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Estate of Sizer v. Cameron

United States District Court, W.D. Texas, Austin Division

July 18, 2017

ESTATE OF JAMES SIZER, SR., by and through his heirs Dorothy Sizer, Caroline Wolff, and James Sizer, Jr., DOROTHY SIZER, CAROLINE WOLFF, and JAMES SIZER JR., Plaintiffs,



         BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Plaintiffs' Motion for New Trial [#77] and Defendants' Response [#78] in opposition. Having reviewed the documents, the governing law, and the file as a whole, the Court now enters the following opinion and order.


         In their motion for new trial, Plaintiffs ask this Court to reconsider its order granting Defendants' motion for summary judgment. The Court granted Defendants' motion after carefully considering the events giving rise to this lawsuit which transpired on March 6, 2015. See Order of June 1, 2017 [#73]. Around 2:30 p.m. on March 6, 2015, James Sizer, Sr. made three calls to 311 and 911 to request police assistance at his residence in Austin, Texas. During these calls, Sizer advised the dispatcher his son was dangerous; if his son came on his property, Sizer would "point any gun" at him; and Sizer was "fully armed and ready for anything." Between Sizer's first and second calls, a nearby neighbor called 911 to report he heard three gunshots fired. Sizer admitted during his third call that he had fired three rounds of ammunition "just so somebody would hear it." Officer Cameron and Corporal Reale were the first two officers to arrive on the scene. They both testified they knew they were responding to a report of "shots fired" where the suspect had threatened to shoot his son, and Officer Cameron expressly stated she knew Sizer warned the dispatcher he was "armed and ready for anything." The officers further testified they believed Sizer's son "may [have] be[en] shot and in need of life-saving medical attention." When Corporal Reale arrived on the scene, he saw Sizer standing barefoot in his driveway, wearing pants and an untucked shirt. Corporal Reale testified he only had a visual of Sizer's front and left side and feared he may still be armed. Officer Cameron, who arrived on the scene seconds after Corporal Reale, testified she also lacked a complete visual of Sizer because she could only see the right side of his body. As she approached, Officer Cameron informed Corporal Reale she was holstering her service weapon and switching to her taser.

         Corporal Reale issued eleven verbal commands for Sizer to get on the ground but Sizer failed to comply. At one point, Sizer explained he could not get on the ground because he was physically disabled. Given Sizer's continued non-compliance with his orders to get on the ground, Corporal Reale instructed Officer Cameron to "go lethal and I'll go hands on." Rather than "go lethal, " however, Officer Cameron continued to train her taser on Sizer. Officer Cameron testified she chose to maintain non-lethal cover because she was concerned that if the takedown went bad she "would have had to shoot the subject." Moreover, Officer Cameron explained she perceived the risk of Corporal Reale going "hands on" with Sizer as too high, because Sizer had just fired a weapon and the officer had not yet confirmed he was unarmed.

         With her taser trained on Sizer, Officer Cameron gave Sizer two commands to get on the ground. When Sizer failed to comply with these orders, Officer Cameron yelled, "taser, taser, taser, " before tasing Sizer once in the back for approximately five seconds. Sizer fell backward and hit his head. The officers then called EMS. While they waited for EMS to arrive, the officers conducted a protective sweep of Sizer and his residence. They learned Sizer was unarmed and no one was discovered inside his residence.

         Sizer was arrested for discharging a firearm in a municipality and transported to St. David's North Austin Medical Center, where a CT scan revealed he suffered "a left frontal subdural hematoma." The following day, Sizer was discharged to APD "in improved and stable condition" with instructions to "follow up with his primary care physician or other physician in the next week." APD transported Sizer to the Travis County Jail, where he remained until March 9, 2015. Four days later, on March 13, 2015, Dorothy Sizer, Sizer's wife, came home to find Sizer on their bathroom floor, deceased. The medical examiner concluded Sizer died "as a result of complications of blunt force head trauma" with a "contributing factor" of "acute and chronic ethanol abuse."

         Plaintiffs, the heirs and surviving family members of Sizer, filed this action on December 10, 2015, alleging Section 1983 claims for excessive force against Officer Cameron and Corporal Reale and municipal liability claims against the City of Austin for, among other things, failing to discipline, supervise, and train its officers and failing to implement adequate policies governing the use of tasers. After a lengthy discovery period, Defendants moved for summary judgment, which the Court granted on June 1, 2017. In that order, the Court found Plaintiffs had failed to establish the officers' actions violated Sizer's constitutional rights and therefore dismissed Plaintiffs' claims against both the officers and the City.

         On June 23, 2017, Plaintiffs filed a motion seeking reconsideration of the Court's order granting Defendants' motion for summary judgment. The parties fully briefed Plaintiffs' reconsideration motion, and it is now ripe for consideration.


         I. Legal Standard

         Though Plaintiffs style their motion as a motion for new trial, the Court construes it as a Rule 59(e) motion for reconsideration of the Court's order granting Defendants' motion for summary judgment. See Fed. R. Civ. P. 59(e) (giving each party twenty-eight days after entry of a judgment to file a motion asking the court to alter or amend that judgment). "Reconsideration of a judgment after its entry is an extraordinary remedy that should be used sparingly." Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). "[S]uch a motion is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment, " but instead is intended to allow a court to correct manifest errors of law or fact, to correct inadvertent clerical errors, or to present newly-discovered evidence. Id. Indeed, the "remedy is so extraordinary that the standard under Rule 59(e) 'favors denial of motions to alter or amend a judgment.!" Sanders v. Bell Helicopter Textron, Inc., No. 4:04-cv-254-Y, 2005 WL 6090228, at *1 (N.D. Tex. Oct. 25, 2005). Although the decision to grant a motion to reconsider is within the discretion of the district court, the decision should be made in light of two "important judicial imperatives": (1) the need to bring litigation to an end, and (2) the need to render just decisions on the basis of all the facts. Id.

         II. Application

         In their motion for reconsideration, Plaintiffs ask the Court to reconsider the following findings in its summary judgment order: (1) George Kirkham's expert report was unsworn; (2) Officer Cameron possessed an objective and reasonable belief that Sizer posed an immediate threat to the officers' safety; and (3) Officer Cameron received annual taser training. Because the Court finds Plaintiffs ...

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