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Hicks v. Ferreyra

United States District Court, D. Maryland, Southern Division

June 10, 2019

NATHANIEL HICKS, Plaintiff,
v.
OFFICER GERALD L. FERREYRA, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          PAUL W. GRIMM UNITED STATES DISTRICT JUDGE.

         United States Park Police (“USPP” or “Park Police”) Officer Gerald L. Ferreyra pulled over behind a parked vehicle along the side of Interstate 295 North on July 11, 2015 and, when he saw a handgun lying on the front seat, he drew his weapon. The driver, Plaintiff Nathaniel Hicks, a Secret Service agent, showed his credentials and explained that he was on assignment waiting to lead a motorcade that was approaching, and Officer Ferreyra verified that he was indeed an on-duty Secret Service agent. Yet, according to Agent Hicks, Officer Ferreyra continued to detain him unreasonably (by holding onto his credentials and weapons) after Officer Brian Phillips arrived to assist, and after the Park Police's supervisor, whom Officer Ferreyra had asked to report to the scene, arrived, and even after the motorcade passed. And, within minutes after Agent Hicks left the scene, Officer Phillips pulled him over, allegedly for driving erratically and talking on a cellular phone while driving. That second stop was brief but, in Agent Hicks's opinion, still longer than necessary, because Officer Phillips knew that he was a Secret Service agent who was not prohibited from using his phone while driving and, according to Agent Hicks, he was not driving erratically.

         Agent Hicks filed suit against Officers Ferreyra and Phillips, alleging that they detained him without “probable cause or even a reasonable, articulable suspicion” twice, in violation of his Fourth Amendment rights (a claim brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389, 397 (1971)), and did so as part of a conspiracy to “prevent[] him from discharging duties related to his position as a federal officer, ” in violation of 42 U.S.C. § 1985(1). Am. Compl. ¶¶ 1, 7-8, 13-14, 57, 65 ECF No. 49-1; see also Compl. 1, ECF No. 1. Defendants moved to dismiss or for summary judgment, on the basis of qualified immunity, with regard to the claims stemming from the first detention only. ECF No. 37. I denied the motion because it was not clear at the time that Defendants had probable cause for Plaintiff's continued detention during the first stop. Apr. 11, 2017 Mem. Op. & Order 1, ECF No. 44. Now pending is Defendants' Motion for Summary Judgment on both counts of the Amended Complaint. ECF No. 78.[1] Defendants still have not demonstrated that, based on the record before the Court when viewed in the light most favorable to Agent Hicks, they “act[ed] in objectively reasonable reliance on existing law” in either detention. See Queen v. Prince George's Cty., 188 F.Supp.3d 535, 541 (D. Md. 2016) (quoting Rockwell v. Mayor & City Council of Baltimore, No. RDB-13-3049, 2014 WL 949859, at *8 n.10 (D. Md. Mar. 11, 2014)). Therefore, I once again cannot find that Defendants are entitled to qualified immunity on the Bivens claim. But, Agent Hicks has not shown that an exception to the intracorporate conspiracy doctrine applies, and consequently, he cannot prevail on his § 1985(1) civil conspiracy claims as a matter of law. Accordingly, I will grant Defendants' motion as to Count II while denying it as to Count I.

         Background

         Agent Hicks sat in his government-assigned 2014 Chevrolet Impala on the shoulder of Interstate 295 North in Maryland on July 11, 2015 at approximately 6:00 a.m., waiting to lead a motorcade for then-Secretary of the U.S. Department of Homeland Security Jeh Johnson.[2] Defs.' Stmt. of Facts ¶¶ 1-2, 12, 15-16, ECF No. 78-1, at 2-8; Pl.'s Opp'n 1-3. According to Hicks, his vehicle had a “police antenna[] on the corner of the hood” and a “strobing bar[] in the middle of the window above the trunk, ” and its strobing bar and emergency lights were illuminated. Hicks Dep. 85:15-21, 87:2-10, ECF No. 78-4.[3] When Park Police Officer Ferreyra saw the vehicle, he pulled over behind it and approached the vehicle. Defs.' Stmt. of Facts ¶¶ 2-3. Seeing a handgun on the front passenger seat, Officer Ferreyra drew his weapon, after which Agent Hicks quickly identified himself, showed his credentials, and explained that he would be leading a motorcade. Id. ¶¶ 7-8, 12, 14, 16; Pl.'s Opp'n 3.

