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Green v. City of Mission

United States District Court, S.D. Texas, McAllen Division

July 17, 2019

DAVID M GREEN, Plaintiff,
CITY OF MISSION, et al, Defendants.


          Micaela Alvarez United States District Judge

         Before the Court is the motion for summary judgment[1] filed by Javier Lara (“Lara”) and Sean De La Rosa (“De La Rosa”) (collectively “Defendants”), the response filed by David M. Green (“Plaintiff”), [2] as well as the reply filed by Defendants.[3] Also before the Court is Plaintiff's “Opposed Motion for Leave to File Sur-Reply Opposing Defendants' Motion for Summary Judgment.”[4] Finally, the Court also considers Plaintiff's “Motion to Partially Strike Albert Rodriguez's Proposed Testimony”[5] and Defendants' response.[6]

         After considering the motions, the relevant authorities, and the record, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's motion to strike, GRANTS Plaintiff's motion to file a sur-reply, and GRANTS Defendants' motion for summary judgment.

         I. Background

         This summary judgment motion concerns an excessive force case involving the fatal shooting of Plaintiff's son, David M. Green II (“Decedent”). In sum, Plaintiff alleges that Decedent, while suffering from mental illness, attempted to evade police by fleeing in Plaintiff's pick-up truck and a high-speed chase ensued, resulting in Decedent crashing into a tree.[7] Plaintiff further alleges that after the accident, officers from the Mission Police Department shot Decedent while Decedent was still in the truck.[8] On this basis, Plaintiff brought claims against three of the police officers involved in the shooting: Officer Jorge Cabrera (“Cabrera”), Officer Javier Lara (“Lara”), and Officer Sean De La Rosa (“De La Rosa”), as well as claims against the City of Mission.[9]

         Given the detailed nature of the facts and the contested nature of some of the evidence, the Court will briefly lay out the case's current procedural posture, then move to resolving any evidentiary issues, before providing a more detailed factual background.

         a. Procedural Background

         Plaintiff filed his original complaint in February 2018, [10] and thereafter filed an amended complaint as a matter of course.[11] The amended complaint alleged claims under 42 U.S.C. §1983 against Cabrera, Lara, and De La Rosa in their individual capacities, as well as claims against the City of Mission.[12] Plaintiff also brought claims under Title II of the Americans with Disabilities Act and Texas Tort Claims Act against the City of Mission.[13]

         Subsequently, Defendants, including the City of Mission and Cabrera, filed a motion to dismiss all Plaintiff's claim.[14] This Court granted Defendants' motion in part and dismissed all Plaintiff's claims, except Plaintiff's claims against Defendants Lara and De La Rosa for excessive force in violation of the Fourth Amendment.[15]

         This Court entered a scheduling order.[16] Defendants timely filed the instant motion for summary judgment pursuant to Federal Rule of Civil Procedure (“Rule”) 56 on the grounds that Lara and De La Rosa are entitled to qualified immunity.[17] Plaintiff responded.[18] Defendants filed a reply.[19] Subsequently, Plaintiff filed a motion for leave to file a sur-reply, [20] and a proposed sur-reply.[21] In addition, Plaintiff also filed a motion[22] to partially strike the testimony of Albert Rodriguez, and Defendants replied.[23] The Court now turns to its analysis.

         II. Motion to Strike

         Because Plaintiff's motion to strike[24] the testimony[25] of Albert Rodriguez (“Rodriguez”) impacts the evidence to be considered in Defendant's motion for summary judgment, the Court considers this motion first. In consideration of Plaintiff's motion to strike, the Court notes that it is not the trier of fact in the summary judgment context. Thus, Plaintiff's requests are somewhat off the mark. Nonetheless, the Court addresses each request, but its rulings apply only in the summary judgment context.

         Plaintiff argues Rodriguez's testimony has been previously struck by federal courts and therefore has a history of being found to lack credibility.[26] Plaintiff also argues the testimony of Rodriguez should be stricken because Rodriguez testified on matters upon which he is not an expert and because Rodriguez testified on matters not helpful or relevant to the jury.[27]Specifically, Plaintiff argues Rodriguez is not qualified to testify: (1) about memory and witness perception theories; (2) about airbags; (3) as a legal expert; and (4) about issues that are not relevant or helpful to the jury.

         Defendants object to Plaintiff's reference to decisions by other federal courts to exclude Rodriguez's testimony.[28] In addition, Defendants respond to each of Plaintiff's requests to strike and argue why each should not be stricken.[29]

         The Court, after considering the motion, GRANTS IN PART and DENIES IN PART Plaintiff's motion, as described in its reasoning below. The Court will first consider Defendants' objection to Plaintiff's reliance on prior judgments making rulings on the reliability and credibility of Rodriguez's testimony, and then consider each of the portions of Rodriguez's testimony that Plaintiff requests to strike.

         a. Previous Cases and Newspaper Article

         Plaintiff argues the Court should rely on determinations in prior cases where Rodriguez's “qualifications and integrity have been questioned, ” and attaches these rulings to his motion.[30]

         Plaintiff also attaches a newspaper article purporting to show Rodriguez's “reputation and improprieties” based on reporting relating to cases in which Rodriguez has testified.[31]

         Defendants object to Plaintiff's arguments relying on previous cases in which Rodriguez's testimony was stricken because “it serves no purpose in support of the arguments [Plaintiff] makes” and instead, “is being used as an attempt to influence the Court . . . as to Mr. Rodriguez's truthfulness, credibility, and trustworthiness.”[32] Defendants argue for similar reasons that Plaintiff's reliance on a newspaper article detailing Mr. Rodriguez's history as a witness is improper.[33]

         Judicial findings in other cases are generally inadmissable hearsay.[34] However, a trial judge may consider hearsay evidence in assessing an expert's reliability.[35] After a witness has been repeatedly rejected by courts it is appropriate to take judicial notice of this history of other courts finding the witnessed lacked credibility.[36] Additionally, a court may take judicial notice of newspaper articles to demonstrate that certain facts were generally known within the court's jurisdiction, but not the truth of the facts reported in the newspaper article.[37]

         Here, the cases and the newspaper article cited by Plaintiff do not establish a pattern of courts finding Rodriguez lacking credibility. The cases share no factual or legal similarities, either to each other or this case; the grounds upon which each judge made determinations as to Rodriguez's testimony are completely different, and none are at issue here.[38] Therefore, these orders do not establish a pattern of Rodriguez exhibiting improper behavior in court or being found to lack credibility. The mere fact that two prior judges determined in the unique circumstances in those cases to limit or strike Rodriguez's testimony is insufficient to prohibit Rodriguez from testifying in this case.

