Case 3:10-cv-00342-P Document 6 Filed 03/22/2010 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

SHOMARI STATEN, §
§
Plaintiff, §
vs. § CIVIL ACTION NO. 3:10-CV-00342
§
THE CITY OF CARROLLTON, TEXAS §
and OFFICER DAVID TATOM, §
§
Defendants. §

DEFENDANT DAVID TATOM’S ORIGINAL ANSWER

Defendant David Tatom (“Officer Tatom”) files his original answer to Plaintiff’s

Original Complaint (“Complaint”) and:

1. States that he is without knowledge or information sufficient to form a

belief as to Plaintiff’s residence.

2. Admits that the City of Carrollton operates the Carrollton Police

Department and is a municipal corporation, and denies the remaining allegations in

paragraph 2.

3. Admits the allegations in paragraph 3.

4. Admits that jurisdiction and venue are proper in this Court, but denies that

Officer Tatom or the City of Carrollton violated any federal statute or any constitutional

rights of Plaintiff.

5. Admits that Plaintiff has requested a trial by jury.

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6. Admits that Plaintiff is an African-American male and states that he is

without knowledge or information sufficient to form a belief as to Plaintiff’s residence.

7. States that he is without knowledge or information sufficient to form a

belief as to the truth of the allegations in paragraph 7, and therefore denies the same.

8. Admits that, on February 21, 2009, Plaintiff was a passenger in a Blue Geo

Prizm vehicle with another African-American male, parked in a shopping center parking

lot in Carrollton, Texas, but states that he is without knowledge or information sufficient

to form a belief as to the truth of the remaining allegations in paragraph 8, and therefore

denies the same.

9. States that he is without knowledge or information sufficient to form a

belief as to the truth of the allegations in paragraph 9, and therefore denies the same.

10. Admits that the squad car that pulled up behind Plaintiff had its emergency

lights on, but can neither admit nor deny the allegations in the first sentence of paragraph

10, as they state what Plaintiff purported to see.

11. Admits that an African-American officer approached the driver’s side

window of the vehicle in which Mr. Carter and Plaintiff were seated; admits that Plaintiff

was seated on the passenger side; states that he is without knowledge or information

sufficient to form a belief as to the truth of the allegations that Plaintiff recognized the

officer who initially approached him; and denies the remaining allegations in

paragraph 11.

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12. Admits that Plaintiff got out of the car, and denies the remaining allegations

in paragraph 12.

13. Denies the allegations in paragraph 13.

14. Denies the allegations in paragraph 14.

15. Denies the allegations in paragraph 15.

16. Admits that other officers arrived; admits that Plaintiff was released and

that his weapon and ammunition were returned; and denies the remaining allegations in

paragraph 16.

17. On information and belief, admits that Plaintiff filed an Open Records

Request to obtain a copy of the police video that recorded the incident and denies the

remaining allegations in paragraph 17.

18. States that he is without knowledge or information sufficient to form a

belief as to the truth of the allegations in paragraph 18, and therefore denies the same.

19. States that he is without knowledge or information sufficient to form a

belief as to the truth of the allegations in paragraph 19, and therefore denies the same.

20. States that he is without knowledge or information sufficient to form a

belief as to the truth of the allegations in paragraph 20, and therefore denies the same.

21. States that he is without knowledge or information sufficient to form a

belief as to the truth of the allegations in paragraph 21, and therefore denies the same.

22. States that he is without knowledge or information sufficient to form a

belief as to the truth of the allegations in paragraph 22, and therefore denies the same.

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23. States that he is without knowledge or information sufficient to form a

belief as to the truth of the allegations in paragraph 23, and therefore denies the same.

24. Admits the allegations in paragraph 24.

25. Denies the allegations in paragraph 25.

26. Admits that, at the time of Plaintiff’s arrest, Defendants were acting under,

and in accordance with, state and federal law and the regulations of the City of Carrollton

and denies the remaining allegations in paragraph 26.

27. States that paragraph 27 states a legal conclusion to which no answer is

required, but to the extent required, denies the allegations in paragraph 27.

28. Incorporates his answers to paragraphs 1 – 27 and admits that Plaintiff was

charged with resisting arrest and failing to show his concealed handgun license when

asked for identification and denies the remaining allegations in paragraph 28.

29. Incorporates his answers to paragraphs 1-28 and denies the allegations in

paragraph 29.

