United States District Court, D. Maryland
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Mannie Garcia, Plaintiff: Ronald G London, LEAD ATTORNEY,
Alison B Schary, Davis Wright Tremaine LLP, Washington, DC;
Robert Corn Revere, PRO HAC VICE, Davis Wright Tremaine LLP,
Montgomery County, Maryland, Chief of Police Thomas Manger,
in his official capacity, Officer Christopher Malouf, in his
official and individual capacities, Officer Kevin Baxter, in
his official and individual capacities, Officer Michael
Graves, in his official capacity, Lieutenant Mark Sheelor, in
his official and individual capacities, Defendants: Patricia
Lisehora Kane, Office of the Montgomery County Attorney,
D. CHUANG, United States District Judge.
Mannie Garcia, an award-winning photojournalist, alleges
that, in June 2011, he was arrested by Montgomery County
Police Department officers for disorderly conduct solely
because he was video recording them as they effected the
arrest of two other people. He was later found not guilty of
that offense. Garcia asserts that by arresting him for
filming, the officers violated his rights under the First and
Fourth Amendments to the Constitution. Garcia also contends
that the video card in his camera, which contains the record
of the events of that night, was unlawfully seized by one of
the officers and never returned. In response to these events,
Garcia filed suit against the officers involved in his
arrest, the Montgomery County Police Department ("
MCPD" ), and various other MCPD officials, asserting
claims under 42 U.S.C. § 1983 for the
alleged First and Fourth Amendment violations relating to his
arrest; a First Amendment retaliation claim, based on his
belief that various police officers were trying to intimidate
him out of pursuing legal action; several other statutory and
common law actions; and a 42 U.S.C. § 1983 claim against
the MCPD for unconstitutional policies, customs, and
paint a very different picture of the events leading to
Garcia's arrest, asserting that Garcia was arrested not
because he was video recording the police, but because, after
a police officer approached him to ask benign questions about
what he was doing, Garcia began to yell and curse, and
continued to do so despite being asked repeatedly to quiet
down. Defendants also deny taking Garcia's video card.
From their perspective, Garcia's arrest does not raise
First Amendment issues about the right to film police
officers, but is instead an attempt to recast a routine
arrest for disorderly conduct as a case of constitutional
pending before the Court are Defendants' Motion for
Summary Judgment, ECF No. 62, and Garcia's Cross-Motion
for Partial Summary Judgment, ECF No. 63. The Court heard
oral argument on the motions on September 9, 2015. For the
reasons outlined below, Defendants' Motion for Summary
Judgment is GRANTED IN PART and DENIED IN PART, and
Garcia's Cross-Motion for Summary Judgment is GRANTED IN
PART and DENIED IN PART.
Video Recording of Police Activity
about 7:30 p.m. on the evening of June 16, 2011, Garcia and
his wife, Vicky Allen, met a friend for dinner at Woomi, a
restaurant in Wheaton, Maryland near Georgia Avenue and
Hickerson Drive. Nearby, at about 8:30 p.m., Carlos Grajeda
and Lee Williams, members of Montgomery County's Civilian
Alcohol Enforcement squad, witnessed a man buying alcohol for
a minor. Grajeda and Williams put out a call for police
officers to assist them in citing the two individuals
involved in the alcohol purchase. Officer Kevin Baxter and
Officer Michael Graves, each in his own patrol car, responded
to the call.
after Officers Baxter and Graves arrived, between 8:40 and
9:00 p.m., Garcia and Allen left Woomi and headed back to
their car, which was parked across the street from the
restaurant. As Garcia crossed the street, he noticed the
police officers and the alcohol suspects, who were about 100
feet, or a block and a half, away. Garcia saw one of the
officers get " a little rough" with one of the
men--the officer " sort of ... push[ed] him" --so
Garcia took out his camera and began video recording. Cross
Mot. Sum. J. Ex. 2 (Garcia Deposition) at 30, ECF No. 63-4;
Mot. Sum. J. Ex. 4 (Garcia Deposition) at 27, ECF No.
