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Sanchez v. Gomez

United States District Court, W.D. Texas, El Paso Division

July 24, 2019

CELIA SANCHEZ and OSCAR SALAS, statutory death beneficiaries of ERIK EMMANUEL SALAS-SANCHEZ, Plaintiffs,
v.
MANDO KENNETH GOMEZ, ALBERTO RIVERA, PAMELA SMITH, and the CITY OF EL PASO, TEXAS, Defendants.

          MEMORANDUM OPINION AND ORDER

          PHILIP R. MARTINEZ UNITED STATES DISTRICT JUDGE

         On this day, the Court considered the following submissions filed in the above-captioned cause:

• Defendant Pamela Smith's [hereinafter “Defendant Smith”] “Motion for Summary Judgment” (ECF No. 140) [hereinafter “Smith Motion”], filed on April 30, 2019;
• Defendant Alberto Rivera's [hereinafter “Defendant Rivera”] “Motion for Summary Judgment” (ECF No. 141) [hereinafter “Rivera Motion”], filed on April 30, 2019;
• Defendant Mando Kenneth Gomez's [hereinafter “Defendant Gomez”] “Motion for Summary Judgment” (ECF No. 145) [hereinafter “Gomez Motion”], filed on May 1, 2019;
• Plaintiffs Celia Sanchez and Oscar Salas, statutory death beneficiaries of Erik Emmanuel Salas-Sanchez's [hereinafter “Plaintiffs”] “Response to Defendant Smith's Motion for Summary Judgment” (ECF No. 170) [hereinafter “Response to Smith”], filed on June 14, 2019;
• Plaintiffs' “Response to Defendant Rivera's Motion for Summary Judgment” (ECF No. 171) [hereinafter “Response to Rivera”], filed on June 14, 2019;
• Plaintiffs' “Response to Defendant Gomez's Motion for Summary Judgment” (ECF No. 172) [hereinafter “Response to Gomez”], filed on June 14, 2019;
• Defendant Smith's “Reply to Plaintiffs' Response to Defendant's Motion for Summary Judgment” (ECF No. 178) [hereinafter “Smith Reply”], filed on June 28, 2019;
• Defendant Rivera's “Reply to Plaintiffs' Response to Defendant's Motion for Summary Judgment” (ECF No. 179) [hereinafter “Rivera Reply”], filed on June 28, 2019;
• Defendant Gomez's “Reply in Support of His Motion for Summary Judgment” (ECF No. 184) [hereinafter “Gomez Reply”], filed on July 1, 2019; and
• Plaintiffs' “Surreply to Defendant Gomez's Reply in Support of His Motion for Summary Judgment” (ECF No. 187) [hereinafter “Surreply to Gomez”], filed on July 8, 2019.

         In their Motions, Defendants argue that they are entitled to summary judgment because their actions are covered by qualified immunity. After due consideration, the Court is of the opinion that Defendants Gomez's and Rivera's Motions should be denied and Defendant Smith's Motion should be granted, for the reasons that follow.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This case arises out of an officer-involved fatal shooting on April 29, 2015. Erik Sanchez-Salas was shot inside his family home and died as a result of the shooting.[1] In this section, the Court first describes the incident at Louisa Romero's home that gave rise to police officers responding to a call regarding Mr. Salas-Sanchez. Then, the Court discusses the facts surrounding the officer Defendants' interactions with Mr. Salas-Sanchez and his mother, Celia Sanchez, at Sanchez's home before officers entered her home. The Court then describes the parties' allegations about what happened after the officers entered the home, including the use of force. Finally, the Court briefly describes relevant procedural history related to this suit.

         A. Factual Background

         1. The Incident at Romero's Home

         On April 29, 2015, Romero found Mr. Salas-Sanchez inside her home and sitting on her living room couch. Rivera Mot. Ex. E (Trial Tr.), at 25:17-26:9. Romero recognized Mr. Salas-Sanchez as her neighbor, but she did not know him personally and had not previously spoken with him. Id. at 35:1-6.

