United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. GRIMM UNITED STATES DISTRICT JUDGE.
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.
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.
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
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. 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. 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.
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. 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.
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.
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.”).
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.
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.
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.
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.
Before the Court
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)).
[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
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).
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).
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.
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.
I - Bivens Claim
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.
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)).
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)). “[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 ...