         Additionally, the newspaper article also provides no support for finding any pattern of Rodriguez lacking credibility. Indeed, the article is an opinion piece, and thus not a proper basis for establishing any fact-pattern.[39] The Court must take judicial notice only of the fact that a newspaper article was published regarding Rodriguez in the Texas Observer in 2017, and thus this article was known to the public, but the Court may not rely upon the content of the article for the truth of those facts.[40]

         Accordingly, the Court does not rely upon the two prior cases or the newspaper article in reaching its determinations about the relevance or reliability of Rodriguez's testimony. With this basis the Court now turns to the substance of Plaintiff's requests to strike Rodriguez's testimony. b. Psychology Testimony Plaintiff argues that Rodriguez is not an expert in psychology and requests that the Court strike paragraphs 66-70 and the last sentence of paragraph 106.[41] Each of these includes opinion testimony by Rodriguez about how memory is impacted by a traumatic incident and each is based on Rodriguez's training and certification by the Force Science Institute.[42]

         Rodriguez attended and received a certification from the “Force Science Institute.”[43]Defendants assert that the Force Science Institute “trains investigators on how to analyze officer performance under stress, action/reaction time, memory, and decision making . . . during dangerous encounters, including an officer involved shooting.”[44] Defendants cite to in support of this contention.[45]

         Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony and reports.[46] An expert witness may testify in the form of an opinion if the expert is qualified as an expert by “knowledge, skill, experience, training, or education;” and (a) the expert's knowledge will help the trier of fact; (b) the testimony is based on sufficient facts; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.[47]

         The Supreme Court, in analyzing Rule 702, has indicated that the overarching concern is whether the testimony is relevant and reliable.[48] A district court has broad discretion in deciding the admissibility of expert testimony.[49] The burden is on the party offering the expert testimony to demonstrate that the expert's findings are reliable.[50]

         To be reliable, expert testimony must “be grounded in the methods and procedures of science and . . . be more than unsupported speculation or subjective belief.”[51] Further, courts should refuse to allow an expert witness to testify if it finds that the witness is not qualified to testify in a particular field or on a given subject.[52] The party seeking to demonstrate that an expert is reliable must demonstrate “objective, independent validation of the expert's methodology.”[53]

         The Court concludes Defendants have not met their burden to demonstrate Rodriguez is a qualified expert in psychology or that Rodriguez utilizes reliable methods. Defendants provide no information about the Force Science Institute beyond the main website page, and provide no information about Rodriguez's specific certification. Nor do Defendants provide any “objective, independent validation of the expert's methodology” of the techniques relied upon by the Force Science Institute in general or in the specific certification course completed by Rodriguez.[54]Accordingly, the Court GRANTS Plaintiff's motion in relation to paragraphs 66-70 and the last sentence of paragraph 106 and STRIKES this portion of Rodriguez's testimony from the record.

         c. Airbag Testimony

         Plaintiff argues Rodriguez is not an expert in airbags and requests to strike the last three sentences of paragraph 94 and the first two sentences of paragraph 95 from Rodriguez's testimony.[55] In these statements Rodriguez provides opinions about impact of airbag deployment and the length of time it takes for an airbag to deflate.[56]

         Defendants indicate that Rodriguez is basing his opinion regarding airbags on his experiences as a State Trooper and in-service trainings regarding collision investigation and reconstruction that Rodriguez received.[57] Rodriguez asserts he is qualified as a “Collision Investigation and Reconstruction” expert, and that through his “training, experience and research” he has “become familiar with motor vehicle airbag deployments and deflations.”[58]

         The Court finds these assertions do not meet Defendants' burden to demonstrate that Rodriguez is a qualified expert about airbags. Defendants do not include information about the methods are utilized by Rodriguez as a Collision Investigation and Reconstruction expert or why these methods are reliable. The Court concludes Defendants have not met their burden and thus GRANTS Plaintiff's motion and STRIKES the last three sentences of paragraph 94 and the first two sentences of paragraph 95 of Rodriguez's testimony from the record.

         d. Legal Testimony

         Plaintiff argues Rodriguez is not a legal expert and requests to strike paragraphs 30, 34, 35, 42, 43, 45, 46, 47, 61, 62, 63, 78, 79, 81, 86, 87, 89, 90, 98, 99, 101, 102, 103, 104, 109, 111, 122, and 123.[59] Plaintiff argues that in each of these Rodriguez offers legal opinions.[60] Defendant responds that Rodriguez instead offers opinions about the trainings that “peace officers licensed in the State of Texas and for law enforcement trainers.”[61]

         In general, expert testimony is not allowed regarding the law, and experts may not “state a legal conclusion.”[62] An expert's legal conclusion “both invades the court's province and is irrelevant.”[63] Thus, pursuant to Federal Rule of Evidence 702, courts generally exclude expert testimony stating legal conclusions.

         After reviewing each paragraph Plaintiff requests to strike, the Court grants a portion of Plaintiff's requests. To the extent Rodriguez provides a legal determination evaluating the facts of this case under Supreme Court law, such testimony is inadmissible for summary judgment purposes. Accordingly, the Court GRANTS Plaintiff's motion in relation to paragraphs 78, 79, 87, 89, 90, 98, 101, 111, and 122; and to the extent that a legal opinion is given, STRIKES each of these paragraphs from consideration in the summary judgment context.