         During a state court proceeding related to the occurrences giving rise to this case, Romero testified that she “was scared” when she found Mr. Salas-Sanchez. Id. at 26:21. She also testified that Mr. Salas-Sanchez stood up from the couch and “started walking to where [Romero's] son was” and that Mr. Salas-Sanchez stared at her son while touching his own face and legs but did not threaten her son. Id. at 27:1-19. Further, Romero did not see a weapon while Mr. Salas-Sanchez was present in her home and recalled that Mr. Salas-Sanchez did not threaten anybody in the home nor appear to be looking around the home. Id. at 28:6-9, 29:1-2.

         According to Romero, she “told him on several occasions to get out of the house, ” and eventually Mr. Salas-Sanchez left. Id. At 28:20-29:9. After Mr. Salas-Sanchez left the home, Romero locked her door. Id. at 29:22-23. Mr. Salas-Sanchez returned to Romero's home and attempted to reopen her door several times before finally walking across the street to his mother's home, where Mr. Salas-Sanchez resided. Id. at 30:4-18.

         Romero called the police and reported the incident. Id. at 30:1-2. Officer Rivera drove to Romero's home and spoke with Romero. Id. at 31:22-24. Romero told Rivera that she did not want Mr. Salas-Sanchez to return to her home but indicated that she also did not intend to press charges. Id. at 31:2-12. Rivera then left Romero's home and walked across the street to Sanchez's home. Id. at 31:13-19.

         2. Officers' Initial Approach of Sanchez's Home

         During his deposition, Rivera testified that he saw Officer Gomez arrive at the scene as he approached Sanchez's home.[2] Rivera Dep. Tr.[3]at 45:7-12. Rivera informed Gomez that Mr. Salas-Sanchez had entered a home where he was unwanted and attempted to return after leaving and that the homeowner “didn't want anything done other than us going across the street and letting him know not to do that again.” Id. at 46:3-19. Officers Rivera and Gomez then approached Sanchez's home. Id. at 46:22. Rivera had no intent of arresting Mr. Salas-Sanchez at that time. Id. at 48:1-3.

         Plaintiff Sanchez was at home on April 29, 2015, along with her daughter, Nora Salas-Sanchez, who was Mr. Salas-Sanchez's twin sister. See Sanchez Dep. Tr.[4] at 48:5-11. Sanchez testified that, after she went outside to respond to the officer who knocked on her door, [5] the officer asked Sanchez if Mr. Salas-Sanchez was home and whether he was okay. Id. at 50:10-22. At this time, Mr. Salas-Sanchez was inside the home. See Id. After confirming that Mr. Salas-Sanchez was inside the home, Sanchez returned to talk to the officers. Id. at 58:25-59:9.

         3. Mr. Salas-Sanchez's Conduct While the Officers were Outside the Home

         The parties agree that Sanchez and the officers spoke to each other in front of Sanchez's home. However, the witnesses' individual recollections of Mr. Salas-Sanchez's behavior and interactions with the officers and his mother vary significantly.

         a. Defendant Gomez's allegations

         According to Defendant Gomez, after he arrived at the home, Sanchez stepped outside to speak to the officers and told Gomez that her son had been exhibiting behavioral issues and she believed her son might be using drugs or having a mental breakdown. Pl. App. Ex. H (Sealed Report), at 8. Gomez reported that Mr. Salas-Sanchez then came to the door and said, “[W]hat do you want [f**kers]?” Pl. App. Ex. K (Sealed Report), at 1. Then, after being asked to step outside, Mr. Salas-Sanchez replied, “[N]o way [f**ker] you know who I am, all of you know who I am.” Id. Then, Sanchez told her son to “shut up” and go back inside, and her son closed the door. Id. at 2.

