Officers Can't Dodge Excessive Force Claims

     (CN) - A federal judge refused to dismiss unlawful arrest, excessive force and assault and battery claims against two Corpus Christi, Texas, police officers who tackled and threw a man to the floor after he barred their entrance to his home.
     However, Senior U.S. District Judge Janis Graham Jack did provide the officers partial victory, granting them summary judgment on a claim for malicious prosecution.
     John Michael Hogan sued the city of Corpus Christi and Officers Robert Cunningham and Chris Potter last year after the incident at his home, which was related to a child custody matter.
     Three days before the confrontation, on April 12, 2010, Hogan had received a call from his son from his ex-wife's home in Portland, Texas.
     According to Hogan's complaint, his ex-wife suffered for ongoing mental health issues, and his son asked to be picked up because his mom was acting strangely. Portland police officers released Hogan's son to him when they determined he shared custody with his ex.
     On April 15, 2010, Officers Cunningham and Potter were dispatched to meet with Hogan's ex-wife and a municipal court prosecutor, who gave them paperwork to enforce a custody arrangement in the couple's divorce. The officers decided the paperwork was legitimate, and went to Hogan's apartment to get his son.
     The officers spoke with Hogan after his roommate opened their apartment door, and when they mentioned they were there for his son, he tried to close the door on them. Hogan hit Officer Cunningham in the head and leg with the door, according to Cunningham's testimony.
     At that point the officers rushed into Hogan's apartment, tackled him and arrested him for assaulting a peace officer, according to Officer Potter's affidavit.
     Hogan is a lung cancer survivor and the officers broke two of his ribs.
     In his account, Hogan says he told the officers they could not come into his apartment, and he did not know if the door hit the officers before they rushed him.
     Officers Cunningham and Potter moved to dismiss Hogan's claims in August saying they had probable cause to enter his apartment and arrest him when Hogan hit Cunningham in the head, and because Hogan was interfering with a child custody matter.
     Though the officers arrested Hogan for assault on a peace officer, charges against him were never pursued by the city of Corpus Christi.
     Graham Jack refused the officers' motion to dismiss the majority of Hogan's claims, holding that the officers had put themselves in harm's way of Hogan's door when they crossed the threshold of his home without a warrant and that there were outstanding issues of fact issues stemming from the varied accounts of the incident.
     As to the officers' claims that probable cause existed to arrest Hogan for interfering with a child custody matter Judge Graham Jack disagreed.
     Hogan took custody of his son at the direction of the Portland Police Department. The day before the incident Hogan reported his ex-wife for breaking down his door, and stealing his son's dog. When Hogan reported the break-in to the Corpus Christi Police Department he says they told him he did not have to answer the door if the police came, according to court records.
     These facts dispute whether Hogan knew he was violating the custody order by denying the officers' entrance, Graham Jack wrote. Even if the officers did not know about these incidents they did not have a warrant to enter Hogan's home, and should have employed a "knock and talk" strategy, Graham Jack wrote.
     She also dismissed the officers' argument that they were entitled to enter Hogan's home to enforce a child custody order, as under Texas law police officers can only act on a request from a prosecutor, or public official, when obtaining the return of a child, which they did not have.
     In light of the foregoing Graham Jack dismissed the officers' motion to dismiss Hogan's unlawful arrest claims.
     According to Officer Cunningham's deposition he entered Hogan's home and performed a controlled take down on him when he resisted. Hogan lost his balance and grabbed Cunningham's arms causing the officer to fall on him, and break two of his ribs.
     Hogan testified that both Officer Cunningham and Officer Potter tackled him, and he did not know if they had both landed on him.
     The legal question of the officers' qualified immunity cannot be resolved until the parties' stories are resolved, Graham Jack wrote in denying the officers' motion to dismiss Hogan's excessive force claims.
     Graham Jack also denied the officers' motion to dismiss Hogan's state assault and battery charges, citing the discrepancy of whether the officers' purposely tackled Hogan. or accidentally fell on him while attempting a controlled take-down.
     She did grant the officers' motion to dismiss Hogan's federal and state malicious prosecution claims against them as they only filed charges against Hogan without pursuing them.Hogan's claims against the city of Corpus Christi were dismissed September 7 pursuant to an unopposed stipulation of dismissal.