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Bretemps v. Town of Brentwood

United States District Court, D. Maryland, Southern Division

March 24, 2014

VERRON FRANCIS BRETEMPS, Plaintiff,
v.
TOWN OF BRENTWOOD, MARYLAND, et al., Defendants

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[Copyrighted Material Omitted]

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For Verron Francis Bretemps, Plaintiff: Terrell N Roberts, III, LEAD ATTORNEY, Roberts and Wood, Riverdale, MD.

For Town of Brentwood, Maryland, David W. Risik, Xzavier Montgomery-Wright, Defendants: Daniel Karp, LEAD ATTORNEY, Karpinski Colaresi and Karp PA, Baltimore, MD.

OPINION

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MEMORANDUM OPINION

Paul W. Grimm, United States District Judge.

Plaintiff Verron Francis Bretemps has lived all his life in the small town of Brentwood, Maryland. He has brought this § 1983 action alleging that he was subject to hostile targeting by the mayor and police chief in retaliation for his opposition to the creation of a Town of Brentwood police force. For example, he asserts that he was cited for violations of the town code, charged with criminal conduct, and arrested--all without any valid justification--in violation of the First and Fourth Amendments. Defendants have moved for summary judgment, arguing that the undisputed facts show that Plaintiff was little more than an annoying gadfly and unrepentant scofflaw whose citations resulted only from actual and blatant violations of the law. Because a reasonable jury could find that Plaintiff was unfairly and improperly targeted, I disagree with Defendants and deny this motion for summary judgment.

I. FACTUAL BACKGROUND

In reviewing a motion for summary judgment, the Court considers the facts in the light most favorable to the non-movant, drawing all justifiable inferences in that party's favor. Ricci v. DeStefano, 557 U.S. 557, 585-86, 129 S.Ct. 2658, 174 L.Ed.2d 490 (U.S. 2009); George & Co., LLC v. Imagination Entm't Ltd., 575 F.3d 383, 391-92 (4th Cir. 2009); Dean v. Martinez, 336 F.Supp.2d 477, 480 (D. Md. 2004). Unless otherwise stated, this background is composed of undisputed facts. Where a dispute exists, I consider the facts in the light most favorable to Plaintiff. See Ricci, 557 U.S. at 585-86; George & Co., 575 F.3d at 391-92; Dean, 336 F.Supp.2d at 480.

" Incorporated in 1922, the Town of Brentwood [the " Town" ] is an economically and culturally diverse community . . . nestled between Queens Chapel Road and U.S. Rte. 1, just outside the Nation's Capital" in Prince George's County. Town of Brentwood, Welcome to the Town of Brentwood, http://www.townofbrentwood-md.us/ (last visited March 21, 2014). The Town covers an area of approximately 0.38 square miles, U.S. Census Bureau, 2013 National Places Gazetteer Files: Maryland, http://www2.census.gov/geo/gazetteer/2013_Gazetteer/ 2013_gaz_place_24.txt (last visited March 21, 2014), and has a population of just over 3,000 people, U.S. Census Bureau, Community Facts, http://factfinder2.census.gov/faces/nav/jsf/pages/ community_facts.xhtml (search for " Brentwood, MD" ) (last visited March 21, 2014). " The town of Brentwood is governed by a Council which consists of the Mayor and four Council members, each elected to serve two year terms." Defs.' Summ. J. Mem. 1, ECF No. 36-1 (citing Compl. ¶ 7, ECF No. 1).[1] At all times

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relevant to this case, Defendant Xzavier Montgomery-Wright was the elected mayor of the Town. Id. (citing Compl. ¶ 4). Plaintiff Verron Francis Bretemps is a life-long resident of the Town and a former elected councilman who owns three properties in the Town. Id. (citing Compl. ¶ 7-8).

This dispute arises out of the creation of a Town police department in 2009, to which Plaintiff vehemently was opposed. Id. (citing Compl. ¶ 10-12). Defendant Wright supported the creation of a police department, id. (citing Compl. ¶ 12). It is undisputed that Plaintiff's opposition to the police department led to repeated, and sometimes heated, disputes between Plaintiff and Defendant Wright. See, e.g., Council Minutes Sept. 8, 2009, at 3, Defs.' Summ. J. Ex. 3, ECF No. 36-6; Council Minutes Oct. 6, 2009, at 5, Defs.' Summ. J. Ex. 5, ECF No. 36-8; Council Minutes Nov. 3, 2009, at 3, Defs.' Summ. J. Ex. 7, ECF No. 36-10. Nor was Plaintiff the only person whose opposition to the establishment of a police force brought him into conflict with Wright. See Council Minutes Sept. 9, 2009, at 4, Defs.' Summ. J. Ex. 4, ECF No. 36-7 (" Mayor Wright caution's [ sic ] this issue has potential for volatility. Need to be security conscious and prepared for outbursts. Suggest police be on hand." ). On October 13, 2009, the Town Council approved a resolution to " reestablish" a Town police department. Council Minutes Oct. 13, 2009, Defs.' Summ. J. Ex. 6, ECF No. 36-9. This did not bring an end to the dispute, though, as a council member representing the swing vote in favor of the police department resigned on January 12, 2010, and Plaintiff ran for election to fill the vacancy. See Bretemps Aff. ¶ 7, Pl.'s Summ. J. Opp'n Ex. 1, ECF No. 46-2.

