SUMMER 2023 NEWSLETTER

OUR VISION:

SUCCESS BASED ON LONG LASTING

RELATIONSHIPS FORGED IN INTEGRITY,

EXCELLENCE, COMMITMENT AND TEAMWORK.

Fanning Harper Martinson Brandt & Kutchin, P.C. is pleased to provide you with our Summer 2023 Newsletter.  Below you will find information regarding successes and activities of our attorneys.

FHMBK attorneys have been developing a vibrant U.S. Supreme Court practice while obtaining many victories before appellate courts and trial courts in cases involving qualified immunity, false arrest claims, FMLA claims, takings claims, tort claims, age discrimination claims, excessive force and unlawful detention claims, Title IX claims, and claims relating to the legality of poker houses in Texas.

U.S. SUPREME COURT PRACTICE

l to r: Tom Brandt, Laura O’Leary, Steve Henninger, John Husted, Chris Livingston

FHMBK attorneys, including THOMAS P. BRANDT, LAURA O’LEARY, STEPHEN D. HENNINGER, JOHN D. HUSTED, and CHRIS LIVINGSTON, have been active in filing briefs in the U.S. Supreme Court addressing issues including probable cause, use-of-force, pretextual traffic stops, exigent circumstances, and qualified immunity.

LAURA O’LEARY and CHRIS LIVINGSTON recently filed an amicus brief in support of two petitions for writ of certiorari in a case involving issues related to pretextual traffic stops, qualified immunity, and split-second decisions to use deadly force. Laura and Chris filed the amicus brief on behalf of one national organization and nine state-wide organizations representing law enforcement personnel, municipalities, and counties. The Supreme Court has requested a response to the petitions, which is the first step toward granting review.

RECENT APPELLATE COURT VICTORIES

THOMAS P. BRANDT, LAURA O’LEARY, and CHRISTOPHER BRANDT obtained a victory from the Fifth Circuit Court of Appeals in a Fourth Amendment case involving a mistaken identity arrest of a plaintiff who shared the same name and several characteristics with the suspect. The district court denied the police officer’s motion to dismiss, reasoning that, under Franks v. Delaware and some Fifth Circuit cases construing Franks, the police officer was not entitled to qualified immunity. Agreeing with our arguments about caselaw involving mistaken identity arrests, the Fifth Circuit reversed and rendered judgment in favor of the police officer, explaining that the plaintiff had not met his burden to demonstrate a violation of clearly established law.

l to r: Frank Valenzuela, John Roehm, Christopher Brandt

FRANK VALENZUELA and CHRISTOPHER BRANDT prevailed before the Fifth Circuit on a Family and Medical Leave Act claim. A former county employee alleged that the new sheriff interfered with her FMLA rights by not reinstating her to her former position upon the conclusion of her FMLA leave. Frank and Christopher argued that the plaintiff was not entitled to reinstatement because the sheriff had decided to terminate the plaintiff and nearly every other supervisor for performance-based reasons as he was staffing his new administration. The Fifth Circuit affirmed the district court’s granting of summary judgment in the county’s favor.

STEPHEN D. HENNINGER and JOHN F. ROEHM, III obtained an appellate victory on behalf of a former City Manager in a case involving various tort claims. Steve and John appealed the district court’s denial of their motion to dismiss under the Texas Tort Claims Act. The Second Court of Appeals in Ft. Worth reversed the district court’s order and entered judgment dismissing the relevant claims.

SOME RECENT TRIAL COURT VICTORIES

THOMAS P. BRANDT, JOHN D. HUSTED, and LAURA O’LEARY recently earned a significant trial victory on behalf of a building official for a Texas city in a case involving the legality of poker houses in Texas. The trial court entered judgment in favor of the building official and issued findings of fact and conclusions of law which should prove helpful for other cities and counties tasked with addressing the recent influx of commercial poker clubs attempting to open in Texas. At the conclusion of a hard-fought bench trial, the court agreed with FHMBK that a certificate of occupancy was issued to the commercial poker house in error because the use of the property was in violation of the Texas Constitution and Texas Penal Code provisions relating to gambling.