         Officer Ferreyra took the credentials and the weapon. Defs.' Stmt. of Facts ¶¶ 11, 14; Pl.'s Opp'n 4. The credentials included a photograph of Agent Hicks and a description of the mission. Ferreyra Dep. 92:12-19, ECF No. 78-3; Hicks Dep. 95:5-15, ECF No. 78-4.[4] They confirmed for Officer Ferreyra that Agent Hicks was a Secret Service agent, although “it was very difficult [for him] to focus” because he “almost shot a police officer, ” that is, Agent Hicks, before seeing his credentials. Ferreyra Dep. 96:1-97:7. Therefore, he wanted “to go back to [his] cruiser, verify everything [he] need[ed] to verify, ” including “who [Hicks] is, because [Ferreyra had] had cases with police impersonators before.” Id. Officer Ferreyra admitted in his deposition that he knew that Agent Hicks “was on duty” as a Secret Service Agent “[w]ell before . . . the motorcade came through, approximately 15 to 20 minutes before.” Id. at 312:4-18.

         At some point early in his encounter with Agent Hicks, Officer Ferreyra called for assistance on scene, and Officer Phillips arrived five to thirteen minutes later. Defs.' Stmt. of Facts ¶ 21; Ferreyra Dep. 146:12-147:14; Phillips Dep. 30:6-16, ECF No. 78-5. Officer Ferreyra promptly informed Officer Phillips that Agent Hicks was a Secret Service agent. Phillips Dep. 35:4-16, 37:10-21; see also Ferreyra Dep. 149:4-13 (stating that Phillips “had to have known [that Hicks was a Secret Service Agent], because I think I said it over the air”). Officer Ferreyra also asked his supervisor, Sergeant Timothy Wallace, to report to the scene, and in doing so informed him that “he had a Secret Service agent pulled over on the side of the road.” Lt. Wallace Dep. 19:15-21, ECF No. 80-9. Officer Ferreyra testified in his deposition that he wanted his supervisor to assess the situation because he knew there would be an investigation into his decision to draw his weapon, and because he and Agent Hicks had not been in agreement on the circumstances of the encounter. Ferreyra Dep. 111:4-20, ECF No. 81-3 (sealed); see also Ferreyra Dep. 145:12-15.

         According to Defendants, they “disengaged themselves from Agent Hicks” once Sergeant Wallace arrived, and it was the supervisor who detained Agent Hicks from that point forward. Defs.' Stmt. of Facts ¶¶ 27-28 (citing Ferreyra Dep., 153:19-154:18 (stating that, when Phillips was talking to Hicks before Wallace arrived, Ferreyra “stood in between . . . [his] cruiser and Hicks's vehicle waiting on the escort, but [he] wasn't going back up there to talk to Hicks anymore, [he] was done with him”); Hicks Dep. 113:20-114:7 (“Once Officer Wallace arrived on the scene and was at my window, Phillips and Ferreyra had retrieved [sic] back to their vehicles.”); Phillips Dep. 59:17-22 (stating that, approximately ten minutes after Sergeant Wallace began speaking with Agent Hicks, Officer Phillips and another officer present, Officer Benz, “decided that [they] were going to leave”); Wallace Dep. 53:21-54:13 (stating that, once he arrived at the scene, he did not see Ferreyra interact with Hicks and did not remember Phillips interacting with Hicks; explaining that “[t]ypically, in a scene like this, when a supervisor is on scene, we would treat it like a lot of other situations where, basically, the officer at that point shouldn't have direct contact with the complainant [i.e., Hicks]” and Wallace “become[s] the primary officer” at the scene)). Officer Ferreyra also testified that, even before Sergeant Wallace arrived, he had informed Agent Hicks that he was free to go and returned his credentials and his weapon, but Agent Hicks remained because he was waiting for the motorcade. Ferreyra Dep. 150:5-6, 18-19, 152:11-12 (“He told me he was waiting on an escort there . . . . At that point he already had his gun, he already had his creds. . . . I told him, “You do what you got to do. If you decide to leave, go ahead.”).