Defendant David Risik was sworn in as Chief of Police on December 17, 2009. Council Minutes Dec. 17, 2009, Defs.' Summ. J. Ex. 9, ECF No. 36-12. Once in office, Risik undertook a campaign to step up the enforcement of various town code provisions dealing with how residents maintained their properties. See Memorandum from David Risik to Mayor Xzavier Montgomery-Wright 2 (March 5, 2010), Defs.' Summ. J. Ex. 12, ECF No. 36-15 (" Lastly, I have begun enforcement of Section 144-8.1. This Code section prohibits parking on unpaved residential areas, and for the impounding of cars, trailers, and other unregistered and non-operating vehicles." ). As part of this campaign, on March 4, 2010 Risik issued three citations (the " March 4 Citations" ) and Warnings to Tow to Plaintiff for a violation of Town Code § 144-8.1, which prohibits parking a vehicle on an unpaved or insufficiently paved surface, at Plaintiff's property at 3608 Upshur Street. See March 4 Citations, Defs.' Summ. J. Mem. Ex. 10, ECF No. 13; Warnings to Tow, Defs.' Summ. J. Ex. 11, ECF No. 36-14. Plaintiff has produced evidence showing that many other town residents whose vehicles were parked similarly were not cited by Risik. See Bretemps Dep. 86:17-21, Defs.' Summ. J. Ex. 38, ECF No. 36-40; Wright Dep. 50:15, Defs.' Summ. J. Ex. 35, ECF No. 36-37. Risik has stated that his standard practice was to issue a notice of a violation before issuing a citation, and that he frequently would make accommodations for those who had been cited for legitimate code violations. Risik Dep. 40:9 - 41:7, Defs.' Summ. J. Ex. 33, ECF No. 36-35. Plaintiff has stated that he did not receive a notice with respect to the March 4 Citations, Bretemps Dep. 80:4-19. Risik believed that he may have cited and towed

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the car of another resident for violating the same code provision, but the car was returned after the resident " apologized." Risik Dep. 41:20 - 42:3. Plaintiff also argues, at considerable length, that he did not actually violate any code provisions. See, e.g., Pl.'s Summ. J. Opp'n 7-8. Plaintiff contested the citations and prevailed at trial on April 29, 2010; Risik did not appear. Bretemps Dep. 85:3-21.

On March 9, 2010, a confrontation occurred between Bretemps and Risik at a Town Council meeting. At the public comment portion of that meeting, referred to as " suspension of rules," Plaintiff spoke twice and, the second time, exceeded his allotted time. Video Recording of March 9, 2010 Council Meeting (the " Video Recording" ), Defs.' Summ. J. Ex. 13, ECF No. 36-3. According to a video recording of the meeting, after Plaintiff's time expired, Wright says " thank you" several times, each increasing in volume, in a clear attempt to inform Plaintiff that his turn to speak had ended. Id. Eventually, Wright expressly asks Plaintiff to sit down, at which point Risik's voice can be heard off camera shouting at Plaintiff to " sit down or get out!" Id. Plaintiff can be seen to respond but does not appear to raise his voice or become animated, and Plaintiff takes a step back from the podium before Risik enters from off camera speaking loudly and draws within a few inches of Plaintiff. Id. It is not possible to determine what is said, but Plaintiff does not appear to be acting in an aggressive or threatening manner and, almost immediately after Risik steps away from Plaintiff, he sits down. Id. Wright then orders the tape turned off, id., and she has testified that the tape was stopped for several minutes. Wright Dep. 93:18 - 97:19. However, the Video Recording does not appear to have been interrupted. Video Recording. Plaintiff was not cited or arrested at the March 9 meeting.

Two days later, on March 11, 2010, Risik filed an Application for Statement of Charges in the District Court for Prince George's County, charging Plaintiff with one count of violating Md. Code Ann., Crim. Law § 10-201(c)(2), which prohibits " act[ing] in a disorderly manner that disturbs the public peace," and one count of violating Crim. Law § 10-201(c)(3), which prohibits the " fail[ure] to obey a reasonable and lawful order that a law enforcement officer makes to prevent a disturbance to the public peace." Disorderly Conduct Charges, Defs. Summ. J. Ex. 15, ECF No. 36-18. Risik sought an arrest warrant with respect to those charges. Id. When he met with the Assistant State's Attorney, the attorney told Risik that " he just didn't see disorderly conduct," Risik Dep. 75:9-10, and Risik has acknowledged that " the tape doesn't show what I remembered," id. at 75:13-14.

On April 28, 2010, Risik affixed a " Warning to Tow" notice on a vehicle parked at Plaintiff's property on 4105 38th Street. See Warning to Tow, Defs. Summ. J. Ex. 16, ECF No. 36-19; Defs.' Summ. J. Mem. 11; Pl.'s Summ. J. Opp'n 13. The Warning to Tow cited Code § 144-8.1 relating to parking on unpaved surfaces. Warning to Tow, Defs.' Summ. J. Mem. Ex. 16. When Risik arrived at Plaintiff's property on April 30, 2010 with the intent to tow the vehicle, he found that Plaintiff had built a wooden structure entirely surrounding it. Risik Dep. 88:13-18. It appears that Plaintiff was cited for illegally constructing that structure, Bretemps Dep. 114:6-7, but the case was dismissed on a declaration of nolle prosequi, id. at 114:11-12, and ...


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