         However, upon review, many of the paragraphs are not legal analysis, but instead consist of Rodriguez's opinion about law enforcement trainings based on legal standards. Defendants point to Rodriguez's extensive experience providing trainings based on Supreme Court decisions as required by the Texas Law Enforcement Commission as evidence of his qualification as an expert in this area.[64] Given that this case is based on the subjective understanding of law enforcement officers regarding the appropriate use of force, Rodriguez's testimony regarding how law enforcement officers are trained about appropriate behavior in light of Supreme Court cases is admissible. Thus, the Court DENIES Plaintiff's motion in relation to paragraphs 30, 34, 35, 42, 43, 45, 46, 47, 61, 62, 63, 81, 86, 99, 102, 103, 104, 109, and 123.

         e. Irrelevant Testimony

         Plaintiff argues that Rodriguez draws “conclusions about the evidence that are not specific to the training of law enforcement officers.”[65] Plaintiff argues these are not relevant to a trier of fact and requests to strike paragraphs 53; 62; 64 (last two sentences); 65 (last two sentences); 71 (last two sentences); 74 (last two sentences); 75 (last sentence); and 82 (last sentence).[66]

         Defendants argue each of these pertain to how police officers are trained and thus would be useful to a trier of fact. In assessing relevance, courts should consider whether the expert's opinion will assist the trier of fact.[67] Relevant testimony must “fit[]” the facts of the case and thereby assist the trier of fact to understand the evidence.[68]

         The Court agrees with Defendants that Rodriguez's testimony in the sections highlighted by Plaintiff are relevant. Each of the highlighted sections contains Rodriguez's opinion about the reasonability of the officers' actions in light of their law enforcement training, and thus would assist the trier of fact in determining the subjective reasonableness of the law enforcement officers in choosing to utilizing force. Accordingly, the Court DENIES Plaintiff's motion in relation to paragraphs 53; 62; 64 (last two sentences); 65 (last two sentences); 71 (last two sentences); 74 (last two sentences); 75 (last sentence); and 82 (last sentence).

         Based the on the foregoing the Court DENIES IN PART AND GRANTS IN PART Plaintiff's motion to partially strike Rodriguez's testimony in the manner already explained. The Court now turns to Plaintiff's motion for leave to file a sur-reply.

         III. Motion for Leave to File Sur-Reply

         Before turning to the motion for summary judgment, the Court first considers Plaintiff's motion to file a sur-reply.[69] Although the motion is styled as “opposed” Defendants have not responded. Thus, the motion is unopposed by under Local Rules.[70] Plaintiff requests to file a sur-reply to respond to new evidence in Defendants' response, [71] and attaches a proposed sur-reply.[72]

         The Court finds the sur-reply responds to Defendants' response and the sur-reply will not delay the proceeding.[73] Given that Defendants are unopposed to Plaintiff's motion, the Court determines Plaintiff has provided cause to consider the sur-reply. Accordingly, the Court GRANTS Plaintiff's motion to file a sur-reply and will consider the substance of Plaintiff's sur-reply in the Court's analysis of Defendants' motion for summary judgment.

         IV. Summary Judgment Motion

         a. Legal Standard

         Under Rule 56, summary judgment is proper when there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[74] In a motion for summary judgment, the movant bears the initial burden of showing the absence of a genuine issue of material fact.[75] The burden then shifts to the non-movant to demonstrate the existence of a genuine issue of material fact.[76] “A fact is ‘material' if its resolution could affect the outcome of the action, ”[77] while a “genuine” dispute is present “only if a reasonable jury could return a verdict for the non-movant.”[78] As a result, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”[79]

         In conducting its analysis, the Court considers evidence from the entire record and views that evidence in the light most favorable to the non-movant.[80] Rather than combing through the record on its own, the Court looks to the motion for summary judgment and response to present the evidence for consideration.[81] Parties may cite to any part of the record, or bring evidence in the motion and response.[82] By either method, parties need not proffer evidence in a form admissible at trial, [83] but must proffer evidence substantively admissible at trial.[84]b. Evidentiary Issues Plaintiff and Defendants also raise other issues with the evidence relied upon by the opposing party. Thus, before providing a full summary of the facts in the record, the Court considers these issues.

         i. Sandra Netherton Testimony

         Defendants object to Plaintiff's referring to the deposition testimony of a witness to the incident, Sandra Netherton (“Netherton”), because Plaintiff did not submit Netherton's deposition into the record.[85] However, Defendants attached Netherton's deposition testimony to their response, and thus submitted Netherton's deposition in the record.[86] While the Court would never consider evidence not in the record, because Defendants have placed Ms. Netherton's testimony in the record, the Court will consider it.

         ii. Texas Ranger Investigation

         Plaintiff complains that Texas Department of Public Safety Investigation (“Investigation”), submitted into evidence by Defendants, showed biased and was incomplete.[87]Plaintiff disputes no factual assertion made by Defendants that relies on the Investigation, and instead argues that different versions of the Investigation do not contain the same information.[88]

         The Investigation was an independent assessment of the shooting completed by Texas Ranger Robert Callaway (“Ranger Callaway”) shortly after the incident at the request of the Mission Police Department.[89] The Investigation was completed in the days following the incident and included testimony and witness statements from police officers, bystanders, and experts.[90] After completion, the Investigation was submitted to the Hidalgo County District Attorney's Office in connection with the criminal investigation into the shooting.[91]

         The Court finds Plaintiff's complaints are immaterial to this motion. First, Plaintiff does not indicate what relief, if any, he would like due to the alleged bias of the Investigation. Plaintiff does not request the Investigation be excluded from the record. Indeed, Plaintiff cites extensively to the deposition testimony of Ranger Callaway which relies on the results of the Investigation.[92]Second, even assuming the truth of Plaintiff's allegation that Ranger Callaway omitted some information from the final version of the Investigation, this does not mean that any of the facts included in Ranger Callaway's report are incorrect. For the foregoing reasons, the Court disregards Plaintiff's arguments about the alleged bias of the Investigation.

         iii. Plaintiff's Unsupported Factual Assertions

         Defendants argue that Plaintiff makes factual allegations and assertions in his response that are unsupported by any evidence.[93] Plaintiff responds that much of his response included citations to the record.[94]

