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Estate of Wise v. City of Gladewater

United States District Court, E.D. Texas, Marshall Division

May 30, 2019

THE ESTATE OF PATRICK MICHAEL WISE, ET AL, Plaintiffs,
v.
CITY OF GLADEWATER, TEXAS ET AL, Defendants.

          MEMORANDUM ORDER

          ROY S. PAYNE, UNITED STATES MAGISTRATE JUDGE.

         Before 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 excessive force.

         After 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.

         I. BACKGROUND

         Plaintiffs 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.[1] (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.)

         During 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?
Wise: Huh?
Carlsen: You want to go?
Wise: Let me go now.
Carlsen: What?
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.)

         Carlsen 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.)

         Plaintiffs 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.

         II. APPLICABLE LAW

         Summary 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” when ...


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