62-7. Garcia was video recording the scene
with his Nikon Coolpix 7000, a camera capable of shooting
both still photographs and video.
caught Grajeda's attention. Grajeda could see that Garcia
had something in his hands, but could not identify what it
was, and, in Grajeda's estimation, Garcia was "
acting erratically." Mot. Sum. J. Ex. 2 (Grajeda
Deposition) at 5, ECF No. 62-5. Garcia's supposed strange
behavior " really concerned" Grajeda, in part
because they were in a high-crime area. Id. Garcia,
for his part, maintains that he was behaving normally.
Grajeda pointed Garcia
out to Officer Baxter, who had not noticed him because he was
in the middle of writing a citation for one of the suspects.
When Officer Baxter caught sight of him, Garcia was in a
" very dark" section of the street, near an
alleyway. Mot. Sum. J. Ex. 1 (Baxter Deposition) at 16, ECF
No. 62-4. Garcia appeared to Officer Baxter to be trying to
hide, behavior that Officer Baxter thought was "
suspicious." Id. at 16-17.
point, it was getting dark. Officer Baxter, wanting to get a
better view of Garcia, flashed his police cruiser's
spotlight in Garcia's direction. Once Garcia was
illuminated, Officer Baxter could see that he was holding
what appeared to be a camera. Officer Baxter kept the
spotlight on Garcia for about 10 seconds, while he evaluated
whether Garcia posed a threat to the officers or nearby
civilians. Officer Baxter determined that Garcia was not
doing anything threatening, so he turned off the spotlight
and returned to writing the citation. After being
spotlighted, Garcia went back across the street, in front of
Woomi. According to Grajeda, as Garcia ran across the street
he was " belligeren" and was yelling. Mot. Sum. J.
Ex. 2 at 10. Outside Woomi, Garcia put his camera down on a
newspaper box--hoping for a more stable image--and continued
time, Malik and Efigenia Rashid were sitting in a nearby
parked car with the windows rolled up. Malik Rashid rolled
down his window and politely asked Garcia what he was doing,
to which Garcia responded, " keeping [them]
honest." Mot. Sum. J. Ex. 4 at 32-33. By that point, the
arrest seemed like a " routine" detention: the two
alcohol suspects were seated on the curb, and the officers
were no longer in physical contact with them. Id. at
stayed near the newspaper box, outside Woomi, for two to
three minutes before he walked up the street towards the
officers, stopping when he was directly across from them.
Garcia continued to record what was happening, narrating the
events into his camera. Officer Graves, however, asserts that
Garcia was yelling at both the officers and the Civilian
Alcohol Enforcement team, an assertion Garcia denies.
to Officer Baxter, when Garcia set up across the street from
them, he was standing in another dark area, prompting Officer
Baxter to again shine his spotlight on Garcia to see what he
was doing. Garcia then moved to a third location up the
block, about 35 feet away from the officers. As this was
happening, Officer Graves began to feel that " something
was [not] right." Mot. Sum. J. Ex. 8 (Graves Deposition)
at 14. ECF No. 62-11. Garcia was drawing " all of our
attention," leaving the officers " distracted"
from the task of processing the alcohol suspects.
Id. at 9. Officer Graves accordingly called for
The Arrest of Garcia
response, Officer Christopher Malouf arrived on the scene. He
spoke briefly with Officer Baxter, who informed him that
there was " a subject across the street standing in the
shadows" who " was possibly filming." Mot.
Sum. 1. Ex. 14 (Malouf Deposition) at 5, ECF No. 62-17.