         Any assertion or allegation unsupported by evidence cannot be used to establish a genuine dispute of a material fact. Rule 56(c)(1) provides that the party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to “particular parts of materials” in the record or showing that the materials cited do not establish the absence or presence of a genuine dispute.[95] The burden imposed by Rule 56(c)(1) on the nonmoving party is not heavy, however “the bare assertion that there are material facts in dispute is obviously not sufficient to carry this burden.”[96] Further, “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.”[97]

         Upon review, although Plaintiff does cite to evidence in some portions of his response, much of Plaintiff's response contains factual allegations and assertions with no citation to the record.[98] To the extent that Plaintiff makes factual assertions or argues there are disputes regarding the factual evidence without citing to evidence in support, the Court disregards these assertions.[99]

         iv. Plaintiff's Misleading or Inaccurate Citations

         Defendants also argue that Plaintiff's response is replete with inaccurate or misleading factual assertions that are not supported by the evidence.[100] The Court again agrees. Plaintiff makes numerous factual assertions that are misleading, inaccurate, or-on several occasions- where the cited evidence actually states the opposite of Plaintiff's contention. The Court now turns to one such example: Plaintiff's reference to the apparent testimony of Donna Lytle.[101]

         1. Donna Lytle

         Plaintiff argues testimony from Donna Lytle, a purported witness to portions of the incident, disagrees with other witness testimony.[102] Plaintiff does not submit into evidence any testimony of Donna Lytle. Instead, Plaintiff cites to the deposition testimony of Ranger Callaway, in which Ranger Callaway is asked to comment on a video clip of testimony from Donna Lytle.[103]

         The Court finds Donna Lytle's testimony as cited by Plaintiff is inappropriate summary judgment evidence. Plaintiff cited Ranger Callaway to support the truth of Donna Lytle's version of events.[104] However, Ranger Callaway actually states that he is skeptical of the accuracy of Donna Lytle's testimony because it conflicts with video evidence.[105] In sum, Plaintiff is citing to deposition testimony in which the deposed individual disagrees with the statement of a third party to support the truth of the assertion of the third party. Thus, Plaintiff's citation to Ranger Callaway's deposition in support of Donna Lytle's version of events is-at best-inaccurate, and-at worst-could indicate a deliberate attempt to mislead the Court. Additionally, even if the factual assertion were accurate, Ranger Callaway repeating a third-party statement is clearly hearsay not within any exception, and, therefore, inadmissible.[106] Accordingly, to the extent Plaintiff cites to Donna Lytle's version of events, the Court disregards these assertions.

         2. Admonishment

         As noted, Plaintiff's response is replete with similarly misleading and inaccurate citations. The Court declines to examine every one of these, except as noted later in this Opinion to address necessary arguments. However, the Court admonishes to Plaintiff remember the requirement to only make factual allegations that Plaintiff reasonably believes are supported by evidence.[107] The Court now turns to the factual backgrounds as established by the evidence in the record.

         b. Factual Background

         i. Initial Encounter

         On February 22, 2016, Mission Police Department officers responded to a domestic disturbance in a small retirement community named “Wagon City South, ” located in Mission, Texas, where Plaintiff lived with his son, Decedent.[108] Decedent had a long history of mental illness, suffering from bipolar disorder and schizophrenia.[109] On that day, Plaintiff called 911 to report that he had been assaulted at his home by Decedent.[110] Plaintiff told the 911 operator that Decedent had threatened to kill Plaintiff with an ax, and was outside Plaintiff's house hitting Plaintiff's truck and motorcycle with the ax.[111] Plaintiff also informed the 911 operator that Decedent was schizophrenic and was off his medication.[112]

         Cabrera was on patrol and Dispatch informed Cabrera there was a schizophrenic male subject, off his medication and armed with an ax, who had assaulted his elderly father.[113] Cabrera headed towards the address provided.[114] Before Cabrera arrived, Dispatch informed him Decedent had put down the ax and picked up a machete.[115] Cabrera arrived at the home by himself.[116]

         Cabrera exited his vehicle, unholstered his weapon and started walking towards Decedent.[117] Cabrera testified he saw Decedent with a machete in his right hand and gave Decedent verbal commands to stop, put his hands up, and drop his weapon, [118] and told Decedent, “Please put it [the machete] down. I don't want to shoot you.”[119] Cabrera testified Decedent “just threw it [the machete] to the floor and ran towards his truck . . . I think it was an F-250.”[120]

         As Decedent got into the truck, Cabrera called Dispatch, saying “this guy's about to take off.”[121] Decedent entered the truck and Cabrera commanded Decedent to “get out” multiple times.[122] Cabrera testified that Decedent did not comply and instead drove the truck towards Cabrera.[123] Footage from Cabrera's ‘dash cam' shows Cabrera running backwards as a red truck drives directly at Cabrera.[124]

         Cabrera testified he “thought [Decedent] was going to run over me.”[125] Cabrera fired a single shot at Decedent.[126] Cabrera fell to the ground, narrowly missed-or perhaps side- swiped-by the truck.[127] Cabrera quickly got to his feet and fired three more shots at the truck before the truck drove off.[128] Cabrera returned to his vehicle, informed Dispatch, “shots fired” and began pursuit of Decedent.[129] Throughout the pursuit Cabrera was the police unit directly behind Decedent.[130]

         ii. Vehicle Pursuit

         Other Mission Police Department officers began to arrive at Wagon City South, including Defendant Lara.[131] At this time Dispatch relayed, “shots fired” and “officer down.”[132] Lara testified that when he heard “shots fired” and “officer down” he believed Cabrera had been killed.[133] Lara entered Wagon City South and followed a police unit in pursuit of Decedent.[134]This unit was driven by Cabrera, although Lara testified he did not know this at the time.[135]

         Shortly after entering Wagon City South, Lara turned down a small street, encountering Decedent driving towards Lara's vehicle head-on.[136] Decedent crashed into the front right quadrant of Lara's vehicle.[137] Lara testified he thought Decedent intentionally hit his vehicle.[138]

         Lara also testified he believed his unit was disabled by the impact.[139] Lara exited his vehicle and drew his handgun, but did not fire as Decedent drove past.[140]

