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TwiceHorn

Botham Jean Civil Suit

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Starting this thread for the inevitable discussion of this, which should start back up soon.

The original complaint is here.

A couple of things.  You can't just sue a cop, in their official capacity as a cop,** or the city/employer for negligence, or even intentional wrongful death.  That's barred by sovereign immunity.

This suit, and most like them, allege what's called a Bivens action, which is a deprivation of civil rights as a result of action of individuals acting under governmental authority.***

In this particular species of Bivens action, we're talking about deprivation of life as a result of excessive use of force or police brutality, which is a use of force more than is reasonable under the circumstances, with often a healthy dose of deference to what police, and no one else, considers reasonable.

Because this isn't an ordinary negligence lawsuit, the employer of a cop, in this case, the City of Dallas, is not "automatically" on the hook if the cop is liable, as they would be in a negligence suit under "respondeat superior" if the employee was acting within the scope of his/her employment.

However, this lawsuit also contains a Monell claim against the City of Dallas, which permits recovery of damages for violation of civil rights that occurs because of the "customs, practices, and policies" of the City, or more accurately the DPD.  It's a difficult matter to prove.

**Guyger could be sued in her individual capacity for negligence or intentional wrongful death (assault/battery, etc.), but this suit doesn't include those claims.  And even in those suits, respondeat superior doesn't apply because of sovereign immunity.  So it's a low-chance-of-recovery proposition. 

***There is a question whether Guyger can properly be considered to have been acting under governmental authority when this happened, as she was off-duty.  If she was not, this whole federal lawsuit goes poof.

Discuss away.

 

Edited by TwiceHorn

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Re-reading the complaint, it seems that it is mostly directed at the City of Dallas, although it states a claim against Guyger individually.

The cynical will say that's a way to get a deep pockets.  It's also a way to effect systemic change.

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1 hour ago, TwiceHorn said:

The cynical will say that's a way to get a deep pockets.  It's also a way to effect systemic change.

change what?

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2 minutes ago, futureman said:

change what?

How DPD trains their officers.  Of course, it's entirely possible that Guyger was too much of a dolt/fraidycat/keyboard warrior for any of the training to get through.

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yeah I don’t know.  I think it’s awful tragedy resulting from a particularly egregious mistake.  not sure it needs to foster any radical change.  

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I don't know either.  But, this type of lawsuit has been effective in the past at changing the institutional behavior of some PDs.

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2 minutes ago, Brian Fantana said:

Is this a grey area because she was off duty but in uniform? I wouldn't want to be tasked with figuring this one out.

Yes.  I think so.  There are some cases on it.  I haven't run it down.  I imagine someone on here has some insight.

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If they can't get money from DPD, judging by the pics of her apartment, they may get 20 bucks.

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9 minutes ago, Deej said:

If they can't get money from DPD, judging by the pics of her apartment, they may get 20 bucks.

They have a claim against her in the suit, but other than describing what happened and her actions, it's fairly minimal.

Sad/funny thing.  In their claim for damages for Botham Jean's short pain and suffering, they call him Jordan Edwards (search and replace error).  Jordan Edwards was the Balch Springs victim.

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30 minutes ago, TwiceHorn said:

 

Sad/funny thing.  In their claim for damages for Botham Jean's short pain and suffering, they call him Jordan Edwards (search and replace error).  Jordan Edwards was the Balch Springs victim.

Holy shit, that's bad.  Like Lionel Hutz level bad.  A lawyer that doesn't proofread a pleading in a high profile case that's obviously going to get publicity does not inspire confidence.

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To give an idea of how hard a Monell claim is to make out, apparently, in the Jordan Edwards/Balch Springs case, Balch Springs had no policy at all concerning the use of deadly force.

Judge Lynn has dismissed the Monell claim at least once with an opportunity to re-plead to allege sufficient facts and the plaintiffs are now on their second or third try.

