City, Chief Barnett victorious in appellate court decision

In a major victory for the City of Kyle and its Police Chief Jeff Barnett, the three-year legal battle waged by Louisiana anesthesiologist Dr. Glen Hurlston against the city and Barnett has appeared to come to an end with yesterday’s ruling by the U.S. 5^th Circuit Court of Appeals dismissing Hurlston’s appeal.

The decision from justices Fortunato Benavides, Gregg Costa and Edward Prado concluded there was no evidence to support Hurlston’s claims that Barnett violated Hurlston’s civil rights and, thus, "a municipality (i.e., Kyle) cannot be held liable under section 1983 if no constitutional violation has been committed by a municipal actor (i.e., Chief Barnett)."

Hurlston claims Barnett used his capacity as Kyle’s police chief and as the former police chief in Princeton, Texas, to have Princeton Police Lt. Robert Mitchnik, another defendant in Hurlston’s suit, arrest Hurlston on New Year’s Day 2012 on charges that Hurlston physically assaulted his wife, Suzanne, who had previously had an affair with Barnett and gave birth to his son, a child Hurlston said he originally thought was his. Suzanne has repeatedly claimed Princeton police simply responded to her 9-1-1 calls for help.

The appellate court saw it Suzanne’s way.

"Hurlston contends that Barnett conspired with Mitchnik and others to have him arrested for the assault/choking incident on January 1, 2012, in Princeton," the three judges said in their decision. "However, neither Barnett nor Mitchnik were present at that arrest. Indeed, Barnett was the Chief of the Kyle Police Department when the Princeton Police Officers arrested Hurlston after Ms. Hurlston called 9-1-1, stating that Hurlston had choked her."

"Oh it's not over till it's over that's what great about the legal system," Hurlston told me via e-mail in reaction to the appellate court’s decision. "There can be justice just like in the OJ Simpson case."

The 5^th Circuit’s opinion, however, would seem to block Hurlston’s current contentions that the city and Barnett conspired with authorities in Princeton to deny Hurlston his civil rights.

"Hurlston’s claim of conspiracy fails because there is no evidence that Barnett conspired with Mitchnik," the court said."Mitchnik cannot conspire with himself." Additionally, the judges said. "no fact-finder could reasonably infer from this record that Barnett and Mitchnik conspired to violate Hurlston’s constitutional rights."

"The ruling by the appellate court confirms the City’s position that the case was malicious, frivolous and unsupported," Kyle Mayor Todd Webster said in a prepared statement. "It is our hope that with this ruling, we can move past this issue and continue with all the good work we’re doing in the City of Kyle."

Hurlston’s attorney James B. Doyle said he was not surprised by the court’s decision.

"The hurdles were pretty high for a citizen claiming misconduct on the part of a police official," Doyle said by phone from his offices in Lake Charles, La,. "As the court said directly in its opinion, you want to give them an operating space in which to work and you would have to present what we consider a jury trial-able issue to get to that point. The court certainly was in its bounds in writing that opinion and it was not completely unexpected."

Doyle said his only legal avenue left to pursue would be to appeal the decision to the U.S. Supreme Court, but that he has already advised Hurlston such an appeal would be fruitless. He said the next steps were really up to Kyle to determine how the city wants to react to what Doyle referred to as Barnett’s character issues.

"The decision was really limited to the question of not whether we had proved the various things that Chief Barnett had engaged in — the factual stuff — but whether that factual stuff would rise to a level that would overcome his status as a police officer."

Doyle singled out that section of the court’s decision that said ‘Although Barnett advised Ms. Hurlston about covering up evidence of their affair, this was a private act, and the evidence does not show that it was connected to his authority as the Kyle Police Chief."

"The City of Kyle now employs as its police chief a man who was proven to have conspired with a person we contend was fraudulently trying to steal our client’s money and he told that person not to turn herself in," Doyle said. "He told her how to destroy evidence in a case from a law enforcement perspective. I wonder how the City of Kyle feels about that. I wonder if they think that requires any further action."

I have also sought reaction from Chief Barnett and his attorneys will include those reactions if and when the parties reply to my requests.

The big question now — and a question left unanswered by the Mayor Webster’s prepared statement issued through the city’s official spokesperson — is when hearings will resume in the appeal of the disciplinary actions taken against former Kyle Police Sgt. Jesse Espinoza, who was suspended indefinitely for violating a police department directive that prohibited Kyle police officers from having any contact with Hurlston and later dismissed from the force for insubordination, based on allegations he was untruthful when questioned by superiors concerning his involvement in events surrounding Hurlston’s lawsuit. Those hearings were continued until after the 5^th Circuit rendered its decision.

In his suit, Hurlston further claimed Barnett conspired to have Hurlston arrested for violating an emergency protective order a few weeks after Hurlston's New Year's arrest.

In summary, the appellate court ruled "by the time of Hurlston’s arrests, Barnett had moved from Princeton to Kyle, and was not present at either arrest. Although it is undisputed that Barnett had an affair with Hurlston’s wife and such evidence provides a motive to harm Hurlston, Hurlston relies on speculation and innuendo but no competent summary judgment evidence that creates a material fact issue suggesting that Barnett used his job to harass Hurlston."

"Hurlston contends that Barnett used the position as Police Chief to harass him and have him arrested," the 5^th Circuit Court’s decision states. "However, the evidence does not raise a genuine issue of material fact with respect to Barnett’s using his state authority to have Hurlston harassed and arrested."

The decision also says: "Hurlston’s affidavit states that during the ‘last week of May 2012, I called Barnett at work and told his secretary that I am coming to the next Kyle city council meeting on June 5, 2012 to expose him (Barnett) to the council.’ Hurlston contends that after he called Barnett, ‘Barnett scrambled to have a warrant issued’ for his arrest before the council meeting to be held on June 5. To support this contention, Hurlston states that ‘no action was taken on Ms. Hurlston’s complaint until’ he made the phone call to Barnett. Hurlston is mistaken. After Ms. Hurlston made her complaint that Hurlston had violated the court protective order, and prior to Hurlston’s call to Barnett, law enforcement officials did take action."

The court also rejected Hurlston’s claim that Barnett caused the DPS to produce a "Threat to a Peace Officer Investigation" report on the doctor.

"My client got his day in court with respect to some of this and there are still questions to be answered," Hurlston’s attorney told me today. "Not in any legal sense, necessarily, although we’re going to make that decision down the road. People have to stand up and say what they believe and what they’re for and what they’re against."