         Lara then retrieved his rifle from his vehicle and waited for Decedent to return to this area of Wagon City South.[141] Wagon City South has only one entry and exit, and the road where Lara positioned himself is near that entry point.[142] Lara testified he ordered bystanders in the area to “get out of harm's way.”[143]

         Meanwhile, Decedent's vehicle was not impaired by the impact; Cabrera, De La Rosa, and other police units continued the pursuit in a high-speed chase through the streets of Wagon City South.[144] De La Rosa was the vehicle behind Cabrera and was calling out locations and directions during the pursuit.[145] Cabrera testified he believed Decedent was going “above sixty” miles per hour.[146] During the pursuit, Decedent nearly struck an individual in the roadway.[147]Lara testified he heard over the radio that Decedent had nearly hit a pedestrian.[148]

         iii. The Crash and Rifle Shot

         After a high-speed pursuit through the streets of Wagon City South, Decedent returned to where Lara had positioned himself in the road.[149] Lara yelled out commands for the truck to stop as it approached his position in the road.[150] Lara testified, “the truck stopped, revved his engine, moved forward, stopped again, revved its engine a second time, then moved forward again.”[151]

         The record clearly reflects that two events happened next, but the exact sequence of events is unclear: (1) Lara fired a single shot from his rifle that went through the windshield of the truck;[152] and (2) the truck crashed into a tree in a yard between two neighboring trailer homes and came to a stop.[153]

         From the record it is unclear the length of time between Lara's shot and the crash. Lara initially testified he shot prior to the crash, [154] but after reviewing the video evidence, Lara later conceded that the sound of his gun shot occurred “after [Decedent] hit the tree.”[155] In dash cam videos a shot can be heard, either simultaneous to the truck striking the tree or in the moment before or after.[156]

         It is also unclear exactly where Lara was standing when he fired the rifle. Lara initially testified he was standing in the road when he fired the rifle shot, [157] but later in his deposition, after reviewing Cabrera's dash cam video, agreed that it appeared he was standing “by the tree” and not “in the street.”[158] The footage from Cabrera's dash cam shows the truck strike the tree, but Lara's exact location is unclear because he is obscured by a white truck parked in the street.[159] Regardless of the timing of the shot and Lara's location, Plaintiff's expert consultant testified the rifle round did not strike Decedent.[160]

         iv. Shots After Crash

         After the crash, events happened very quickly. As the truck crashed, there were numerous members of the Wagon City South in the area, including Shirley Netherton standing in her front yard as the truck crashed.[161] The front of the truck was damaged from the crash and the horn was blaring.[162]

         Lara, De La Rosa, Cabrera, and other officers approached the truck with their weapons out, [163] and about ten seconds after the crash there was a series of gun shots, which lasted approximately thirteen seconds[164] Following the shooting, there was a brief interval.[165] Then the truck rolled slowly backwards, away from the tree and into the side of Netherton's trailer home.[166] Almost instantaneous with the truck rolling backwards, there was a final shot.[167]According to dash cam footage, the entire incident-from the crash to the final shot-took approximately fifty seconds.[168] Decedent was removed from the truck, unresponsive, and was pronounced dead.[169]

         The record includes testimony, photographs, and videos showing multiple angles and viewpoints of these concurrent events. In the interest of clarity, the Court now separately explains the actions of Lara, De La Rosa, and Decedent in these moments as established by the evidence.

         1. Lara's Actions

         Immediately after the crash but before shots other than the rifle shot were fired, Lara advanced on the truck, and as Lara approached, his rifle jammed, and he switched to his handgun.[170] Lara testified he saw “heavy damage” to the front of the truck.[171] As Lara approached he gave Decedent multiple commands to “get out of the vehicle.”[172]

         Although Lara did not observe Decedent with any weapons, Lara testified he saw Decedent moving inside the truck, ignoring all commands, and revving the engine.[173] In particular, Lara testified he saw Decedent attempting to place the truck into reverse.[174] Lara testified, “[a]t that time when [Decedent] hit the tree, he was trying to dislodge the truck from the tree by putting it in reverse and trying to dislodge it.”[175]

         As Lara neared the passenger side window, Lara fired at Decedent a total of four times with his handgun.[176] On Lara's and Cabrera's dash cam videos, the first shot from the handgun can be heard about ten seconds after the truck crashed into the tree, [177] and the shots occurred at intervals for approximately thirteen seconds.[178] Lara testified he stopped to reassess the situation after each shot.[179] Lara described the shooting as follows:

         [W]hen I fired the first round, the glass [of the passenger side window] shattered. When I fired the second round, [Decedent] reacted to the rounds-to the rounds hitting him. He was still trying to dislodge the truck. The third round he was still trying to dislodge the truck. He was still messing with the gears; just showing that he was still trying to get away. And the fourth round hit him in the neck, so that's what made him stop.[180]

         Lara testified he “kept on shooting until [Decedent] stopped messing with the truck. During the whole course of my actions, he kept trying to dislodge the truck from the-from the tree.”[181]

         2. De La Rosa's Actions

         Concurrent to Lara's actions, De La Rosa approached the truck after it hit the tree and saw an elderly woman, Netherton, in the yard near the truck.[182] De La Rose testified his first action was to “yell[] commands at [Netherton] to move out of the way.[183] Once De La Rose believed Netherton was “out of the way, ” the initial shots were over and De La Rosa moved to the driver's side of the truck to check on Decedent.[184] De La Rosa testified that by this time Decedent “wasn't responsive, ” even though the truck was still “revving and moving.”[185]

         De La Rosa then used a “glass puncturing device” to strike the window of the truck and hit it “several” times.[186] After De La Rosa struck the window, the truck rolled backwards until it collided with the edge of Netherton's trailer home a few feet behind where the truck had crashed.[187] After the truck started rolling backwards, De La Rosa testified he “shot through the window into the dashboard” so he “could open the door.”[188] De La Rosa testified he did not shoot at Decedent, [189] and expert analysis indicates this round did not strike Decedent.[190] De La Rosa then opened the driver side door and removed Decedent, who was unresponsive, from the vehicle.[191]

         3. Decedent's Actions

         Several witnesses testified regarding Decedent's actions immediately after the crash and the shooting. Given that Decedent's actions are key to determining whether Defendants may have been justified in the use of force, the Court will consider this witness testimony in detail.