Officer Baxter remarked that he could not see Garcia clearly,
so was not sure if he " posed a threat or not," and
that Garcia was " deterring" him from processing
the alcohol suspects. Id. Officer Malouf walked in
Garcia's direction, but because of the darkness, he could
not actually see Garcia until he was about three to four feet
away from him. Once he was near Garcia, Officer Malouf tried
to ascertain what was going on, asking him, " Can I help
you with anything?" and " Is there any way I can
assist you?" Id. at 15.
asserts that when Officer Malouf approached him and asked him
was doing, he promptly let go of his camera--which he had on
a strap around his neck--opened up his hands to show Officer
Malouf that he was not holding anything, and stated, in a
normal tone of voice, " My name is Mannie Garcia and
I'm with the press." Mot. Sum. J. Ex. 4 at 48, 50.
Although Garcia let go of his camera, it was still recording.
In response, Officer Malouf promptly declared, "
That's it, you're under arrest." Id. at
Malouf, however, tells a very different story. He asserts
that Garcia never identified himself as a member of the
press. Instead, Garcia said " I have a right to be
here" and " you can't tell me to move."
Cross-Mot. Sum. 1. Ex 14 (Trial Transcript) at 55, ECF No.
63-16. Garcia then " became disorderly," yelling
curse words and refusing to answer questions. Mot. Sum. 1.
Ex. 14 at 12. At that point, Officer Malouf moved closer to
Garcia and warned him that if he did not calm down, he would
arrest him for disorderly conduct. Rather than calming down,
Garcia continued to yell and curse, at one point gesturing
towards Officer Baxter while yelling, " This fucking
guy." Id. at 17-18. After trying to calm Garcia
down for several minutes without success, Officer Malouf
decided to arrest him for disorderly conduct, noting that
everyone in the vicinity was now focused on Garcia.
point--whether before Officer Malouf decided to arrest Garcia
or after is unclear--others also heard Garcia begin to yell.
Efigenia Rashid heard Garcia yell so loudly that, although
her car windows were rolled up, it distracted her from the
game she was playing on her tablet. Officer Baxter heard
Garcia yell, " And this fucking guy" while
gesturing in his direction, Mot. Sum. 1. Ex. 1 at 19, while
Grajeda heard Garcia yell, " [a]nd tell those fuckers to
leave me alone, or I'm going to . . .," id.
Ex. 2 at 12. Officer Graves also heard Garcia yelling.
Grajeda remembers Garcia " screaming and yelling"
that he was with the press, id. Ex. 2 at 13, while
Williams heard Garcia yelling something about his First
Amendment rights and identifying himself as a member of the
to Garcia, when Officer Malouf arrested him, he promptly put
Garcia into a choke hold and began to drag him across the
street, towards his police cruiser, an assertion Officer
Malouf disputes. While they were in the middle of the street,
Officer Baxter came up pulled Garcia's arms behind his
back, and handcuffed him. As a result of the choke hold and
being pulled by both officers, Garcia tripped over the curb,
falling on his left knee and tearing his pants. As he was
being held by the neck and dragged across the street, Garcia
called out for his wife and also yelled that Internal Affairs
was " going to have a field day." Mot. Sum. J. Ex.
4 at 59, 65.
further alleges that once they reached the cruiser, Officer
Malouf shoved him against the side of the car, causing him to
hit the cruiser with a " hard impact." Cross-Mot
Sum. J. Ex. 2 at 58-59. Officer Malouf then patted Garcia
down. As part of that process, Officer Malouf instructed
Garcia to spread his legs. When Garcia did so, Officer Malouf
kicked out Garcia's right foot, causing him to lose his
balance and hit his head against the side of the cruiser
before falling to the ground. While this was happening,
Officer Malouf was mocking him, asking him why he was falling
down, and then laughing at him with the other officers.
officers dispute Garcia's allegations relating to the use
of force. Specifically, Officer Malouf denies that he placed
Garcia in a choke hold. Officer Baxter acknowledges that
Garcia fell as the officers took him across the street, but
asserts that Garcia deliberately went limp, in an effort to
" fall to the ground unprompted." Mot.
