HOUSTON – A federal judge has partially granted and partially denied a motion to dismiss civil rights and excessive force litigation from an operations manager at West Houston Airport, who was arrested by a deputy police officer at the site of a plane crash whose rescue efforts he was called in to assist.
U.S. District Court for the Southern District of Texas Judge Kenneth M. Hoyt issued a memorandum opinion to that effect July 15, in Woody K. Lesikar’s litigation against Harris County and Deputy Christopher D. Ross.
“Woody Lesikar is a 75-year-old operations manager at the West Houston Airport. Over the years, Lesikar has assisted with air search and rescue services at the request of the Federal Aviation Administration and Harris County Air Search and Recovery. On the evening of Friday, Feb. 11, Lesikar received a call about a plane crash on the golf course adjacent to his airport. Lesikar immediately drove to the airport, where he found firefighters congregating. Lesikar loaded several firefighters and their equipment into his vehicle and took them to the golf course where the plane crashed. Lesikar went back and forth ferrying firefighters three times before settling in at the crash site. The plane’s occupants were in shock and great pain, but they were alive,” Hoyt stated.
“At the crash site, Lesikar continued to help. He left his vehicle’s lights on to illuminate the plane while the rescuers worked. He also contributed his expertise; Lesikar is a Federal Aviation Administration-certified airframe and power plant mechanic, as well as an Airline Transport Pilot. He was discussing the structure of the crashed plane with the firefighters as they prepared to cut into it to extract the passengers when Deputy Ross approached. Deputy Ross told Lesikar that he was interfering with the operation. Lesikar identified himself and gestured with his hands to show what he was doing at the site. Ross commanded Lesikar to put his hands down and told him that he was under arrest for interference. Ross handcuffed Lesikar and made him kneel down away from the crash site. Since Lesikar had recently had a knee surgery, this was painful as well as humiliating. Before long, his hands and wrists also began to hurt.”
Ross eventually loaded a still-handcuffed Lesikar into his patrol car, breaking Lesikar’s glasses in the process and then drove aggressively to the jail, weaving through traffic and exceeding 85-90 miles per hour.
When they arrived at the jail, Lesikar told Ross that the handcuffs were too tight and were hurting his hands. Lesikar was processed and kept at the jail until his daughter picked him up around 3:30 a.m.
As he left, Lesikar was told his case had been dismissed. A few days later, a doctor told him his wrists and hands had suffered peripheral nerve damage and other injuries from the handcuffs. Lesikar sued Harris County and Deputy Ross for violations of his constitutional rights under the Fourth Amendment.
In response, Harris County alleged it is immune from the plaintiff’s state law claims, and that the federal claims do not satisfy Monell’s requirements for Section 1983 claims.
Meanwhile, Deputy Ross argued that qualified immunity shields him from federal claims, and that the state claims against him cannot coexist with the plaintiff’s claims against Harris County.
“The Texas Tort Claim Act waives sovereign immunity for personal injuries proximately caused by a negligent employee acting within the scope of his employment, if the harm arises from the use of tangible personal property. Thus, the plaintiff cannot sue Harris County for the allegedly false arrest and imprisonment itself, which were intentional acts. But the plaintiff has also alleged that Deputy Ross ‘acted negligently by excessively tightening and by failing to properly adjust the handcuff restraints,’ and that ‘this negligence of Deputy Ross was the proximate and legal cause of Lesikar’s injuries.’ The plaintiff does not allege that Deputy Ross intentionally tightened the handcuffs excessively, and nothing in the alleged facts suggest that the plaintiff is impermissibly recasting an intentional tort claim as one of negligence. Thus, Harris County is not immune to the excessive force claim as it relates to the handcuffs,” Hoyt said.
“The plaintiff must satisfy the Monell requirements to sue the County under Section 1983. The plaintiff does not respond to the County’s contention that he has not identified a policy or a policymaker. His amended complaint does include allegations of a failure to make policy and deliberate indifference, but they are highly generalized and devoid of any specifics. The plaintiff does not demonstrate a pattern of violations, or otherwise explain the likelihood of recurrence. The plaintiff blames Harris County’s ‘failure to make and enforce a policy of non-interference which created a high and unacceptable risk that private deputized members assisting law enforcement including air crash safety and rescue operations would be arrested and falsely imprisoned.’ But Harris County is not obliged to create a policy for every conceivable scenario. An absence of policies directly addressing this precise occurrence does not rise to deliberate indifference. Accordingly, the plaintiff has not made a sufficient Section 1983 claim under Monell.”
Regarding the state and federal claims against Ross, Hoyt issued a similar split ruling.
“The plaintiff’s state law claims against Deputy Ross cannot coexist with his claims against Harris County. The plaintiff sues Harris County under the Texas Tort Claims Act, which specifies that claims against a government employee are generally subsumed by claims against the governmental unit: If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed. The plaintiff concedes that if Deputy Ross’s conduct was within the scope of his employment, the state law claims against him must be dismissed. By moving to dismiss under 101.106(f), Deputy Ross has judicially admitted that the conduct at issue was within the scope of his employment. Accordingly, the state law claims against Deputy Ross are dismissed,” Hoyt stated.
“The federal claims against Deputy Ross implicate qualified immunity. Qualified immunity is a shield from liability for ‘government officials performing discretionary functions…as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.’ The plaintiff has borne his burden to rebut Deputy Ross’s qualified immunity defense. Lesikar asserted a violation of his constitutional right to be free from false arrest under the Fourth Amendment. Such a right is clearly established; ‘This circuit held that he had such a right long before the incident in question.’ The question, then, is whether Deputy Ross’s action were objectively unreasonable.”
In Hoyt’s mind, Ross’s action were in fact unreasonable under the circumstances.
“Because the Court must view the facts from Deputy Ross’s perspective, the Court temporarily ignores the fact that Lesikar ferried firemen to the accident site in his own vehicle three times. Nevertheless, based on the facts alleged at the time of Deputy Ross’s arrival on the scene, Deputy Ross did not have probable cause to arrest Lesikar. Lesikar was discussing the aircraft’s structure with an EMS and a fireman, when Deputy Ross told him he was interfering. Lesikar’s identifying himself did not deter Deputy Ross. Deputy Ross commanded Lesikar to put his hands down, which were up because he was gesturing to describe the aircraft and his position. There is no indication that Lesikar was distracting or obstructing the rescue effort, or in any other way interfering. On the contrary, even the snippets that Deputy Ross saw indicated that Lesikar was helping rather than hindering. It does not require a wild inference to presume that Lesikar’s expertise and his knowledge of the aircraft’s structure was helpful to rescuers about to cut into that aircraft to rescue frightened and imperiled passengers,” Hoyt said.
“Based on these facts, a reasonable officer would not have arrested Lesikar, depriving Lesikar of his liberty and the rescuers of his expertise. The only allegation supporting a glimmer of probable cause is Lesikar’s failure to put his hands down immediately upon Deputy Ross’s command. But no reasonable police officer would determine that this alone constitutes probable cause for interference. The Court concludes that Deputy Ross’s conduct was objectively unreasonable. Accordingly, he is not entitled to qualified immunity.”
Hoyt ordered that Lesikar’s excessive force claim against Harris County for his injuries from the handcuffs may proceed, as may his federal claims against Deputy Ross – while the remaining claims were dismissed with prejudice.
The plaintiff is represented by Joe Alfred Izen Jr. in Houston.
The defendants are represented by Rachel Susan Fraser and Francis Joseph Ford of the Harris County Attorney’s Office, also in Houston.
U.S. District Court for the Southern District of Texas case 4:24-cv-00470
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com