         Gary Rinehart (“Rinehart”) was in the community clubhouse across the street during the shooting, and testified he had a clear view of the truck and Decedent during the entire incident from inside the clubhouse.[192] Rinehart testified that shortly after the crash, he heard officers give Decedent commands, and in response Decedent moved in a manner consistent with putting the truck in reverse, and after a delay of a second or two seconds, Rinehart heard a shot.[193] Rinehart believed this shot was fired from a “pistol.”[194] Rinehart testified that Decedent was still moving and non-compliant after the first shot, [195] and that he observed Decedent attempting to “put[] the car into reverse and attempting to flee.”[196] Further Rinehart testified “at no time did [Decedent] give any kind of indication of submission.”[197]

         Both officers provide similar testimony. Cabrera testified he could see Decedent inside the truck throughout the shooting.[198] Cabrera testified he and Lara gave Decedent commands to “stop” and “get out” and that Decedent was “still trying to put [the truck] in reverse” despite the commands.[199] Lara testified he approached the truck from the passenger side and that he could see Decedent in the vehicle.[200] Lara testified Decedent “was trying to dislodge the truck from the tree by putting it in reverse.”[201] Lara testified that Decedent continued these actions despite Lara's commands for Decedent to stop, and that Decedent continued moving and attempting to reverse the truck until Decedent was incapacitated by Lara's final shot.[202]

         Netherton, the elderly woman in the yard as Decedent crashed, testified regarding her view of the crash and shooting. However, it is unclear from the record where Netherton was positioned during the incident, how much of the incident she viewed, and whether she was able to witness Decedent's actions inside the truck.

         Netherton was in her front yard at the moment the truck crashed into the tree, [203] but, at some point after the truck crashed, went into her house and then came back outside.[204]

         Netherton's testimony of her movements during the incident is as follows:

I was standing in my front yard, and a truck came through my front yard and hit my neighbor's tree . . . And then these policemen were shooting at this man, and I went out. And anyways, [the police officers] told me to go in the house. I went in the house, and I went out the back door to see what they were doing to him and they were shooting . . . And then this-this one policeman came around and broke the window and shot him.[205]

         A photograph taken at some point during the shooting[206] shows Netherton on her back porch, about thirty feet behind the truck according to Netherton's estimate.[207] The record is unclear how long Netherton remained at each position.

         Netherton testified she saw Decedent's movements in the truck after the crash, but her testimony does not indicate when she saw these actions or where she was standing. Netherton's deposition testimony contains the following exchange regarding Decedent's actions in the truck:

Q: After the truck hit the tree, could you-could you see whether the driver was doing anything inside the truck? Netherton: Wasn't doing anything.
Q: Was just sitting there?
Netherton: Uh-huh. I think he was already gone . . . That's what I think.
Q: Okay So you saw . . . the truck hit the tree, and you could see that the driver wasn't doing anything?
Netherton: No.
Q: But the police officers continued to shoot at him?
Netherton: Yes . . . Because he slowly-he slowly went back into my house. He didn't drive back there or anything. It just, like, crept back and hit my house. I think he was already gone.[208]

         Although nothing in Netherton's deposition testimony indicates which portion of the incident this is in reference to or from what vantage point Netherton viewed Decedent's actions, the truck rolling backwards occurred near the end of the incident, after Lara had stopped shooting.[209]

         Regardless of where and when Netherton viewed Decedent's actions, Netherton's testimony contains conflicting information regarding whether she was able to see Decedent's actions while he was inside the truck. At the beginning of her deposition Netherton affirmatively responded to a question asking if she could “see whether the driver was doing anything inside the truck.”[210] However, later Netherton stated, “I didn't see inside the truck.”[211] Additionally, Netherton conceded she could not view Decedent's actions inside the truck while she was on the porch.[212] Finally, Netherton's deposition testimony included the following exchange:

Q: Okay. Ms. Netherton, you testified earlier already that it was clear from your vantage point at some point in time during the incident you couldn't see exactly what the driver was doing inside the vehicle.
Netherton: No, I couldn't.
Q. Okay. All right. So, it is possible-even though you said in some of your statements that [Decedent] wasn't doing anything, it's possible that he was. You just couldn't see. . . .
Netherton: What could he do? . . .
Q: My question is you didn't see everything from your vantage point.
Netherton: Not what's [] inside the truck.[213]

         Thus, it is unclear whether Netherton was able-at any time-to see inside the truck.

         v. After the Shooting

         Dr. Norma Jean Farley, M.D., performed the autopsy on Decedent.[214] The autopsy reported that Decedent sustained four gunshot wounds and that he died of gunshot wounds to his neck and torso.[215] The autopsy also revealed that Decedent tested positive for cannabinoids and fentanyl/metabolites.[216]

         The Mission Police Department Office of Professional Responsibility conducted an administrative review of the incident and found Cabrera, De La Rosa, and Lara “did not violate any rules and policies from the City of Mission or the Mission Police Department.”[217] The Mission Police Department also brought in Ranger Callaway to conduct an outside investigation, and Ranger Callaway submitted the Investigation to the Hidalgo County District Attorney's Office.[218] On March 7, 2017, the Grand Jury for the 139th Judicial District Court returned a No. Bill for the offense of Manslaughter as to Cabrera, De La Rosa, and Lara.[219]

         vi. Factual Disputes

         Plaintiff contends that several issues constitute factual disputes. The Court will briefly consider Plaintiff's contentions before turning to its legal analysis.

         1. Initial Rifle Shot

         Plaintiff argues there is a dispute of fact regarding whether the initial rifle round shot by Lara struck Decedent. Plaintiff states, “[a]lthough [Officer Callaway] testified that he did not believe this first shot through the windshield, hit [Decedent], he was not sure because it is next to impossible to recreate bullet trajectories for vehicles.”[220] In support of this assertion Plaintiff cites testimony by Ranger Callaway.[221] The Court finds Plaintiff's factual assertion is not supported by the cited evidence.

