United States District Court, W.D. Texas, Austin Division
ALBINA ROQUE and VICENTE ROQUE, Individually and as Heirs at Law to the Estate of Jason Roque, and on behalf of all wrongful death beneficiaries, Plaintiffs,
JAMES HARVEL, in his individual capacity, and THE CITY OF AUSTIN, TEXAS, Defendants.
HIGHTOWER UNITED STATES MAGISTRATE JUDGE.
the Court are five motions regarding evidence offered with
the parties' briefing on summary judgment. (Dkt. Nos. 66,
75, 76, 108, 112). The District Court referred the motions to
the undersigned for disposition pursuant to 28 U.S.C. §
636(b)(1)(A), Federal Rule of Civil Procedure 72, and Rule
1(c) of Appendix C of the Local Rules of the United States
District Court for the Western District of Texas
Albina Roque and Vicente Roque (“Plaintiffs”)
filed this action against James Harvel (“Harvel”)
and the City of Austin (“the City”) after the
death of their son, Jason Roque (“Roque”).
(Complaint, Dkt. No. 1). Plaintiffs allege that on May 2,
2017, the Austin Police Department received a 911 call that
Jason Roque had a BB gun and was threatening to harm himself.
(Id. ¶ 9). When officers arrived they
“realized he appeared suicidal.” (Id.
¶ 10). Plaintiffs allege that Roque made no threatening
movements or gestures toward the police or anyone else.
(Id. ¶ 11). “In full view of the
officers, Jason Roque produced a BB gun, pointed it as his
head, and asked the officers to kill him.”
(Id. ¶ 12). “Rather than attempt to
de-escalate the situation, multiple officers cornered Roque
and shouted at him repeatedly.” (Id. ¶
13). Defendant Harvel, an officer with the Austin Police
Department, was positioned several houses down. (Id.
¶ 14). Plaintiffs allege that Jason Roque “turned
away from the officers with the BB gun to his head, and
walked several steps away, still presenting no danger to
anyone except possibly himself.” (Id. ¶
17). When Roque's back was “partially turned,
” Harvel fired his rifle at Roque. (Id. ¶
18). The first shot was not fatal. (Id. ¶ 19).
Roque immediately dropped the BB gun, and from that point
forward he was unarmed. (Id.). At least two seconds
later, Harvel fired a second shot, striking Roque again.
(Id. ¶ 20). “Roque stumbled several yards
into the street.” (Id. ¶ 21). After two
more seconds, Harvel fired a third shot, killing Roque.
(Id. ¶ 22).
parents assert several causes of action against Harvel and
the City under 42 U.S.C. § 1983 (“Section
1983”) for violations of Roque's rights under the
United States Constitution. (Complaint, Dkt. No. 1
¶¶ 35-43). First, Plaintiffs claim that Harvel
violated Roque's Fourth Amendment right to be free from
the use of excessive force (the “excessive force
claim”). (Id. ¶¶ 35-38). Second,
Plaintiff Albina Roque asserts a bystander claim under
Section 1983 because she witnessed the death of her son
(“the bystander claim”). (Id. ¶
39). Third, Plaintiffs assert a Monell claim that
the City promulgated policies or practices that violated
Roque's Fourth and Fourteenth Amendment rights,
including, among others, inadequate training and
“[d]iscriminating against minority suspects by using
unwarranted deadly force at disproportionally higher
rates.” (Id. ¶¶ 25,
40-43). Harvel and the City each filed a motion
for summary judgment, which the parties have fully briefed.
The parties also filed several motions regarding the evidence
at summary judgment. Those motions are the subject of this
Plaintiffs moved to strike seven of Harvel's exhibits.
(Pls.' Mot. Strike, Dkt. No. 66). Second and third, the
City and Harvel each moved to exclude the proffered expert
testimony of Jeffrey J. Noble. (City Mot. Exclude, Dkt. No.
75; Harvel Mot. Exclude, Dkt. No. 76). Fourth, the City moved
to preserve the confidential designation for certain police
personnel records. (City Mot. Protective Order, Dkt. 108).
