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Bryant v. Gillem

United States District Court, N.D. Texas, Amarillo Division

October 31, 2019

ALICIA BRYANT, in Her Capacity as the Personal Representative of the Estate of Jonathan Bryant, Plaintiff,
v.
DANNY GILLEM, Defendant.

          OPINION AND ORDER

          LEE ANN RENO UNITED STATES MAGISTRATE JUDGE

         Today the Court must decide if Plaintiff Alicia Bryant (“Plaintiff”)[1] has met her burden to create a genuine issue of material fact that Defendant police officer Danny Gillem's (“Gillem”) actions were both intentionally applied and objectively unreasonable under clearly established law during Gillem's seizure of Plaintiff's deceased husband, Jonathan Bryant (“Bryant”). Gillem - following a high-speed car chase in pursuit of Bryant - drew his firearm, pointed it at Bryant, failed to holster the weapon while attempting to handcuff Bryant, and subsequently discharged the firearm, striking Bryant in the shoulder with the bullet. After exiting the vehicle, Bryant fully complied with all officer orders and did not resist arrest. These facts are undisputed.

         Plaintiff's burden arises because of Gillem's assertion of qualified immunity in relation to that incident. Gillem filed a Motion for Summary Judgment, with a brief in support and appendix of evidence. [ECF Nos. 49, 50, 51, respectively]. Plaintiff filed a Response to the Motion, along with an objection[2] and appendix of evidence, [ECF Nos. 57, 58, respectively], to which Gillem filed a Reply, [ECF No. 59]. This Court has reviewed all the summary judgment evidence identified in this paragraph and all the arguments of the parties set forth in these documents. For the reasons explained below, the Court OVERRULES Plaintiff's Objection to parts of Gillem's summary judgment evidence, GRANTS the Motion for Summary Judgment, and DISMISSES this action with prejudice.[3]

         I. FACTUAL EVIDENCE BEFORE THE COURT

         On August 24, 2016, 100th District Attorney Investigator Mike Chapman (“Officer Chapman”) was working stationary radar on U.S. Highway 287 (“Highway 287”) in the City of Childress, Texas. [ECF No. 51 at 42][4]. At approximately 2:27 p.m. on that day, Officer Chapman clocked a grey Ford Explorer traveling east on Highway 287[5] at 45-m.p.h. in a 35-m.p.h. zone. Id. at 42, 64. Officer Chapman activated the emergency lighting of his patrol vehicle and attempted to pull the Ford Explorer over. Id. at 42. Bryant - the driver of the Ford Explorer - initially signaled his intent to pull over, but then quickly accelerated. Id. Officer Chapman activated his emergency siren, initiated a pursuit, notified the Childress County Sheriff's Office of the pursuit, and requested backup. Id. at 64. Gillem - Chief Deputy of the Childress County Sheriff's Office - responded to the request for backup and joined Officer Chapman's pursuit of Bryant. Id. at 15, 40.

         What follows is a general description of the pursuit recorded by Officer Chapman's dash camera. See generally Id. at 64.[6] The recording begins with Officer Chapman initiating a traffic stop. After Bryant initially signaled to pull over and stop, Bryant accelerated away from Officer Chapman at a high rate of speed. Officer Chapman immediately advised dispatch that he was in pursuit of a grey Ford Explorer, that he had attempted to pull the suspect vehicle over, and that the suspect vehicle was travelling in excess of 115-m.p.h. As the pursuit began, Bryant swerved in and out of traffic, passing two semi-trucks on the right using the improved shoulder of the road at a high rate of speed. At the four-minute and thirty-second mark, Bryant nearly ran another vehicle off of the road. Officer Chapman advised dispatch that he had observed the suspect vehicle intentionally attempt to run another motorist off the road. Childress County Sheriff Michael Pigg (“Sheriff Pigg”) stated on the radio that the suspect vehicle was a danger to the public. Officer Chapman responded, “I can't get close enough to him Sheriff. I'm trying.”

         Five minutes into the recording, Gillem can be seen on the far-left side of Highway 287 with patrol vehicle lights flashing, joining the pursuit. Directly after Gillem joined the pursuit, Bryant almost ran another motorist off of the road. A mere twenty-five seconds later, he closely tailed the bumper of another motorist, forcing that vehicle to switch lanes. At the seven-minute and eight-second mark, Officer Chapman advised dispatch that the driver of the suspect vehicle appeared to be a black male. Bryant straddled multiple lanes during the continued pursuit, weaving back and forth to prevent Officer Chapman from passing or coming alongside him. At the eight-minute and forty-second mark, Bryant ran multiple motorists off of the road. Near the nine-minute and fifty-second mark, he almost ran into a semi-truck.