30. Denies the allegations in paragraph 30.

31. Incorporates his answers to paragraphs 1-30.

32. Denies the allegations in paragraph 32.

33. Incorporates his answers to paragraphs 1-32.

34. Denies the allegations in paragraph 34.

35. Denies the allegations in paragraph 35.

36. Denies that Plaintiff is entitled to attorney’s fees.

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37. Denies that Plaintiff is entitled to punitive damages.

38. Denies that Plaintiff is entitled to any relief herein.

39. Defendant denies all allegations of Plaintiff’s Original Complaint except as

specifically admitted herein.

AFFIRMATIVE DEFENSES

40. On February 21, 2009, Officers Palmer and Tatom responded to a 911 call

from citizens who witnessed Plaintiff removing license plates from a vehicle in a public

parking lot.

41. Officer Palmer approached Plaintiff and Mr. Carter and requested

identification.

42. Plaintiff refused to show identification, and instead insisted to Officer

Palmer that he did not need to identify himself.

43. Plaintiff’s failure to show identification was a violation of TEX. GOV’T

CODE § 411.205.

44. Plaintiff exited the vehicle in the direction of Officer Tatom, without

Officer Tatom’s request, but with Plaintiffs left hand concealed in his jacket pocket.

45. In accordance with his training and nationally recognized and adopted

police procedures, Officer Tatom immediately restrained Plaintiff and searched him for

weapons.

46. In the course of his search, Officer Tatom located a concealed handgun in

Plaintiff’s waistband, and disarmed Plaintiff.

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47. In accordance with his training and nationally recognized and adopted

police procedures, Officer Tatom placed Plaintiff under control using an approved

takedown technique.

48. Specifically, nationally recognized KOGA guidelines, which have been

adopted by the City of Carrollton, state:

If, during the process of conducting a Cursory Search, the

searching officer finds a gun, the officer should grab the
weapon . . . At this time, the searching officer should
simultaneously take the suspect's weapon, drop the suspect to
the ground, and draw his service weapon. Follow up the take
down with a prone search . . . The reason for putting the
suspect on the ground in both situations is that the armed
suspect is dangerous to the officer as long as he is on his feet
and able to attack. There is also the possibility that the
suspect might overpower the officer, and gain a serious
advantage. When a suspect is properly dropped to the ground,
he will be disoriented, giving the officer an advantage.

49. Plaintiff resisted arrest, repeatedly tried to get up, and did not comply with

Officer Tatom’s instruction until physically restrained.

50. After an investigation, Plaintiff’s handgun and ammunition were returned

to him.

51. Officer Tatom acted lawfully at all times and did not violate any rights of

Plaintiff or use excessive force.

52. Plaintiff’s claims against Officer Tatom are barred by the doctrine of

qualified immunity. At all material times, Officer Tatom acted pursuant to his authority

as an officer of the City of Carrollton. Further, he acted in accordance with both the U.S.

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Constitution and the policies and procedures of the City of Carrollton. His conduct did

not violate any constitutional right of Plaintiff, much less a clearly established right.

53. Plaintiff’s claims are barred, in whole or in part, by Plaintiff’s proportionate

or comparative responsibility and the proportionate or comparative responsibility of

others pursuant to TEX. CIV. PRAC. & REM. CODE §33.001, et. seq.

54. Plaintiff’s claims are barred, in whole or in part, by Plaintiff’s failure to

mitigate his alleged damages, if any.

55. Plaintiff’s claims for damages and exemplary or “punitive” damages are

limited by the United States Constitution, statutory and common law of the State of

Texas, Chapter 41 of the Texas Civil Practice & Remedies Code.

PRAYER

Officer Tatom respectfully requests that upon final hearing, Plaintiff take nothing

by way of his Complaint and that Officer Tatom recover his costs, including his

reasonable attorneys’ fees incurred herein, and have all such other and further relief to

which he shows himself to be justly entitled.

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Respectfully submitted,

/s/ Lance V. Clack

Gary Eisenstat
State Bar No. 06503200
gary.eisenstat@figdav.com
Lance V. Clack
State Bar No. 24040694
lance.clack@figdav.com

FIGARI & DAVENPORT, LLP

901 Main Street, Suite 3400
Dallas, TX 75202
(214) 939-2000 (Tel)
(214) 939-2090 (Fax)

ATTORNEYS FOR DEFENDANT,

DAVID TATOM

CERTIFICATE OF SERVICE

I hereby certify that all attorneys deemed to accept service of the above-referenced
document electronically will be notified via the Court’s CM/ECF system and all others
will be notified via certified mail, return receipt requested, on this the 22nd day of March,
2010.

/s/ Lance V. Clack

Lance V. Clack

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