Fifth, the City moved to strike five of Plaintiffs'
exhibits. (City Mot. Strike, Dkt. 112). The Court addresses
each of these motions in turn.
Plaintiffs' Motion to Strike Harvel's Exhibits (Dkt.
seeks summary judgment on the basis of qualified immunity.
(See Dkt. No. 57, at 8-13). Plaintiffs argue that
the Court should strike Harvel's Exhibits A, B, E, F, S,
X, and Y because they concern information of which Harvel was
not aware before he fatally shot Jason Roque. (Pls. Mot.
Strike, Dkt. No. 66, at 1). The exhibits are:
Audio recording of the 911 calls by Jason Roque and
Plaintiff Albina Roque
Transcript of the 911 call by Jason Roque
Certified translation of the 911 call by Albina Roque
Affidavits of witnesses Myranda Carlson (Exhibit F)
and Aimee Rangel (Exhibit S)
Certified translation of Austin Police Department
(“APD”) Detective Pelayo's Interview
with Alvina Roque after the shooting
Two photographs of notes left by Jason Roque
Pls.' Mot. Strike, Dkt. 66, at 1; Harvel Resp., Dkt. 72,
at 1). Plaintiffs argue that “[b]ecause Defendant
Harvel was not aware of any of the facts reflected in these
exhibits, he could not have considered them in his decision
to use deadly force and kill Jason Roque.”
(Id.). Plaintiffs contend the exhibits therefore are
irrelevant and unduly prejudicial. Harvel responds that
determination of the reasonableness of his use of force
“can be assisted through evidence that shows Jason
Roque's motive, intent, preparation and plan to induce
Harvel to perceive the necessity to use deadly force.”
(Resp., Dkt. No. 72, at 2). He also argues that the evidence
is not sufficiently prejudicial to outweigh this probative
qualified immunity defense alters the usual summary judgment
burden of proof.” Brown v. Callahan, 623 F.3d
249, 253 (5th Cir. 2010). “Once an official pleads the
defense, the burden then shifts to the plaintiff, who must
rebut the defense by establishing a genuine fact issue as to
whether the official's allegedly wrongful conduct
violated clearly established law.” Id.
(quoting Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083
(2011)). Even when considering a qualified immunity defense,
however, the court must view the evidence in the light most
favorable to the nonmovant and draw all inferences in the
nonmovant's favor, Rosado v. Deters, 5 F.3d 119,
122-23 (5th Cir. 1993), and cannot make credibility
determinations or weigh the evidence, Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
Accordingly, the Court must decide (1) whether Harvel
“violated a statutory or constitutional right”
belonging to Roque; and (2) whether “the right was
‘clearly established' at the time of the challenged
conduct.” Morgan v. Swanson, 659 F.3d 359, 370
(5th Cir. 2011). The “dispositive inquiry in
determining whether a right is clearly established is whether
it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.”
Hernández v. Mesa, 137 S.Ct. 2003, 2007
(2017) (quoting Saucier v. Katz, 533 U.S. 194, 202
is relevant if (a) it has any tendency to make a fact more or
less probable than it would be without the evidence, and (b)
the fact is of consequence in determining the action.
Fed.R.Evid. 401. “Facts an officer learns after the
incident ends-whether those facts would support granting
immunity or denying it-are not relevant.” Cole v.
Carson, 935 F.3d 444, 456 (5th Cir. 2019) (en banc)
(quoting Hernández, 137 S.Ct. at 2007).