Edited by TwiceHorn

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Holy shit, that's bad.  Like Lionel Hutz level bad.  A lawyer that doesn't proofread a pleading in a high profile case that's obviously going to get publicity does not inspire confidence.


Yikes. Now, I’m not going to claim I write all my stuff from scratch every time, but if I had a case like this, you can bet your ass I’m nitpicking every word in that complaint and rewriting it a dozen times. To have a blatant cut and paste is pretty inexcusable

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1 hour ago, SquishMitten said:

 


Yikes. Now, I’m not going to claim I write all my stuff from scratch every time, but if I had a case like this, you can bet your ass I’m nitpicking every word in that complaint and rewriting it a dozen times. To have a blatant cut and paste is pretty inexcusable

 

Getting your client’s name right is not “nitpicking.”   That’s a fireable offense in my part of the world.  The excuse had better be a first-class piece of advocacy.  

Responding to the OP, it never occurred to me that it would be more than a compensation suit, and I don’t find that “cynical” at all.  

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I didn’t say getting the name right was nitpicking. I meant I would read every damn word a hundred times. Zero chance the name could be missed in doing so. The fact that it was means nobody ever read it. They flat out cut and pasted from another complaint without doing any of their own work/review. Only possible excuse is that the wrong version was accidentally filed. But if that’s the case, there’s likely tons of other corrections needed so they would’ve filed an amended version ASAP

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12 hours ago, TwiceHorn said:

They have a claim against her in the suit, but other than describing what happened and her actions, it's fairly minimal.

Sad/funny thing.  In their claim for damages for Botham Jean's short pain and suffering, they call him Jordan Edwards (search and replace error).  Jordan Edwards was the Balch Springs victim.

The case should be dismissed on this fact alone

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Because being overworked was part of the defense; is there any chance that can/will be used to hold DPD accountable?  

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13 hours ago, TwiceHorn said:

How DPD trains their officers.  Of course, it's entirely possible that Guyger was too much of a dolt/fraidycat/keyboard warrior for any of the training to get through.

At least some of the training got through because she appears to be a much better shot than your average LEO

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13 hours ago, TwiceHorn said:

How DPD trains their officers.  Of course, it's entirely possible that Guyger was too much of a dolt/fraidycat/keyboard warrior for any of the training to get through.

I think that's already in place at least on paper.  Maybe it was bullshit, but listening to the radio discuss this trial it was stated that DPD has implemented a lot of de-escalation training recently. 

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1 hour ago, SDG said:

Because being overworked was part of the defense; is there any chance that can/will be used to hold DPD accountable?  

Could be a factor.  You can read the complaint to see what kind of things they are accusing the City/DPD of doing.  Normally, a complaint is a very high-level view of the allegations of the suit, with little detail.  In this particular type of suit, they have to allege the customs, practices, and policies with pretty great detail to avoid early and rapid dismissal.

Edited by TwiceHorn

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On 10/1/2019 at 9:17 PM, TwiceHorn said:

To give an idea of how hard a Monell claim is to make out, apparently, in the Jordan Edwards/Balch Springs case, Balch Springs had no policy at all concerning the use of deadly force.

Judge Lynn has dismissed the Monell claim at least once with an opportunity to re-plead to allege sufficient facts and the plaintiffs are now on their second or third try.

Looking around in connection with the Jefferson case, I see that Judge Barbara Lynn also has the Guyger civil suit.  And, like the Edwards suit, the Magistrate Judge has recommended that the Monell claims against the City of Dallas be dismissed for failure to state a claim.  Meaning, the City of Dallas is off the hook.

Judging by the Edwards case, the decision is likely to stick at the trial level.  And given that Lynn is a smart judge and the reviewing court would be the Fifth Circuit, it's likely to become permanent.

I'm not sure if this is shitty lawyering by the attorneys or just representative of the difficulties of pleading and proving a Monell claim.

