United States District Court, E.D. Texas, Marshall Division
PAYNE, UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant Robert Carlsen's Motion for
Summary Judgment (Dkt. No. 52), which asserts that Carlsen is
entitled to qualified immunity for claims that Carlsen used
reviewing the underlying briefing and conducting a hearing on
issues of qualified immunity, the Court concludes that
summary judgment is appropriate. Viewing the facts in a light
most favorable to Plaintiff, no reasonable jury could
conclude that Defendant Carlsen's use of force amounted
to a constitutional violation. Therefore, Carlsen is entitled
to summary judgment based on qualified immunity.
are the survivors of Patrick Michael Wise, who died from
gunshot wounds incurred on the night of November 5, 2016 in
Gladewater, Texas. The relevant events occurred at night, so
it was dark and difficult for Carlsen and Wise to see their
surroundings. Defendant Carlsen is a Gladewater police
officer who attempted to stop Wise's vehicle because
Wise's license plate was obscured. (Dkt. No. 52-1 at
63:9-64:4; Dkt. No. 55 at 12.) Wise eventually pulled over
and came to a stop in the road. (Dkt No. 56-7.) As Carlsen
approached Wise's vehicle, Wise drove off, and Carlsen
went back to his vehicle to pursue Wise. (Dkt. No. 52-1 at
87:14-16; Dkt No. 56-7.) Eventually, Carlsen caught up to
Wise's vehicle, which was parked in the road and with the
driver's door open. (Dkt. No. 52-1 at 98:5-99:25; Dkt No.
56-7.) Carlsen heard Wise's footsteps and began pursuing
Wise on foot, with his body camera turned on. (Dkt. No. 52-1
at 104:9-106:4; Dkt. No. 52-2 at 117:20-118:4.)
the pursuit, Carlsen and Wise entered into a semi-enclosed,
undeveloped lot, with fences that were roughly 6 feet tall
running along the north and west perimeters. (Dkt. No. 55 at
14 (citing Dkt. No. 56-9).) Carlsen tripped and fell to the
ground in the tall grass of the lot. (Dkt. No. 52-2 at
125:21-126:4.) After Carlsen fell to the ground, Carlsen and
Wise began fighting with each other. (Id. at
128:25-130:2.) Carlsen's body camera fell off at some
point during this altercation, causing the video to be
entirely dark. (Dkt. No. 52-1 at 14:18-15:2; Dkt No. 56-7.)
However, the body camera still provided audio for the
relevant events. (See Dkt. No. 52-5 (transcribing
the audio produced by Carlsen's body camera); Dkt No.
56-7 (providing body-cam video and audio).) Wise eventually
began grabbing at Carlsen's holstered gun, but he was
never able to take the gun from Carlsen. (Dkt. No. 52-2 at
139:14-21; Dkt. No. 52-5 at 2 (“Now I got your gun
b****.”).) Carlsen claims that while Wise had his hand
on the gun, Carlsen offered to let Wise go away. (Dkt. No.
52-2 at 142:2-14.) This is corroborated by the following
statements from the audio:
Carlsen: You just want to walk away?
Carlsen: You want to go?
Wise: Let me go now.
Wise: Let me go.
Carlsen: Let go of that first.
Wise: I will if you let me go.
(Dkt. No. 52-5 at 2.) With Carlsen lying on the ground near
the center of the lot, Wise began walking around. (Dkt. No.
52-2 at 151:20-153:4; Dkt. No. 52-5 at 3.) Wise was walking
around for about 37 seconds, and Plaintiffs claim that Wise
was looking for a way out of the lot. (Dkt. No. 55 at 14
(citing Dkt. No. 56-7 at 4:43-5:20).) Wise was walking near
the northwest corner of the lot, and with fences running
along the north and west perimeters of the lot, Wise
eventually walked back in the direction of Carlsen. (Dkt. No.
52-2 at 152:24-153:4.) By that time, Carlsen testifies that
he had turned over and was lying in a prone position on his
stomach. (Dkt. No. 52-2 at 153:5-14.) As Wise was approaching
Carlsen, Carlsen's partner drove up to one edge of the
lot in his police vehicle. Carlsen's partner shined a
spotlight on Wise, and Wise looked over towards Carlsen's
partner. (Dkt. No. 52-2 at 161:20-162:15.) At that time,
Carlsen fired his weapon at Wise. (Dkt. No. 164:17-165:10.)
claims that he was lying on the ground when he began
shooting, continued shooting as he shifted up to rest on both
knees, paused his shots briefly as he moved from his knees to
a standing position, and then continued firing from a
standing position. (Dkt. No. 52-2 at 165:17-169:23). Two
other people, Patrick Lohr and Megan Lohr, were standing in a
house across the street from Carlsen and Wise. Patrick Lohr
testified that Carlsen was originally on the ground before
the shooting. (Dkt. No. 55-11 at 5:48-5:55.) Patrick Lohr
heard the words “If you tase me again, I will f*****g
shoot your a**.” (Id. at 5:28-5:31). Megan
Lohr testified that she heard that “If you tase me one
more time, I am going to shoot you.” (Id. at
10:20-10:22.) Patrick Lohr's testimony is unclear as to
whether Carlsen was standing when he began shooting-Lohr
stated in his Declaration that he heard shots fired and that
the officer got up off the ground firing (Dkt. No. 52-7 at
¶ 6), but he stated in his interview with the Texas
Rangers that Carlsen was standing up when the spotlight was
first shining on him and then began firing and advancing
towards Wise. (Dkt. No. 55-11 at 6:20-6:35, 11:55-12:10.)
Megan Lohr stated in her interview with the Texas Rangers
that she believed that Carlsen was standing when the
spotlight shined on him and he started shooting from that
position. (Id. at 11:55-12:10.)
claim that Robert Carlsen violated Plaintiffs'
constitutional rights to be free from excessive use of force
(Dkt. No. 46 at ¶¶ 84-91). Plaintiffs also claim
that the City of Gladewater, Texas is liable under a theory
of municipal liability for the actions of Carlsen.
(Id. at ¶¶ 92-100.) Plaintiffs also bring
state law wrongful death claims against each of the
defendants in this case. (Id. at ¶¶
101-06.) This Order focuses on the claim against Robert
Carlsen for excessive use of force and the related claim
against the City of Gladewater for municipal liability based
on that excessive use of force claim.
judgment should be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Any evidence must be viewed in the light
most favorable to the nonmovant. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144,
158-59 (1970)). Summary judgment is proper when there is no
genuine dispute of material fact. Celotex v.
Catrett, 477 U.S. 317, 322 (1986). “By its very
terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine [dispute] of
material fact.” Anderson, 477 U.S. at 247-48.
The substantive law identifies the material facts, and
disputes over facts that are irrelevant or unnecessary will
not defeat a motion for summary judgment. Id. at
248. A dispute about a material fact is “genuine”