Sum. J. Ex. 1 at 21. Officer Baxter further contends that
once back at the cruiser, Garcia was " thrashing his
body back and forth" against the cruiser, in an attempt
to injure himself, prompting Officer Malouf to subdue Garcia
by applying force to a pressure point on Garcia's neck.
Id. at 22.
Allen, Garcia's wife, began to approach the scene.
Officer Baxter warned her to stay back or she would be
arrested. Garcia claims that, in response to Allen's
approach, Officer Baxter said, " If that fucking bitch
takes one more step, I'm going to arrest her ass."
Mot. Sum. J. Ex. 4 at 68. In response, Garcia yelled to Allen
to stay back, prompting Officer Malouf to again apply force
to a pressure point, pressing his thumb into Garcia's
neck for about 10-15 seconds, causing Garcia to contort in
pain and forcing his head into the side of the cruiser.
point during the arrest process, Garcia's camera was
removed from around Garcia's neck, and Officer Baxter
took control of it. Pursuant to department policy, Officer
Baxter turned the camera off. He then placed it either in or
on top of the cruiser.
Officer Malouf placed Garcia in the cruiser and transported
him to the police station. According to Garcia, while in the
station parking lot, before taking Garcia inside, Officer
Malouf was " fiddling" with Garcia's camera,
pressing various buttons and opening various compartments,
until he eventually found the video card. Mot. Sum. J. Ex. 4
at 70-71. Garcia contends that Officer Malouf removed the
video card and placed it in his shirt pocket. Officer Malouf
denies doing so. Officer Malouf took Garcia into the police
station, then to the Central Processing Unit, where his
belongings were inventoried, he was fingerprinted, and his
mug shot was taken.
about 3:30 a.m., Garcia was released from custody and picked
up by his wife at the Central Processing Unit. While all of
Garcia's other property was returned to him, the video
card from his camera was not. Although Garcia contends that
he was injured, he did not immediately seek medical
attention. Instead, he went home because, at that point, all
he wanted to do was shower and go to bed. In the days after
his arrest, Garcia had bruising on his left knee as a result
of the incident, but did not have bruises on his neck.
December 16, 2011, Garcia proceeded to a bench trial in the
District Court for Montgomery County, Maryland on the charge
of disorderly conduct. He was found not guilty.
to that trial, Garcia filed a complaint with the MCPD
Internal Affairs Division against Officers Baxter and Malouf
about the events of June 16, 2011. After an investigation
into Garcia's allegations, the MCPD took no disciplinary
action against either officer. Garcia contends that after he
filed his Internal Affairs complain, various MCPD officers
began periodically to park near his house to observe and
intimidate him. Specifically, Garcia alleges that during the
week of December 6, 2011, the week preceding his trial on the
disorderly conduct charge, he twice saw Officer Malouf parked
in front of a house across the street from Garcia's home.
That house had the same house number that Officer Malouf
mistakenly entered as Garcia's address on the June 16,
2011 incident report. Both times, Garcia saw Officer Malouf
remain there for 2-3 minutes, parked in such a way that his
cruiser would not be visible to those inside of the house.
March 19, 2013, Garcia saw another such police cruiser, this
one parked across and one house over from Garcia's home.
Garcia began to video record the occupant, Officer Douglas
Barros, because he believed the officer was there to observe
Officer Barros contends that he was there doing paperwork,
having just dealt with a disorderly conduct incident on a bus
nearby. Officer Barros eventually noticed that Garcia was
video recording him, which he thought was suspicious, since
he had never before had someone film him doing paperwork.
Officer Barros went over to Garcia to " check up"
on him and asked Garcia if he needed any help. Cross Mot.