The reporting of the magistrate's decision indicates that the fact that Guyger was off-duty, and not acting in an LEO capacity makes it even less likely that she was acting pursuant to a policy or practice of DPD.  That angle on it had not occurred to me.

Edited by TwiceHorn

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16 hours ago, TwiceHorn said:

Looking around in connection with the Jefferson case, I see that Judge Barbara Lynn also has the Guyger civil suit.  And, like the Edwards suit, the Magistrate Judge has recommended that the Monell claims against the City of Dallas be dismissed for failure to state a claim.  Meaning, the City of Dallas is off the hook.

Judging by the Edwards case, the decision is likely to stick at the trial level.  And given that Lynn is a smart judge and the reviewing court would be the Fifth Circuit, it's likely to become permanent.

I'm not sure if this is shitty lawyering by the attorneys or just representative of the difficulties of pleading and proving a Monell claim.

The reporting of the magistrate's decision indicates that the fact that Guyger was off-duty, and not acting in an LEO capacity makes it even less likely that she was acting pursuant to a policy or practice of DPD.  That angle on it had not occurred to me.

Given your highlighted remarks.  Could an attorney review and argue about who paid for her defense?  I.e if she wasn’t acting in capacity of her job then why would the union pay for her legal defense?  There is also the fact that she was in uniform angle which can be argued that because she was in uniform and police in uniform are required to act as police per policy?  
 

I have no idea but find this case, especially the civil part, fascinating. 
 

Edit to add: the “overworked” angle the defense argued.  If she was overworked the entity that forced her to may share some culpability.

Edited by SDG

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Good thing is DPD will learn its lesson as their pension fund suffers direct consequences. 

Oh wait, just the Dallas taxpayers are on the hook......

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On 10/19/2019 at 1:17 PM, SDG said:

Given your highlighted remarks.  Could an attorney review and argue about who paid for her defense?  I.e if she wasn’t acting in capacity of her job then why would the union pay for her legal defense?  There is also the fact that she was in uniform angle which can be argued that because she was in uniform and police in uniform are required to act as police per policy?  
 

I have no idea but find this case, especially the civil part, fascinating. 
 

Edit to add: the “overworked” angle the defense argued.  If she was overworked the entity that forced her to may share some culpability.

I don't think the defense argued overworked as such.  The evidence showed she was working a 4/10 and that probably would have been offensive to jurors to try to argue that she was overworked.

The Dallas Police Association is not a "union" in the AFL-CIO, NLRB sense.  It's a completely voluntary charitable organization, so it's not limited to representing officers for on-duty or employment-related matters only (if a regular union is).  One of its benefits is legal assistance for both "on-duty and off-duty incidents."  https://dallaspa.org/benefits  Also notable, the law firm that they refer to is the law firm of Robert Rodgers, the lead counsel in the Guyger case.

As set forth above, the only way the City of Dallas is directly on the hook (other than voluntarily paying defense costs or any judgments), is by a Monell claim that requires proof that Guyger's actions were a result of the "practice or policy" of the DPD.  

And, it looks like Jean's family's lawyers are having a difficult time pleading a Monell violation, and odd are pretty good that Dallas will not be on the hook for any of this.

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On 10/19/2019 at 1:42 PM, BrazilHorn said:

Good thing is DPD will learn its lesson as their pension fund suffers direct consequences. 

Oh wait, just the Dallas taxpayers are on the hook......

It's looking like Dallas will be formally off the hook on this case, soon.

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Well, looks like Judge Barbara Lynn adopted the magistrate's recommendation and dismissed the City of Dallas from this civil suit. https://www.cbsnews.com/news/botham-jean-lawsuit-dismissed-judge-dismisses-lawsuit-against-dallas-over-man-shot-by-officer-in-own-home/

Haven't seen anything about an appeal, but by most measures, the suit is no longer worth pursuing.

Because she was convicted and the story seemed to have come out, no need to pursue a trial.  Texas Municipal League may provide some insurance, but it should probably be settled for whatever that is.

Edited by TwiceHorn

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