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Garcia v. Montgomery Cnty.

United States District Court, D. Maryland

November 5, 2015

MONTGOMERY COUNTY, MARYLAND, OFFICER CHRISTOPHER MALOUF, in his official and individual capacities, OFFICER KEVIN BAXTER, in his official and individual capacities, and CHIEF OF POLICE THOMAS MANGER, in his official capacity, Defendants

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         For 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, Washington, DC.

         For 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, Rockville, MD.

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         THEODORE D. CHUANG, United States District Judge.

         Plaintiff 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

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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 practices.

         Defendants 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 significance.

         Presently 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.


         I. Video Recording of Police Activity

         At 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.

         Soon 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.[1] Garcia was video recording the scene with his Nikon Coolpix 7000, a camera capable of shooting both still photographs and video.

         Garcia 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

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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.

         By this 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 to film.

         At that 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 40-43.

         Garcia 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.

         According 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 backup.

         II. The Arrest of Garcia

         In 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.

         Garcia asserts that when Officer Malouf approached him and asked him what he

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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 50-51.

         Officer 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.

         At some 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 press.

         According 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.

         Garcia 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.

         The 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.

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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.

         Meanwhile, 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.

         At some 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.

         Eventually, 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.

         At 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.

         III. Post-Arrest Events

         On 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.

         Prior 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.

         On 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 him.

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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.

         Defendants 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.

         Garcia 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.

         IV. Procedural History

         On 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

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Graves, who were sued in their official capacities only.

         On 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 Manger.

         On 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 ...

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