         The parties agree that, forty to sixty minutes after Officer Ferreyra first detained him, it was Sergeant Wallace who informed Agent Hicks that he was free to go. Defs.' Stmt. of Facts ¶¶ 31-32; Pl.'s Opp'n 6. But by then, the motorcade already had passed at about 6:40 a.m. Defs.' Stmt. of Facts ¶¶ 21, 26, 30; Pl.'s Opp'n 5-6. Notably, Agent Hicks testified in his deposition that he was not free to go when the motorcade passed because Defendant Ferreyra did not return his credentials and his weapon until ten to fifteen minutes later. Hicks Dep. 128:4-129:11, 214:14-19.

         At 6:59 a.m., within minutes of when Agent Hicks left the scene, Officer Phillips pulled him over again, after observing him driving while talking on a cellular phone. Defs.' Stmt. of Facts ¶¶ 34-36; Pl.'s Opp'n 6; Phillips Dep. 79:5-12, 82:20-83:6. According to Officer Phillips, he also pulled him over because he observed the vehicle “hit the rumble strips, abruptly went back into the right lane and then, later, . . . cross over the white line and basically drive in the shoulder again.” Phillips Dep. 80:18-81:15. He testified in his deposition that he left the first stop before Agent Hicks and he did not recognize Agent Hicks or his vehicle when he initially pulled him over a second time. Id. at 80:12-18, 141:2-14. Agent Hicks testified that Officer Phillips told him: “I noticed when you departed the scene you were on the phone. It's against the law in the State of Maryland for an officer to be on the phone.” Hicks Dep. 138:8-12.

         Regardless whether Officer Phillips initially knew it was Agent Hicks's vehicle, the Park Police recognized Agent Hicks “when he approached the vehicle, ” yet demanded his license and registration. Defs.' Stmt. of Facts ¶¶ 37-38; see Pl.'s Opp'n 6-7. He detained him for “a few minutes” and then returned his license and registration and released him. Defs.' Stmt. of Facts ¶¶ 37-8, 40; see Pl.'s Opp'n 6. Agent Hicks was too far behind the motorcade to join it. Pl.'s Opp'n 6.

         Standard of Review

         Summary judgment is proper when the moving party demonstrates, through “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials, ” that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A); see Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th Cir. 2013). If the party seeking summary judgment demonstrates that there is no evidence to support the nonmoving party's case, the burden shifts to the nonmoving party to identify evidence that shows that a genuine dispute exists as to material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 & n.10 (1986). The existence of only a “scintilla of evidence” is not enough to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Instead, the evidentiary materials submitted must show facts from which the finder of fact reasonably could find for the party opposing summary judgment. Id.

         Evidence Before the Court

         Defendants insist that, “[i]n his Opposition, Agt. Hicks has produced nothing, except for his own self-serving deposition testimony, speculation, or conjecture that contradicts the sworn statements of the other witnesses in this case upon which Defendants' Motion rests.” Defs.' Reply 3. It is true that “[t]he nonmoving party . . . cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). And, “[i]t is well established that ‘[c]onclusory and hearsay evidence does not provide support sufficient to defeat a summary judgment motion.'” Dewitt v. Clean Harbors Envtl. Servs., Inc., No. RDB-16-1705, 2017 WL 3116609, at *6 (D. Md. July 21, 2017) (quoting Mungro v. Giant Food, Inc., 187 F.Supp.2d 518, 523 (D. Md. 2002)). Additionally,

[u]nder the sham affidavit doctrine, “a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party's earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity.”

