at 17, citing J.Hunter Depo. 28-29, 35-38).

This dispute, she argues, creates a genuine issue of material fact as to whether the police had

probable cause to arrest her for assault. (Id.). On closer inspection, the excerpts that she cites from

her deposition – the only excepts included in the record – do not pertain to the manner in which

Mrs. Hunter interacted with the police on the scene as her husband was being arrested. In fact, the

deposition excerpts that she includes in the record omits all mention of that interaction. See Jt. App.

 

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Ex. P (omitting pages 30-34 of Janice Hunter’s Deposition). Therefore, her assertion that she never

raised the flashlight in a threatening manner is a mere conclusory statement that cannot serve as

competent summary judgment evidence. For that reason, Mrs. Hunter has not presented competent

summary judgment evidence that would create a genuine issue of material fact of whether she made

a threatening gesture with the flashlight. 

To the extent that Mrs. Hunter has alleged that her arrest for assault was “unreasonable” (see

Compl. at 8 ¶40), she fails to recognize that the Fourth Amendment only requires that an arrest be

authorized under law and supported by probable cause, regardless of how trivial and innocuous the

alleged criminal conduct may be. If an officer has probable cause to believe that an individual has

committed even a very minor criminal offense in his presence, he or she may arrest the individual

without violating the Fourth Amendment. Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001)

(woman’s arrest for failure to wear a seatbelt – an arrestable offense under state law – “was surely

‘humiliating,’... but it was no more ‘harmful’ [to her ‘privacy or physical interests’] than the normal

custodial arrest.”). 

Accordingly, the Court finds that viewing the undisputed evidence in the light most favorable

to Mrs. Hunter, she has failed to show a Fourth Amendment violation and the defendant police

officers are entitled summary judgment on the issue of qualified immunity.

3. Mr. Hunter’s Second and Fourteenth Amendment Claims

Hunter argues that the Electra police officers violated his constitutional rights under the

Second and Fourteenth Amendments when they seized and confiscated his firearm at the time of his

arrest. In particular, Hunter alleges that the confiscation of his weapon violated his Second

Amendment right to bear arms and constituted an unconstitutional deprivation of property without

 

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due process of law. 

The Fifth Circuit has recognized that the Second Amendment “protects the right of

individuals, including those not then actually a member of any militia or engaged in active military

service or training, to privately possess and bear their own firearms.” United States v. Emerson, 270

F.3d 203, 260 (5th Cir.) cert. denied, 536 U.S. 907 (2002). However, the right to bear arms is

subject to “limited, narrowly tailored specific exceptions or restrictions for particular cases.” Id. at

261. It is not illegal, however, for a police officer to seize an arrestee’s weapon if the officer is

making a custodial arrest or reasonably believes that officer or public safety requires such a seizure.

“So long as the requirements of the Fourth Amendment are met, police officers may... confiscate

guns that they believe have been used to commit a crime. Such a search and seizure is a reasonable,

necessary restriction on an individual's Second Amendment right to bear arms.” Dickerson v. City

of Denton, 298 F.Supp.2d 537, 540 (E.D.Tex. 2004). Because Hunter was being lawfully arrested

when officers confiscated his gun, he cannot show that his Second Amendment rights were violated.

Similarly, Hunter cannot show that his Fourteenth Amendment rights to procedural due

process were violated. The due process clause of the Fourteenth Amendment states that [n]o state

may “deprive any person of life, liberty, or property, without due process of law.” U.S. CONST.

Amend. XIV, § 1. The Supreme Court has held that “an unauthorized intentional deprivation of

property by a state employee does not constitute a violation of the procedural requirements of the

Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the

loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Assuming that Hunter had a

protected interest in his firearm, he clearly received the minimum measure of procedural protection

required under the circumstances since he could always have sued the officers for conversion in tort

 

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– a remedy that has already been held to be an adequate post-deprivation remedy. See Dickerson,

298 F.Supp.2d at 540; Murphy v. Collins, 26 F.3d 541, 543-44 (5th Cir. 1994). For that reason,

Hunter has not alleged a constitutional violation in this instance. 

D. Municipal Liability

The Hunters claim that the City of Electra’s policies, customs, or procedures resulted in the

violation of their Constitutional rights. They claim that their lawsuit demonstrates a pattern and

practice of constitutional violations by the city’s police officers. The City of Electra has moved for

summary judgment on this claim. 

A municipality is not vicariously liable under §1983 for the unconstitutional acts of its

officials. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). Rather, to impose

municipal liability under §1983, a plaintiff must identify three elements: “a policymaker; an official

policy; and a violation of constitutional rights whose ‘moving force’ is the policy or custom.” Id.

at 578 (quoting Monell v. New York City Dep't of Social Services, 436 U.S. 658, 694 (1978)). 

Plaintiffs’ claims for municipal liability fail for two independent reasons. First, and most

obviously, the claimants have not shown that their constitutional rights were violated. Second,

assuming arguendo that they could show a constitutional violation, they have presented no

competent summary judgment evidence that a policy or custom that resulted in their alleged

violation of constitutional rights. The only evidence that they present to show that a policy or

custom exists is their attorney’s affidavit which states that nine other §1983 lawsuits have been filed

against the City of Electra over the past decade. (Pl.’s Resp. Br. at 12, citing Bunch Aff. ¶3 (Ex.

O)). This evidence is insufficient to demonstrate an official “policy” or “custom,” especially where

the Hunters cannot show that the city was found liable in any of those instances. The Hunters’

 

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evidence therefore does not create a genuine issue of material fact that the City of Electra should be

found liable as a municipality. 

III. CONCLUSION

For the foregoing reasons, the Defendants’ motion for summary judgment is GRANTED

in its entirety. A final judgment will issue by separate order.

IT IS SO ORDERED

ENTERED: June 29, 2006

___________________________________

HON. JERRY BUCHMEYER

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

 

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