         Gomez reported that Mr. Salas-Sanchez reopened the door and told Gomez that he would take Gomez's gun and shoot him with it. Id. Mr. Salas-Sanchez proceeded to open and close the door “six to eight times” while the officers spoke with his mother. Pl. App. Ex. H (Sealed Report), at 13. During one of the times that he opened the door, Mr. Salas-Sanchez formed his hand into a “gun-like shape, pointing at [the officers], and laughing” while stating he would kill the officers. Pl. App. Ex. K (Sealed Report), at 2.

         Later, Gomez observed “some type of long heavy object hanging from inside [Mr. Salas-Sanchez's] front sweater pocket as he opened the door.” Id. Gomez told Rivera to watch out for the object. Id.

         Gomez stated that he then asked Sanchez to control Mr. Salas-Sanchez and to bring Mr. Salas-Sanchez back to his room. Id. Gomez also told Sanchez that her son had made a gun-like gesture with his hand. Pl. App. Ex. H (Sealed Report), at 18. Then, the mother begged Mr. Salas-Sanchez to go to his room and began to push her son toward his room. Pl. App. Ex. K (Sealed Report), at 2. Gomez recalled that Sanchez began to “pound and hit” her son, who “proceeded to push the mother back.” Pl. App. Ex. H (Sealed Report), at 18.

         b. Defendant Rivera's allegations

         According to Rivera, while the officers were talking to Sanchez, Mr. Salas-Sanchez yelled at the officers “to leave, that he didn't [f**king] want us there, to come to the door because he was going to take our weapons and kill us.” Rivera Dep. Tr. at 61:23-25. After closing the door, Mr. Salas-Sanchez then “opened the door and said ‘[f**k] you' and he gets into a stance with a black object in his hands, in a shooting manner.” Id. at 64:5-8. Rivera perceived the black object to be a gun. Id. at 67:6-68:2. Mr. Salas-Sanchez later reopened the door, assumed a shooting stance, and threatened the officers; his mother then ran towards Mr. Salas-Sanchez and “blocked” the officers and “shield[ed]” her son. Id. at 73:12-19.

         Further, Rivera testified that Mr. Salas-Sanchez then reopened the door and walked outside the home and that Sanchez then “kind of hugged him and was pushing him inside the house.” Id. at 75:1-14. Mr. Salas-Sanchez brandished the black object while Sanchez was hugging her son; Rivera pointed his service weapon at Mr. Salas-Sanchez during this time but did not shoot the weapon because “the mother's right on top of him.” Id. at 76:7-77:17. Rivera reported that he ordered Mr. Salas-Sanchez to drop the unknown black object but did not recall any other officer giving any verbal commands. Pl. App. Ex. J (Sealed Report), at 5.

         Additionally, Rivera testified that, after Mr. Salas-Sanchez returned inside the home, Mr. Salas-Sanchez and his mother began “playing tug-o-war . . . with the door” as Mr. Salas-Sanchez attempted to open it and the mother held it shut. Rivera Dep. Tr. at 84:25-85:6.

         Rivera reported that Mr. Salas-Sanchez moved the curtains near the front window, yelling that he would kill the officers, and that Sanchez told her son to stop and to close the curtains. Pl. App. Ex. G (Sealed Report), at 2. After closing the curtain, Mr. Salas-Sanchez then allegedly sat with his back against the door frame and began to rock back in forth while holding the black object in his hand. Rivera Dep. Tr. at 91:6-12. A few seconds later, Mr. Salas-Sanchez got up and again told the officers they were going to die and then began to walk toward the officers outside the home. Id. at 96:20-14. Sanchez pushed her son back into the home with both hands on his chest.[6] Id. at 97:19-98:17.