Zimmerman v. Novartis Pharmaceuticals Corp., 287 F.R.D. 357, 362 (D. Md. 2012) (quoting Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999)). But, “[a]pplication of the sham affidavit rule at the summary judgment stage ‘must be carefully limited to situations involving flat contradictions of material fact.'” Id. (quoting Mandengue v. ADT Sec. Sys., Inc., No. ELH-09-3103, 2012 WL 892621, at *18 (D. Md. Mar. 14, 2012)). Also, if “opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

         Thus, Defendants are correct that Agent Hicks cannot defeat their motion using statements based on speculation or conjecture, or statements that contradict his own, earlier testimony. See id.; Beale, 769 F.2d at 214. Nonetheless, Agent Hicks certainly may testify as to his first-hand recollection of events, even if his recollection is contrary to that of all other witnesses, as it is for the finder of fact to weigh such testimony and assess the credibility of witnesses. See Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002) (stating that court does not “weigh[] the evidence or assess[] the witnesses' credibility” in deciding a summary judgment motion).

         Defendants assert that, while Agent Hicks testified that “Sgt. Wallace arrived on the scene after the motorcade left the area of the incident, ” Defs' Reply 3, Officer Ferreyra testified to the contrary, that Sergeant Wallace was on the scene when the motorcade passed, id. at 4. As Defendants acknowledge, Agent Hicks testified in his deposition that “[t]he motorcade had actually left prior to [Sergeant Wallace] getting there.” Hicks Dep. 121:2-5. Whether Sergeant Wallace was present when the motorcade passed is simply a dispute of fact, and Officer Ferreyra's testimony on its own does not negate Agent Hicks's. See Dennis, 290 F.3d at 644-45.

         Defendants insist that other evidence also places Sergeant Wallace at the scene when the motorcade passed: Sergeant Wallace and Agent Hicks both testified that Sergeant Wallace arrived while Agent Hicks was talking on his phone; Agent Hicks himself testified specifically that he was talking to ATSAIC (Assistant to the Special Agent in Charge) Robert Keane, a call that Agent Hicks's call log showed lasted from 6:32 to 6:50 a.m.; and Agent Hicks admitted that the motorcade passed around 6:40 a.m. See Wallace Dep. 34:15-20; Hicks Dep. 112:4-7, 204:2- 205:17; Pl.'s Opp'n 5. This undisputed evidence establishes that Sergeant Wallace arrived between 6:32 and 6:50 a.m. and the motorcade passed at 6:40 a.m. Thus, Sergeant Wallace could have arrived after 6:32 but before 6:40, such that he was present when the motorcade passed. Yet he also could have arrived after 6:40 but before 6:50 and not been present when the motorcade passed. Therefore, although Agent Hicks and Defendants “tell two different stories, ” Agent Hicks's story is not “blatantly contradicted by the record, so that no reasonable jury could believe it.” See Scott, 550 U.S. at 380. Consequently, taking the facts in the light most favorable to Plaintiff for purposes of deciding Defendants' motion, the Court must adopt his version of the facts, see id.: Sergeant Wallace arrived while Agent Hicks was on the phone with his supervisor but after the motorcade passed. As the discussion below shows, however, which came first, the supervisor or the motorcade, is not material to the resolution of the issue before the Court-whether Defendants detained Agent Hicks during the first stop longer than necessary to ascertain whether a crime was being committed. And, Defendants have not identified any other instances where Agent Hicks's testimony purportedly contradicts his own prior testimony or is speculative, rather than simply being his own recollection of events that differs from theirs.