“The qualified immunity analysis thus is limited to
‘the facts that were knowable to the defendant
officers' at the time they engaged in the conduct in
question.” Hernández, 137 S.Ct. at 2007
(quoting White v. Pauly, 137 S.Ct. 548, 550 (2017)
(per curiam)). In Hernández, the Supreme
Court ruled that because a border patrol agent did not know
Hernández's nationality or the extent of his ties
to the United States at the time of the shooting, the Court
of Appeals erred in holding that the agent was entitled to
qualified immunity based on those facts. Id.; see also
Cole, 935 F.2d at 456. (“[L]ooking at the evidence
in the light most favorable to the [plaintiff], [the
officers] were not aware of the disturbance at the Coles'
house the previous night, the alleged cache of weapons left
at the Reeds' house, Ryan's alleged suicidal threat,
or his threat to shoot anyone who came near him.”).
does not contend that he knew of the content of either of the
911 calls at the time that he shot Roque. (See
Harvel Resp., Dkt. 72, at 3-6). Harvel suggests that
“[t]he statements of Mrs. Roque during the 911 call
clearly indicate her present sense impression that Jason
Roque posed a threat to her, ” but concedes that
“Officer Harvel did not know of Mrs. Roque's fear
of Jason Roque . . . before the shooting.”
(Id. at 3, 4). Because Harvel does not dispute that
he had no knowledge of either 911 call, the Court concludes
that Exhibits A, B, and E of his motion are irrelevant to his
motion for summary judgment. The Court therefore strikes
Exhibit A (Dkt. No. 57-1), Exhibit B (Dkt. No. 57-2), and
Exhibit E (Dkt. No. 57-5) from Harvel's motion for
the affidavits of Ms. Carlson and Ms. Rangel, who saw the
shooting from inside their homes, Harvel also does not
dispute that he had no knowledge of their perceptions or
their testimony at the time of the shooting. (Harvel Resp.,
Dkt. 72, at 4-5). Harvel specifically concedes that he
“did not know that Ms. Carlson simultaneously witnessed
Jason Roque's actions and shared Harvel's fear of
Roque.” (Id. at 4). Because he does not
dispute that he learned of the testimony of these two
witnesses only after the shooting, the Court also strikes
Exhibits F and S from Harvel's motion for summary
judgment. (See Carlson Aff, Dkt. No. 57-6; Rangel
Aff, Dkt. No. 57-19).
Court reaches the same conclusion regarding Exhibit X, the
APD interview with Alvina Roque, (Dkt. No. 57-24), and
Exhibit Y, the photographs of notes left by Jason Roque.
(Dkt. No. 57-25). Even if, as Harvel contends, this evidence
would tend to show that Jason Roque sought to take his own
life by causing officers to believe that he posed an
immediate and serious threat to himself and others, Harvel
does not dispute that he had no knowledge of these materials
at the time of the shooting. (See Harvel Resp., Dkt.
72, at 5). As stated above, the law is clear that facts an
officer learns after an incident ends are not relevant to
qualified immunity. See, e.g., Cole, 935 F.3d at 456
(excluding suicidal threat that officers were not aware of at
the time they fired their weapons). The Court therefore
strikes Exhibit X (Dkt. No. 57-24) and Exhibit Y (Dkt. No.
57-25) from Harvel's motion for summary judgment.
The City's Motion to Exclude the Testimony of Jeffrey J.
Noble (Dkt. No. 75) and Harvel's Motion to Exclude the
Testimony of Jeffrey J. Noble at Trial (Dkt. No. 76)
response to both motions for summary judgment, Plaintiffs
offer a declaration and expert report by Jeffrey J. Noble.
(Noble Decl. & Report, Dkt. No. 65-17; Noble Decl. &
Report, Dkt. No. 92-13). Noble is a former Deputy Chief of
Police for the City of Irvine, California, with 28 years of
experience in law enforcement, including extensive experience
conducting internal administrative investigations regarding
the use of force and officer misconduct. (Id. at 5).
admissibility of expert testimony is governed by the same
rules, whether at trial or on summary judgment.”
Streber v. Hunter, 221 F.3d 701, 724 n.32 (5th Cir.
2000) (quoting First Financial v. U.S.F. &
G. Co., 96 F.3d 135, 136 (5th Cir. 1996)). Rule 702 of
the Federal Rules of Evidence provides that:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
courts must act as “gatekeepers” to ensure that
expert testimony is both reliable and relevant. Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).