The case is currently on appeal before the Dallas Court of Appeals and will likely have broad implications for the many cities and counties across Texas faced with the prospects of similar poker house businesses.
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FRANK VALENZUELA and CHRISTOPHER BRANDT obtained summary judgment for a company in a case presenting age discrimination claims under the Age Discrimination in Employment Act and the Texas Labor Code. The plaintiff, a long-time former employee, was terminated in the Fall of 2020. Frank and Christopher obtained a stipulation of dismissal of the Texas Labor Code claim and summary judgment on the ADEA claim, presenting evidence that the company was not covered by the ADEA because it did not employ the requisite number of employees.
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JOHN F. ROEHM, III and CHRIS LIVINGSTON prevailed on a plea to the jurisdiction when landowners asserted takings claims and claims for alleged violations of state law against a Texas county and its commissioners court based on a tax abatement agreement.
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CHRISTOPHER BRANDT obtained a partial victory in a lawsuit in which an inmate asserted excessive force claims against a Texas county and its employees. The trial court granted Christopher’s motion for summary judgment on behalf of the sheriff, the county, and three officers, finding no evidence of a policy, custom, or practice sufficient to establish municipal liability, no evidence that the sheriff failed to discipline any county employee, and no evidence of excessive force.
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THOMAS P. BRANDT, STEPHEN D. HENNINGER and CHRISTOPHER BRANDT  obtained a trial victory for a Texas police officer in an excessive force case brought by family members of a man who was fatally shot when the police officer responded to a 911 call reporting a possible burglary and arson. The suspect was noncompliant and became increasingly uncooperative and combative. When the officer’s attempt to tase the suspect failed, the man entered a parked vehicle and grabbed a handgun out of his pocket. The police officer then fired his weapon twice, killing the suspect. Plaintiffs denied that the suspect ever grabbed a handgun and claimed he was unarmed when he was shot. The case was tried to a jury which unanimously found that the police officer did not use excessive force when he used his taser or when he shot the suspect.
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THOMAS P. BRANDT and LAURA O’LEARY obtained a victory on behalf of a school district in a lawsuit involving claims under Title IX and the Equal Protection Clause of the U.S. Constitution. A high school graduate sued the school district after a former teacher pled guilty to stalking her when she was a student. When school district officials learned that the teacher had been texting with the student, they immediately placed the teacher on administrative leave and obtained the teacher’s resignation in lieu of termination. The district court granted the school district’s motion to dismiss, finding that the school district’s decision to obtain the teacher’s resignation was sufficient to defeat the student’s claim of deliberate indifference.
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THOMAS P. BRANDT and LAURA O’LEARY obtained a victory on behalf of a police officer in a lawsuit involving unlawful entry and excessive force claims. The police officer was the first to respond to a 911 call in which a woman complained that a resident in the house was intoxicated and was hurting his family members in the home. The police officer entered the home and, when the intoxicated man refused to comply with the officer’s instructions to step outside, the police officer used a low level of force to take the suspect into custody. The district court granted the officer’s motion for summary judgment, agreeing that the officer was justified in entering the home and using force to gain control over the noncompliant suspect.
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THOMAS P. BRANDT and JOHN D. HUSTED obtained a final judgment for a Texas city in a case arising from a deadly shooting involving a former city police officer. While off duty, the officer pursued two teenagers whom he believed were stealing items out of his truck. After a chase which ended in the officer ramming the teens’ vehicle, causing them to wreck, the officer exited his vehicle and fired multiple rounds at the two unarmed teens, killing one and severely injuring the other. The city immediately terminated the officer’s employment, and he was eventually convicted of murder and aggravated assault with a deadly weapon.

The deceased’s estate sued the city, alleging claims for municipal liability, failure to train, and failure to supervise. The court granted the city’s motion to dismiss, agreeing that the Plaintiff failed to allege facts sufficient to establish municipal liability for the officer’s actions.
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THOMAS P. BRANDT and JOHN D. HUSTED earned a victory for a Texas county and one of its detectives in a case involving an inmate’s allegations that the detective violated his civil rights by intercepting and copying the inmate’s mail during an investigation. The district court granted summary judgment, noting that non-privileged inmate mail may be inspected and read for contraband and safety purposes, including when there is a suspicion of mail communication being utilized in pursuit of criminal wrongdoing or violations of the jail’s rules and regulations.
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THOMAS P. BRANDT and CHRIS LIVINGSTON earned a victory for a police officer in a case involving a detainee’s claims of excessive force, false arrest, and unlawful imprisonment. The court granted the motion to dismiss in which the officer asserted qualified immunity, applying the detention standard of “reasonable suspicion” instead of the higher arrest standard of “probable cause.”
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CHRIS LIVINGSTON prevailed on a plea to the jurisdiction in a proceeding seeking pre-litigation written discovery and depositions. The petitioner wanted to obtain discovery in an employment contract dispute.
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THOMAS P. BRANDT and CHRIS LIVINGSTON earned a victory for a police officer in a case involving claims for false arrest and unlawful detention when an individual got into an altercation with a contractor. The court granted the officer’s motion to dismiss the claims, in which he asserted qualified immunity.
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THOMAS P. BRANDT and CHRIS LIVINGSTON earned a victory for a Texas city and one of its officers following the arrest of plaintiff for harassment. The plaintiff asserted claims for civil conspiracy, abuse of process, and false arrest. The court granted the motion to dismiss, finding no basis for municipal liability and granting the officer qualified immunity.

SPEECHES AND PRESENTATIONS

FHMBK attorneys, including THOMAS P. BRANDT, STEPHEN D. HENNINGER, FRANK VALENZUELA, LAURA O’LEARY, and JOHN D. HUSTED have recently given presentations on the following topics: Franks claims; the IDEA, the ADA, and Section 504; sovereign immunity; the ADA and Title VII; appellate practice; litigation update involving decisions impacting school districts and their personnel; FERPA; and Critical Race Theory issues.

FRANK VALENZUELA will present an Overview of Federal Laws as a Pre-Conference Workshop session at the American Association of School Personnel Administrators’ 85th Annual Conference on October 3, 2023 in Anaheim, California.