         Rivera believed that Mr. Salas-Sanchez was “angry” and not “in the right state of mind.” Id. at 101:5-12. Thus, Rivera determined that an emergency detention order (“EDO”)[7] would be appropriate based on Mr. Salas-Sanchez's actions coupled with his mother's prior statement that she had tried to get her son help. Id.

         c. Defendant Smith's allegations

         Smith asserts that, after she arrived at the home, Sanchez appeared to be upset and told the officers that her son had not been acting like himself and that Sanchez did not know what to do in response. Smith Dep. Tr. at 101:2-102:17. Smith stated that she arrived at the home while Gomez and Rivera were talking with Sanchez and that she greeted the mother after arriving. Id. at 99:4-100:19.[8]

         Smith testified that, from behind the home's screen door, Mr. Salas-Sanchez threatened that he would take the officers' weapons and kill them. Id. at 109:6-9. Mr. Salas-Sanchez opened the door and was holding a large black object. Id. at 111:6-13. Further, Smith perceived the object to be similar in size to a handgun. Id. at 113:11-14. Mr. Salas-Sanchez then lifted the black object before closing the door. Id. at 115:10-14. After Mr. Salas-Sanchez appeared at the door, Sanchez was screaming at her son to go inside and telling him to stop acting in this manner. Id. at 118:16-23. Then, Mr. Salas-Sanchez continued to yell at the officers from inside the screen door. Id. at 119:16-23.

         Mr. Salas-Sanchez reopened the door, sat down along the doorframe, and moved “in a rocking motion” with his arms near his feet and ankles. Id. at 122:1-14. After a few seconds of sitting in the doorway, Mr. Salas-Sanchez quickly stood up and closed the door. Id. at 123:21-124:3. Mr. Salas-Sanchez appeared in a window and then quickly reopened the wooden door. Id. at 129:6-19.

         Smith did not tell Mr. Salas-Sanchez to put down the object or ask what he was holding in his hands; she also did not recall hearing another officer ask Mr. Salas-Sanchez about the object or direct that he drop it. Id. at 140:13-141:21.

         Then, Mr. Salas-Sanchez and Sanchez were both inside the home; Mr. Salas-Sanchez was angry and shouting at his mother, but Smith did not hear him threaten his mother while he was shouting. Id. at 148:1-5, 149:7-14. Based on Mr. Salas-Sanchez's actions, Smith stated that she believed an EDO would be appropriate and quickly agreed with the other officers to effectuate an EDO. See Id. at 148:6-9. According to Smith, after the officers decided to effectuate the EDO, they entered the home. Id. at 170:17-25.

         d. Plaintiff Sanchez's allegations

         Sanchez agrees with Defendants that Mr. Salas-Sanchez yelled to the officers outside while the officers were speaking with her. Sanchez Dep. Tr. at 60:1-13. However, Sanchez disagrees with Defendants about what Mr. Salas-Sanchez said to the officers. Sanchez recalled that Mr. Salas-Sanchez told the officers “to leave, that they have no business being there, that there's no reason for them to be there.” Id. at 60:1-13. Further, Sanchez stated that Mr. Salas-Sanchez “insulted” the officers by calling them “dogs” but that Mr. Salas-Sanchez never challenged the officers to enter the home, never threatened the officers, and never said that he would kill the officers. Id. at 64:7-12, 68:13-25.

         Additionally, Sanchez stated that Mr. Salas-Sanchez never opened and closed the door and that she never had to hold the door shut to prevent Mr. Salas-Sanchez from opening it. Id. at 65:1-15. Sanchez did not recall pushing her son back inside the house or physically touching him in any way; she recalled only moving her hands to indicate that he should go back down the home's hallway. Id. at 65:20- 66:25. Sanchez did not see her son pick up or hold any object in his hands. Id. at 70:3-6.

         e. Witness Ms. Salas-Sanchez's allegations

         According to Ms. Salas-Sanchez, her brother called the officers “dogs” but never cursed at or threatened the officers. Salas-Sanchez Dep. Tr.[9] at 110:1-20. Further, she never saw her mother attempt to push or hit her brother, never saw her brother attempt to push or hit her mother, and never saw her mother and brother disagree about her brother going back inside the home. Id. at 60:21-4.

         4. Officers' Entry into the Home and Use of Force

         The officers entered Sanchez's home without a warrant or consent. The parties do not dispute that Defendant Rivera deployed his taser at Mr. Salas-Sanchez. The taser hit but did not immobilize Mr. Salas-Sanchez. Additionally, the parties agree that Defendant Gomez shot his service weapon. The injuries from the gunshots resulted in Mr. Salas-Sanchez's death.