“To qualify as an expert, the witness must have such
knowledge or experience in his field or calling as to make it
appear that his opinion or inference will probably aid the
trier in his search for truth.” United States v.
Hicks, 389 F.3d 514, 524 (5th Cir. 2004) (citation and
internal quotation marks omitted). The party seeking to admit
expert testimony must demonstrate by a preponderance of the
evidence that the expert is qualified and that the testimony
is relevant and reliable. Moore v. Ashland Chem.
Inc., 151 F.3d 269, 276 (5th Cir. 1998).
testimony “may only assist and not replace the fact
finder.” First United Fin. Corp. v. U.S. Fid. &
Guar. Co., 96 F.3d 135, 136 (5th Cir. 1996).
“[T]he trial judge ought to insist that a proffered
expert bring to the jury more than the lawyers can offer in
argument.” Salas v. Carpenter, 980 F.2d 299,
305 (5th Cir. 1992) (quoting In re Air Crash Disaster at
New Orleans, 795 F.2d 1230, 1233 (5th Cir. 1986)).
Rule 704, an opinion is not automatically objectionable
because it addresses an ultimate issue. Fed.R.Evid. 704(a).
However, Rule 704(a) “does not allow a witness to give
legal conclusions.” United States v. Williams,
343 F.3d 423, 435 (5th Cir. 2003) (quoting United States
v. Izydore, 167 F.3d 213, 218 (5th Cir. 1999)).
Reasonableness under the Fourth Amendment or Due Process
Clause is a legal conclusion. Williams, 343 F.3d at
Noble's Testimony Regarding The City's Police Officer
Training (Dkt. No. 75)
City moves to exclude Noble's testimony regarding the
City because Noble's testimony is not based on any review
of the City's policies or practices, contains no specific
analysis of any APD policy, practice, materials, or records,
and offers a legal conclusion that will not assist the jury.
(City Mot. Exclude, Dkt. No. 75). Plaintiffs do not dispute
that Noble's testimony is not based on review of APD
policies or records. (See Pls.' Resp., Dkt. No.
79, at 8). Instead, Noble's report is based on his review
of depositions, diagrams, photographic evidence, mobile
videos from APD patrol cars, and interviews related to this
case. (Noble Decl. & Report, Dkt. No. 65-17 ¶ 8
(“I reviewed the following material in making my
opinions . . . .”); see also Noble Tr. at
245:13-23, Dkt. No. 75-1). The only specific statement that
Noble offers regarding the City is at Paragraph 38(f) of the
Expert Report: “To the extent that these officers'
training is consistent with such a fundamental
misunderstanding of the law and generally accepted police
practices regarding the use of deadly force, it would support
a conclusion that the training provided by the Austin Police
Department to its officer [sic] is dangerous and
unreasonable.” (Noble Decl. & Report, Dkt. No.
65-17, at 40, ¶ 38(f)).
general rule, questions relating to the bases and sources of
an expert's opinion affect the weight to be assigned that
opinion rather than its admissibility and should be left for
the jury's consideration. Dixon v. Int'l
Harvester Co., 754 F.2d 573, 580 (5th Cir. 1985).
“In some cases, however, the source upon which an
expert's opinion relies is of such little weight that the
jury should not be permitted to receive that opinion. Expert
opinion testimony falls into this category when that
testimony would not actually assist the jury in arriving at
an intelligent and sound verdict.” Id.
Noble's opinion about the City does not appear to be
based on any facts or data about APD's training other
than testimony from three APD officers (Harvel, Rounds, and
Connelly) about the training they received. (See
Noble Decl. & Report, Dkt. No. 65-17, at 15 ¶
22(d)(15), 23 ¶ 25(b)(12), 39 ¶ 38(b)). That may
affect the weight that the factfinder accords to Noble's
opinion. See Dixon, 754 F.2d at 580. But Noble's
opinion has at least some factual basis because he reviewed
testimony from these officers about their training.
See Fed. R. Evid. 702(b); Noble Decl. & Report,
Dkt. No. 65-17 ¶ 8. Accordingly, the undersigned cannot