         Count I - Bivens Claim

         Defendants argue that the Court should enter judgment in their favor on Hicks's Bivens claims because, in their view, both of their detentions of Hicks were reasonable under the circumstances and they are entitled to qualified immunity on that basis. Defs.' Mem. 2. Plaintiff does not challenge Officer Ferreyra's conduct in initiating the first stop. Pl.'s Opp'n 8. Rather, he challenges his continued detention during that stop, after he showed his credentials, as well as when Officer Phillips stopped him within minutes of when he was free to go from the first stop. Pl.'s Opp'n 8. As I observed in the April 11, 2017 Memorandum Opinion and Order finding that Defendants had not shown, based on the record before me at that time, that they were entitled to qualified immunity:

“[G]overnment officials performing discretionary functions generally are granted a qualified immunity and are ‘shielded 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) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, qualified immunity is available for officers or agents who “act in objectively reasonable reliance on existing law.” Queen v. Prince George's Cnty., 188 F.Supp.3d 535, 541 (D. Md. 2016) (quoting Rockwell v. Mayor & City Council of Baltimore, No. RDB-13-3049, 2014 WL 949859, at *8 n.10 (D. Md. Mar. 11, 2014)).
Courts apply the same analysis to determine whether qualified immunity is available to a law enforcement officer or agent under either Bivens or [42 U.S.C.] § 1983. See Wilson, 526 U.S. at 609. The analysis “balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “In particular, . . . qualified immunity protects law officers from ‘bad guesses in gray areas' and it ensures that they may be held personally liable only ‘for transgressing bright lines.'” Gomez v. Atkins, 296 F.3d 253, 261 (4th Cir. 2002) (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)).
Pursuant to this doctrine, police officers are not liable under Bivens or § 1983 unless “(1) the allegations, if true, substantiate a violation of a federal statutory or constitutional right and (2) the right was ‘clearly established' such that a reasonable person would have known his acts or omissions violated that right.” Streater v. Wilson, 565 Fed. App'x 208, 210 (4th Cir. 2014) (quoting Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011) (internal citations omitted)). The Court may “exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in th[is] particular case at hand.” Pearson, 555 U.S. at 236. The defendant carries the burden of proving qualified immunity. McDonnell v. Hewitt- Angleberger, No. WMN-11-3284, 2013 WL 4852308, at *3 (D. Md. Sept. 9, 2013) (quoting Meyers v. Baltimore Cnty., Md., 713 F.3d 723, 731 (4th Cir. 2013)).

Apr. 11, 2017 Mem. Op. & Order 5-6.

         The issue is whether Defendants violated Agent Hicks's clearly established Fourth Amendment rights by detaining him longer than necessary during the first stop and/or by detaining him a second time soon after that stop. Am. Compl. ¶¶ 55-59. “The Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'” Stutzman v. Krenik, 350 F.Supp.3d 366, 377 (D. Md. 2018) (quoting U.S. Const. amend. IV). “‘Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a “seizure”' under the Fourth Amendment. An automobile stop, therefore, is subject to the reasonableness requirement of the Fourth Amendment.” United States v. Bowman, 884 F.3d 200, 209-10 (4th Cir. 2018) (quoting Whren v. United States, 517 U.S. 806, 809 (1996); citing Whren, 517 U.S. at 810)).

         Generally, to be reasonable, a seizure must be “‘based on probable cause' to believe that the individual has committed a crime.” Bailey v. United States, 568 U.S. 186, 192 (2013) (quoting Dunaway v. New York,442 U.S. 200, 213 (1979)).[5] “[S]ome latitude” exists, however, for detention without probable cause “where ‘the intrusion on the citizen's privacy “was so much less severe” than that involved in a traditional arrest that “the opposing interests in crime prevention and detection and in the police officer's safety” could support the seizure as reasonable.'” Bailey, 568 U.S. at 193 (quoting Michigan v. Summers, 452 U.S. 692, 697-98 (1981). This means that “a police officer whose observations lead him to suspect that a particular person has committed or is about to commit a crime [may] detain the person briefly in order to ‘investigate the circumstances that provoke suspicion.'” United States v. Johnson, 599 F.3d 339, 345 (4th Cir. 2010) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 881 ...


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