         However, individual recollections differ regarding what happened while the officers entered the home and what occurred leading up to Rivera's and Gomez's uses of force. Below, the Court describes each witness's allegations.

         a. Defendant Gomez's allegations

         According to Defendant Gomez, he entered the home “because [he] observed [Mr. Salas-Sanchez]'s mother attempting to push [Mr. Salas-Sanchez] into the hallway with both of her hands.” Pl. App. Ex. H (Sealed Report), at 19. Mr. Salas-Sanchez and his mother were “assaulting each other as they [were] both struggling and pushing each other.” Id.

         After entering the home, Gomez observed that Mr. Salas-Sanchez was holding an object. According to Gomez,

As he held [the object] over his mother's head with both hands, [Mr. Salas-Sanchez] held it like a normal person would hold a gun. Officer Rivera advised me that the weapon was indeed a gun and at that time I truly believed that I was about to get shot and going to die. It was not until I stepped a few steps to the right into the living room area that I observed the weapon was a machete type knife without a handle.

Id. at 22. Additionally, Gomez reported that, while the mother was pushing her son toward his room, Mr. Salas-Sanchez “produced a long knife-like weapon from inside his sweater pocket and pointed it at us over his mother's head as if he was holding a gun at a sideways angle.” Pl. App. Ex. K (Sealed Report), at 2.

         Gomez and Rivera “both gave [Mr. Salas-Sanchez] loud and clear verbal commands” to put down the weapon. Pl. App. Ex. H (Sealed Report), at 26. Gomez stated that he told Ms. Sanchez-Salas to go in another room with her baby, but that Ms. Salas-Sanchez declined to leave the room and responded, “don't worry it's not a gun.” Id.; Pl. App. Ex. K (Sealed Report), at 2. Gomez responded to her, “I don't care he better put whatever he has in his hand down right now.” Pl. App. Ex. K (Sealed Report), at 2. Gomez asserted that Mr. Salas-Sanchez's mother and sister were also telling him to put down the weapon. Id. Specifically, Sanchez attempted to take away her son's weapon and yelled at him to calm down and let go of the object. Pl. App. Ex. H (Sealed Report), at 23.

         Gomez reported that the officers then proceeded further into the residence, and Gomez told Sanchez, “get out of the way senora watch out.” Pl. App. Ex. K (Sealed Report), at 3. Sanchez moved out of the way and stood by Ms. Salas-Sanchez. Id. Then, Mr. Salas-Sanchez held a knife, giggled, and said, “I'm going to kill you [expletive].” Id. Rivera then deployed the taser, but it was ineffective. Id.

         Gomez alleged that Mr. Salas-Sanchez then came “out of the kitchen with his arm raised up, pointing [a knife] directly at me.” Id. Gomez then slipped on a rug and fired his weapon four times while falling backward onto the couch. Pl. App. Ex. H (Sealed Report), at 33. Mr. Salas-Sanchez was then lying on the ground-after the gunshots had hit his body-and Gomez holstered his weapon and summoned medical assistance to the scene. Pl. App. Ex. K (Sealed Report), at 3.

         b. Defendant Rivera's allegations

         According to Rivera, while both he and Mr. Salas-Sanchez were outside the home, he pulled out his taser and informed Gomez he had his taser ready. Rivera Dep. Tr. at 104:4-9. Mr. Salas-Sanchez saw the taser's small red light and “turn[ed] around and trie[d] to go back inside the house.” Id. at 104:9-13. Additionally, Rivera testified that the taser takes five seconds to deploy; therefore, while the five seconds were “counting down, ” Mr. Salas-Sanchez had “time to walk inside his residence.”[10] Id. at 104:14-21. By the time the taser deployed, Mr. Salas-Sanchez was inside the home. Id. at 112:1-3.

