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Roque v. Harvel

United States District Court, W.D. Texas, Austin Division

October 16, 2019

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.



         Before 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 (“Local Rules”).

         I. BACKGROUND

         Plaintiffs 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).

         Roque's 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).[1] 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 order.

         II. ANALYSIS

         First, 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.

         A. Plaintiffs' Motion to Strike Harvel's Exhibits (Dkt. No. 66)

         Harvel 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:


Dkt. No.




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

F, S

57-6, 57-19

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

         (See 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 value. (Id.).

         1. Legal Standard

         “A 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 (2001)).

         Evidence 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.”).

         2. Discussion

         Harvel 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 summary judgment.

         Regarding 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).

         The 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.

         B. 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)

         In 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).[2] 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).

         1. Legal Standard

         “The 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 methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         District 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).

         Expert 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)).

         Under 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 435.

         2. Noble's Testimony Regarding The City's Police Officer Training (Dkt. No. 75)

         The 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)).

         As a 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.

         Here, 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 ΒΆ 8. Accordingly, the undersigned cannot ...

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