         At no point did Ranger Callaway indicate he was ‘unsure' of his conclusion that the rifle bullet did not hit Decedent. Instead, Ranger Callaway testified he believed the rifle shot through the windshield did not hit Decedent.[222] The portion of the deposition cited by Plaintiff concerns another analysis technique involving “trajectory rods, ” which can determine the trajectory of a shot.[223] In discussing the trajectory rod analysis of this shooting, Ranger Callaway indicated that because the officers and the vehicle were moving, it would be “very difficult to get an accurate representation of where the shot originated.”[224] Even given this limited analysis, Ranger Callaway did not “believe it [the rifle bullet] struck Decedent, ” and instead “believe[d] it lodged itself in the back corner of the vehicle.”[225] However, Ranger Callaway could not “confirm” this analysis because “everything move[d].”[226]

         Being unable to definitely confirm a conclusion through a specific test does not equate to a lack of confidence in the conclusion. The testimony cited by Plaintiff does not support that Ranger Callaway was “not sure, ” and instead shows Ranger Callaway maintaining his conclusion that the rifle bullet did not strike Decedent. Plaintiff's own expert consult agrees with Ranger Callaway's analysis that the rifle shot did not strike Decedent.[227] Thus, the Court concludes the evidence indicates the rifle shot through the windshield did not strike Decedent.

         2. Netherton Testimony

         Plaintiff argues Netherton “witnessed the entire incident”[228] and “testified that [Decedent] did not do anything inside the truck as Lara began shooting.”[229] On this basis, Plaintiff asserts there is a factual dispute between Netherton's version of Decedent's actions and the witness testimony of Cabrera, Lara, and Rinehart.[230] The Court determines that the evidence does not support Plaintiff's characterization of Netherton's testimony, and that Netherton's testimony does not contradict the testimony of Cabrera, Lara, and Rinehart.

         In a summary judgment motion, “the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.”[231] However, the court should also consider “evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.”[232] Additionally, the nonmoving party “cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.'”[233] Merely because evidence in the record “does not contradict an offered theory does not mean that the theory can also be reasonably inferred from it.”[234] Finally, because this motion for summary judgment concerns qualified immunity, the evidentiary burden is on Plaintiff to show Defendants are not entitled to qualified immunity.[235]

         Here, drawing all reasonable inferences in favor of Plaintiff, the Court finds Netherton was not in a position to “witness the entire incident” as asserted by Plaintiff. Netherton testified she went in the house and then came back outside and viewed a portion of the incident while standing on her back porch, [236] and conceded she could not see Decedent's actions in the truck while she was on the porch.[237] Thus, even according to her own testimony, Netherton could not have witnessed the “entire incident.” Similarly, the record does not support Plaintiff's assertion that Netherton testified “[Decedent] did not do anything inside the truck as Lara began shooting.” Although, Plaintiff does not specify which “shooting” he is referring to, the Court assumes Plaintiff is indicating Lara's handgun shots.[238] As the Court has already explained, Netherton's testimony does not clearly indicate when she was under the tree, when she was on her porch or what she saw while in those locations. At best, Netherton's deposition testimony is ambiguous regarding whether she witnessed any of Decedent's actions in the truck.[239]

         Even assuming Netherton was able to view Decedent's actions in the truck at some point, nowhere does Netherton state she witnessed Decedent's actions “as Lara began shooting.” Plaintiff points to no portion of Netherton's deposition testimony that could support such.

         Plaintiff cites to the following portion of Netherton's deposition:

Q: After the truck hit the tree, could you-could you see whether the driver was doing anything inside the truck? Netherton: Wasn't doing anything.[240]

         This contains no reference to any specific period of time. However, when Netherton's deposition testimony is read in context, Netherton indicates that she believed Decedent “was already gone” at that moment, [241] and then refers to the truck rolling backwards, which occurred after Lara had stopped shooting.[242] Plaintiff additionally cites to testimony by Ranger Callaway who interviewed Netherton a few days after the incident.[243] However, Ranger Callaway testified that “[a]ll [Netherton] saw was how it ended.”[244] Thus, none of the evidence cited by Plaintiff establishes that Netherton testified that Decedent “wasn't doing anything inside the truck as Lara began shooting” as Plaintiff asserts.

         Plaintiff provides no timeline or analysis of any other evidence in the record to support Plaintiff's assertion that Netherton's testimony was in reference to the time “as Lara began shooting.” The Court on its own considers the record and determines there is no evidence to support Plaintiff's claim that Netherton's testimony is in reference to “as Lara began shooting.” Netherton testified that after the crash she “went in the house, ” and when she came back outside the police officers “were shooting.”[245] Thus, her testimony supports a reasonable inference that Netherton was testifying she came outside during Lara's shots. Additionally, Netherton's testimony does not contain any reference to seeing Lara shooting with a handgun. However Netherton does testify she witnessed events that occurred after Lara stopped shooting: the truck rolling backwards, [246] De La Rosa hitting the windshield of the truck, [247] and De La Rosa shooting the window of the truck.[248] Further, the photograph of Netherton shows Netherton on the porch sometime after Lara began shooting, [249] and De La Rosa testified that by the time Netherton was “out of the way, ” the initial shots were over.[250]

         Accordingly, while this evidence does not definitely indicate that Netherton's testimony could not be in reference to Decedent's actions in the truck at the moment Lara began shooting, neither does the evidence provide any support for such a theory.[251] The Court finds Plaintiff's citation to Netherton's testimony is ‘only a scintilla of evidence' and insufficient to meet Plaintiff's burden and defeat a motion for summary judgment.[252] Plaintiff, therefore, has not provided evidence sufficient to reasonably infer that Netherton's testimony was in reference to the moment Lara began shooting.

         The Court now turns to the remaining testimony regarding Decedent's actions in the truck at the moment Lara began shooting. Although the Court must make all reasonable inferences in favor of Plaintiff, the Court must also consider evidence in favor of Defendants that is “uncontradicted and unimpeached, ” at least such evidence that comes from “disinterested witnesses.”[253] Given that Plaintiff points to no evidence that Netherton was testifying she saw Decedent's actions in the truck as Lara began shooting, the Court must consider as uncontradicted the evidence of the other witnesses who testified as to Decedent's actions during that time.