         After deploying, the taser probes “hooked up onto . . . [Mr. Salas-Sanchez's] sweater” but because the sweater was “overlarge, ” the taser probe did not make contact with Mr. Salas-Sanchez's skin and “didn't give him the full effect of him actually falling to the ground with it.” Id. at 112:6-11. Rivera further stated that Mr. Salas-Sanchez “did feel a little bit of [the taser's effect] . . . so he yelled out an ‘ah,' like - like a grunt. But he kept on running towards the back of the house.” Id. at 112:12-15. The taser wires stayed connected to Mr. Salas-Sanchez. Id. at 115:21-22.

         Mr. Salas-Sanchez ran into the dining room area when the taser's probe hit him and then continued into the kitchen. Id. at 115:15-19, 117:23-25. Mr. Salas-Sanchez then moved toward the hallway while inside the kitchen, and Rivera saw a black object in Mr. Salas-Sanchez's hands that was pointed down toward the ground. Id. at 118:22-119:9.

         Rivera retreated with the intent to use the taser again if Mr. Salas-Sanchez moved in his direction. Id. at 119:17-22, 121:2-5. The other officers were out of his line of sight when Rivera heard gunshots. Id. at 121:6-20. Rivera turned and saw Mr. Salas-Sanchez “turn at the same time” and get hit. Id. at 123:1-3.

         After Mr. Salas-Sanchez was handcuffed and while the officers waited for medical assistance, Rivera did not search for an object that might have been the weapon Mr. Salas-Sanchez was holding. Id. at 159:2-7. Additionally, although Rivera believed Mr. Salas-Sanchez had been holding a pistol, Rivera testified that he never saw an object found at the scene that he believed to be the alleged weapon. Id. at 159:8-16.

         c. Defendant Smith's allegations

         According to Smith, she entered the home and saw Sanchez pushing her son back into the home's hallway. Smith Dep. Tr. at 178:2- 15. She then saw Ms. Salas-Sanchez walk through the hallway holding her young son, and Smith asked Ms. Salas-Sanchez to go outside. Id. at 179:1-21. Smith recalled that Ms. Salas-Sanchez exited the door to go outside. Id. at 179:20-21. Then, Smith asked Sanchez to leave the home and walked Sanchez outside the home. Id. at 180:7-16. After escorting Sanchez out of the home, Smith stayed inside and joined the officers. Id. at 181:25-182:5.

         Smith saw Mr. Salas-Sanchez running into the kitchen and away from the officers. Id. at 189:14-20. Then, Smith heard the sound a taser makes before deploying and heard Rivera tell the other officers that he was going to tase Mr. Sanchez-Salas. Id. at 190:8-11. She then heard Mr. Salas-Sanchez make a “grunt” noise which indicated that the taser probes had made contact. Id. at 190:13-16. Mr. Salas-Sanchez continued to run, and Smith was unable to see his hands or ascertain whether he was holding any object. Id. at 195:5-13.

         According to Smith, Mr. Salas-Sanchez ran into the kitchen and Smith lost sight of him; then, Mr. Salas-Sanchez “jumped back out” into sight and was facing the officers. Id. at 200:5-11. Mr. Salas-Sanchez began moving toward Gomez while clasping an object that appeared to be a weapon[11]; he then leapt toward Gomez. Id. at 200:14-20, 204:24- 205:5.

         Smith alleges that she then tripped while stepping backwards and Gomez stepped backwards as well. Id. at 205:10-17. While falling backwards, Smith saw flashes from Gomez's firearm. Id. at 205:17-20. Smith stated, “the last that I saw was of [Mr. Salas-Sanchez] moving forward with - with his hands out.” Id. at 205:25-206:1. Smith could not recall how many shots she heard inside the home. Id. at 209:18-23. Additionally, Smith asserted that she did not remember hearing either Rivera or Gomez give any commands or warnings to Mr. Salas-Sanchez before using force. Id. at 209:1-14.

         d. Witness Ms. ...


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