United States District Court, S.D. Texas, McAllen Division
OPINION AND ORDER
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 www.forcescience.org
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 ...