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March 30, 1998


The opinion of the court was delivered by: KENT

 Joe Drain shot his wife with a pistol during a domestic dispute on December 26, 1995. Apparently recognizing that he had made a severe error in judgment, Mr. Drain then called 911 and reported that he had shot his wife. Three League City patrol officers responded to the 911 call, along with Constable Daniel Cooper of the Galveston County Constable's Office. Constable Cooper responded pursuant to a Mutual Aid Agreement (the "Agreement") between himself and League City. When the officers arrived at the Drain home, Joe Drain, his wife Jennie Drain, and the couple's daughter were inside the house and the door was locked. It appears that there was then a standoff between the police and Joe Drain, who at first would not allow anyone to come inside and would not surrender because he was afraid of being shot by the police.

 Jennie Drain recovered from her injuries, and brought this action individually and as Estate Administratrix of her late husband, alleging violations of 42 U.S.C. ยง 1983 and common law and state law negligence claims. Plaintiff Shelly Drain Smith, Joe Drain's daughter from a previous marriage, brings a wrongful death claim asserting constitutional violations identical to those asserted by Jennie Drain and Joe Drain's estate. Claims against Galveston County, against Daniel Cooper in his official capacity, and of negligence under the Texas Tort Claims Act have been dismissed by previous Orders of this Court, entered October 6, 1997 and November 10, 1997. Furthermore, Jennie Drain's claims were voluntarily dismissed by the Court's Order Granting her Motion for Nonsuit, entered January 13, 1998. *fn1" Now before the Court are the Motions for Summary Judgment of Defendant Daniel Cooper and of Defendant City of League City, dated January 16 and January 20, 1998, respectively. For the reasons stated below, Defendant Cooper's Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. League City's Motion for Summary Judgment is DENIED.


 Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(C). The Court must accept the evidence of the nonmoving party and draw all justifiable inferences in favor of that party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S. Ct. 1348, 1355-56, 89 L. Ed. 2d 538 (1986). Determining credibility, weighing evidence, and drawing reasonable inferences are left to the trier of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986).

 The party moving for summary judgment bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). The movant may meet this burden by pointing out to the Court that there is an absence of proof on any essential element of the nonmovant's case. Id., 477 U.S. at 325, 106 S. Ct. at 2554.

 Once the movant's burden is met, the summary judgment burden shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita, 475 U.S. at 585-87, 106 S. Ct. at 1355-56; Wise v. E.I. DuPont De Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). The nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts," but must instead come forward with specific facts to show that there is a genuine issue for trial. Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1355-56 (citing FED. R. CIV. P. 56(e)). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510. If the evidence is such that a reasonable factfinder could find in favor of the nonmoving party, summary judgment should not be granted. Id. ; see also Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356.


 A. Section 1983 claims

 Defendant Cooper moves for summary judgment of the section 1983 claims against him on two grounds: first, that there was no Fourth Amendment violation; and second, that Cooper is entitled to qualified immunity.

 1. Claims of Excessive Force

 Cooper first alleges that because his actions were reasonable in light of the situation, he did not violate Joe Drain's Fourth Amendment rights. A deadly force claim under section 1983 is a federal constitutional claim, and is analyzed according to the Fourth Amendment's reasonableness standard. See Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871, 104 L. Ed. 2d 443 (1989). The Fifth Circuit has established a three-part test for excessive force claims under section 1983. The Plaintiff in such cases must show "(1) a significant injury, which (2) resulted directly and only from the use of force that was clearly excessive to the need; and the excessiveness of which was (3) objectively unreasonable." Johnson v. Morel, 876 F.2d 477, 480 (5th Cir. 1989) (en banc) (footnote omitted).

 The only argument raised in Cooper's Motion is that Cooper's use of deadly force was objectively reasonable under the circumstances. In support of this argument, Cooper cites primarily his own affidavit and 1997 deposition. According to Cooper's Motion, Drain exited the house with a gun in his hand, waving it in the direction of the officers. Drain then disregarded the commands of the officers to put the gun down, and when an officer on Cooper's right began to move, Drain started moving his gun-holding arm in a way that Cooper deemed threatening to his safety and the safety of the other officers on the scene. Cooper claims that only when he perceived an immediate threat to safety did he make the "split-second" decision to fire.

 Affidavits and depositions of other witnesses, submitted with Plaintiffs' Responses, recite versions of the events that differ from Cooper's rendition. For instance, Officer Randy Ward, who was also on the scene, testified in his deposition that Drain was pointing the pistol at his own head when Cooper shot him. Detective Martin Grant, who was on the phone with Drain at the time of the shooting, testified that another officer told him right after the shooting, while the two were staring at Drain's body, that Drain had the gun pointed at himself when he was shot by Cooper. Even Cooper's own testimony is unclear as to the exact location of Drain's gun and the nature of his arm movements at the time of the shooting. Cooper's deposition testimony *fn2" indicates that Drain may ...

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