Sum. J. Ex. 19 (Barros Deposition) at 10, ECF No. 63-21. In
response, Garcia told Officer Barros that he did not need any
help and accused him of harassment. Officer Barros gave
Garcia the name and phone number of his supervisor, then
departed. Garcia never contacted the supervisor because he
" did not want to have any more contact with the
Police." Cross Mot. Sum. J. Ex. 2 at 14.
deny that there was a police department campaign to observe
and intimidate Garcia. According to Officers Baxter and
Malouf, Garcia's street is a shortcut to University
Boulevard, a major road, and Garcia's house is near a
nursing home to which MCPD officers are frequently called. If
there was any regular police presence on Garcia's street,
they contend, it was not because officers were there to
intimidate Garcia, but because officers were using the
shortcut or responding to nursing home calls.
was, however, a topic of conversation among officers. In the
days prior to and during Garcia's disorderly conduct
trial, Officers Baxter and Graves exchanged a series of text
messages about those proceeding. Prior to the trial they
discussed whether Garcia would take a guilty plea, with
Officer Graves remarking that he " hope[d]" Garcia
would " take community service," to which Officer
Baxter replied that he though they " ha[d] a solid
case." Cross Mot. Sum. J. Ex. 22 at 2, ECF No. 63-24.
During the trial, Officer Graves texted Officer Baxter that
Officer Malouf, after seeing a " liquor guy"
testify, declared that the case was " all
bullshit." Id. At some point, Officers Baxter
and Graves joked about going drinking with Garcia, with
Officer Baxter suggesting they " [d]o a couple saki
bombs then go be disorderly," and Officer Graves adding
that they could then " make up a story to make millions
and never work again." Id. at 3. After Garcia
filed his civil suit, Officers Baxter and Graves again
exchanged messages, with Officer Graves informing Officer
Baxter that the suit had been filed and, in response to
Officer Baxter's request, that he had emailed him a link
to a news story about the case. Id. at 4.
December 7, 2012, Garcia filed suit in this Court against
Officers Baxter, Graves, and Malouf, Montgomery County,
Police Chief Thomas Manger, and Lieutenant Mark Sheelor,
alleging eight causes of action: (I) a 42 U.S.C. § 1983
(" § 1983" ) claim for violation of his First
and Fourteenth Amendment rights based on his allegation that
he was arrested for video recording police activity; (II) a
§ 1983 claim for First Amendment retaliation; (III) a
§ 1983 claim for violation of his Fourth and Fourteenth
Amendment rights based on the allegation that he was arrested
and had his property seized without probable cause; (IV) a
§ 1983 claim pursuant to Monell v. Department of
Social Services of the City of New York, 436 U.S. 658,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), against Montgomery
County only; (V) a claim under the Privacy Protection Act, 42
U.S.C. § 2000aa et seq. ; (VI) a common law
false arrest and false imprisonment claim; (VII) a common law
malicious prosecution claim; and (VIII) a common law battery
claim against Officer Malouf only. All individual defendants
were sued in both their individual and official capacities,
with the exception of Chief Manger and Officer
Graves, who were sued in their official capacities only.
August 23, 2013, after Defendants moved to dismiss the
Complaint, the Court (Motz, J.) issued a Memorandum Opinion
dismissing various defendants and claims, and bifurcating
some claims. ECF No. 15. Specifically, the Court dismissed
(1) all claims against Officer Graves and Lt. Sheelor; (2)
all claims against Officer Baxter, except the First Amendment
and retaliation claims; (3) the false arrest/false
imprisonment and malicious prosecution claims against
Montgomery County and Chief Manger; (4) the Privacy
Protection Act claim against all defendants except Montgomery
County; and (5) all claims against officers in their official
capacity, except for Chief Manger. The Court bifurcated for
purposes of discovery (1) all remaining claims against
Montgomery County, with the exception of the Privacy
Protection Act claim, and (2) all claims against Chief
January 20, 2015, Defendants filed a Motion for Summary
Judgment. ECF No. 62. On February 19, 2015, Plaintiffs filed
a Cross-Motion for Summary Judgment, to which Defendants
responded on March 24, 2015. ECF Nos. 63 & 64. Plaintiffs
filed a Reply Memorandum on ...