         Cabrera, Lara, and Rinehart each testified he was in a position to view the entire shooting, including as Lara began shooting, [254] and each testified that throughout the shooting Decedent attempted to place the truck in reverse, continued moving, and did not heed commands.[255] Even were the Court to disregard the testimony of Cabrera and Lara as interested witnesses, Rinehart, a community member, is disinterested, and corroborates the testimony of Lara and Cabrera.

         Accordingly, the Court finds that Netherton's testimony does not indicate she was testifying regarding Decedent's actions at the moment Lara began shooting, and absent any contradicting evidence, the Court must consider the testimony of Cabrera, Lara, and Rinehart regarding Decedent's actions inside the truck as Lara began shooting. The evidence before the Court-and the lack of specific facts to the contrary-requires the Court to conclude Plaintiff has failed to contradict Defendants' evidence that Decedent was moving in the truck, attempting to put the car in reverse, and failing to obey the officers' commands throughout the period Lara was firing his handgun.

         3. Lara's Credibility

         Plaintiff alleges there are discrepancies in Lara's testimony that indicate Lara's version of events are not credible. Namely, Plaintiff argues: (1) Lara did not command bystanders to get out of the way as he stated in his deposition testimony; (2) Lara did not fire his rifle in the street as Lara originally testified; and (3) Lara's unit was not disabled by the impact with Decedent's truck as Lara initially claimed.[256]

         A motion for summary judgment cannot be defeated solely by “conclusional allegations that a witness lacks credibility.”[257] Additionally, the “failure to remember certain details does not amount to a ‘well-supported suspicion of mendacity' which is required to undermine an affiant's credibility.[258]

         Plaintiff raises no issue that would undermine the credibility of Lara's testimony. That bystanders may not have heeded Lara's command to leave the area, or that other individuals may have been in the area who did not hear Lara's command, does not raise a reasonable inference that Lara did not give any commands or that Lara's testimony is lacking in credibility.

         Plaintiff's next claim amounts to no more than that Lara's memory was imperfect. This does not raise “well-supported suspicion of mendacity.”[259] Lara's position when he fired the rifle shot is unclear from the evidence in the record and his exact location when he fired the rifle is a matter of difference of, at most, a few seconds and a few feet.[260] That Lara may not have accurately remembered his location does not indicate any mendacity.

         Finally, Plaintiff's claim that Lara stated in his deposition that his unit was not disabled by Decedent striking his vehicle is not supported by Lara's deposition testimony. Lara indicates he could reverse his vehicle by a short distance after the collision, [261] but the vehicle could not go more than “about a couple feet.”[262] This does not indicate mendacity or in any way undermine Lara's credibility. Accordingly, the Court finds Plaintiff's arguments regarding Lara's credibility are unwarranted.

         4. Lara's Perceptions

         Plaintiff raises a number of issues regarding Lara's perceptions that Plaintiff contends raises disputes of fact, or again, serve to impeach Lara's credibility. Plaintiff argues that (1) Lara must have known Officer Cabrera had not been killed or injured;[263] (2) Lara could not have reasonably perceived his unit was intentionally struck by Decedent;[264] (3) Lara could not have reasonably perceived that his unit was disabled when Decedent struck it;[265] and (4) it was unreasonable for Lara to believe Decedent's truck was operable after the crash.[266]

         The Court finds that none of these are disputes of fact, nor do they implicate Lara's credibility. Plaintiff provides no evidence that the events did not happen or that Lara did not perceive those events. Plaintiff does not dispute the “information available to” Lara.[267] Instead, Plaintiff makes arguments regarding what Lara should have concluded based on those events.

         However, as Plaintiff concedes, Lara's subjective intent and motivations are irrelevant.[268]At issue is whether Lara's actions were objectively reasonable in light of the facts as Lara perceived them, and the reasonableness of Lara's actions are a question of law.[269] Thus, the Court considers the reasonableness of Lara's actions in its legal analysis, to which it now turns.

         c. Legal Analysis

         This motion for summary judgment concerns Plaintiff's only remaining claims: Fourth Amendment excessive force claims brought under 42 U.S.C. § 1983 against De La Rosa and Lara. Defendants only challenge Plaintiff's claims on grounds that De La Rosa and Lara are entitled to qualified immunity.[270]

         Because Defendants have invoked qualified immunity, the burden shifts to Plaintiff to show the defense is not available.[271] But where factual disputes exist, the Court accepts Plaintiff's version.[272] However, to overcome qualified immunity, Plaintiff bears the burden of negating the defense and “cannot rest on conclusory allegations and assertions but must demonstrate genuine issues of material fact regarding the reasonableness of the officer's conduct.”[273] To meet his burden Plaintiff must show two things: (1) that the allegations make out a constitutional violation, and (2) that “the conduct was ‘objectively unreasonable in light of clearly established law.'”[274]

         Courts may “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”[275] Because Defendants do not challenge whether there is any constitutional violation, the Court will consider the second prong first: whether the conduct of De La Rosa and Lara was objectively unreasonable in light of clearly established law.

         An officer is entitled to qualified immunity from a suit for damages if “a reasonable officer could have believed the actions to be lawful, in light of clearly established law and the information the officers possessed” at the time of the incident.[276] Even if enforcement officials err “they would be entitled to qualified immunity if their decision was reasonable, albeit mistaken.”[277] “[Q]ualified immunity purposefully shields police officers' split-second decisions made without clear guidance from legal rulings.”[278]

         “The ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”[279] This is an objective standard: “the question is whether the officers' actions are ‘objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.”[280]

         Potentially deadly force is objectively reasonable where the officer “has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.”[281] Whether the use of force was reasonable or excessive depends upon the totality of the circumstances, including: the severity of the crime, amount of force used contrasted with the amount of force needed, whether the suspect posed a safety risk to police or the public, and whether the suspect was actively resisting arrest or evading arrest by flight.[282] The court “must consider all of the circumstances leading up to [the moment deadly force is used], because they inform the reasonableness of [the officer's] decisionmaking.”[283] “The calculus of reasonableness must embody allowance for the ...

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