         At the eleven-minute and ten-second mark, as the pursuit neared Goodlett, Texas, Gillem asked Officer Chapman over the radio whether he was able to take a shot. Approximately eleven minutes and fifteen seconds into the pursuit, Officer Chapman fired multiple shots at the suspect vehicle for the first time. Gillem immediately advised dispatch that “[s]hots are being fired!” Officer Chapman fired upon the suspect vehicle for a second time at the eleven-minute and forty-five-second mark, and for a third time at the twelve-minute and fifteen-second mark. Fifteen seconds after the third shooting, Bryant swerved out from behind another motorist onto the middle grass median of Highway 287 in order to avoid a spike strip.

         At the thirteen-minute and forty-five-second mark, as the pursuit approached Quanah, Texas, Officer Chapman fired upon the suspect vehicle for a fourth and final time. Bryant immediately slammed on his breaks and began to pull over to the right side of Highway 287. Officer Chapman then drove his patrol vehicle into the rear of the suspect vehicle, forcing it off of the road where it came to a complete stop near a tree line in up-to-knee-length grass. Police sirens blared loudly in the background.

         At the fourteen-minute mark, two men emerged from the driver and front passenger doors of the suspect vehicle with their hands raised. Both men went to the ground within seconds, laying down with arms and legs outstretched, while law enforcement simultaneously ordered them to the ground. At the fourteen-minute and seven-second mark, Officer Chapman appeared on screen with a pistol in both hands and walked to secure the individual on the passenger side of the suspect vehicle.[7] Another police officer also had his weapon drawn and stood between Bryant and the passenger. The events that followed are at the heart of the Plaintiff's claims.

         Fourteen minutes and twelve seconds into the pursuit, Gillem appeared on screen with a pistol in his right hand and ran to secure Bryant on the driver's side of the suspect vehicle.[8] As he neared the suspect vehicle, Gillem held his pistol with both hands and pointed it at Bryant. Bryant immediately placed both of his arms straight behind his back. Gillem then transferred the pistol to his left hand, knelt next to Bryant, and kneed Bryant in the back with his right knee. After his right knee came down, Gillem reached in with his right hand for Bryant's hands; a single shot was simultaneously fired from the pistol in Gillem's left hand into Bryant's left shoulder. In total, five seconds elapsed from the time that Gillem drew his gun until the point at which he fired the single shot into Bryant.

         After the gun discharged, Gillem immediately pointed the pistol away from Bryant. He subsequently holstered his pistol on the right side of his hip and requested assistance. Another officer came to assist Gillem and handcuffed Bryant, and Gillem requested medical assistance and the Texas Rangers.[9] At the fourteen-minute and fifty-eight-second mark, an officer asked, “Where'd the gunshot come from?” Gillem responded, “Me, I shot him.” Thereafter he helped Bryant sit up. Bryant received medical care on site and was helped to his feet. At the twenty-three minute and thirteen-second mark, Bryant disappeared from camera view and the video recording ended shortly thereafter.[10]

         That same day, the Texas Rangers, at the request of Sheriff Pigg, initiated an investigation regarding the shooting of Bryant. Id. at 38. As part of their investigation, the Texas Rangers created an investigative report documenting their interviews with numerous witnesses, including but not limited to Officer Chapman and Gillem, and their collection and review of other evidence regarding the shooting. See Id. at 38-62. During his interview, Officer Chapman stated in part:

I then utilized my marked patrol unit to conduct a pursuit intervention technique to disable the vehicle and take the subject driving into custody. The vehicle came to a rest on the south side of [Highway] 287 in the grass bar ditch. At this point, two (2) suspects exited the vehicle and complied with commands to get on the ground. I approached the passenger male who was lying on the ground (face down) holstered my firearm and placed handcuffs on the subject without further incident. As I was placing handcuffs on the subject I heard a gunshot from what appeared to be the driver's side of the suspect vehicle. I walked over to check and see where the gunshot came from and observed blood on the driver's left shoulder. Chief Deputy Gillem stated to me that he accidentally shot the driver while he was attempting to arrest him.

Id. at 43. During his interview, Gillem stated in part:

The violator's vehicle slowed down and pulled to the right hand side of the roadway. At that time, Officer Chapman hit the rear portion of the violator's vehicle and pushed the vehicle to the right of the roadway in the barrow ditch. I slowed down quickly and positioned my vehicle in the barrow ditch just east of the violator's vehicle. I exited my vehicle and drew my firearm (Glock Model 17 9mm [c]aliber pistol) which was secured by a right handed holster on my duty belt and approached [the] violator's vehicle. Officer Chapman was located at the rear of the violator's vehicle with his firearm drawn in the direction of the driver, and I observed a black male lying in a prone position on the ground. I attempted [to] gain control of his right arm and grabbed his right arm with my right hand. When I grabbed his arm and moved it behind his back I discharged my firearm which was in my left hand and struck the violator in the left shoulder area. I secured my firearm in my holster. The violator was handcuffed by [another officer] and positioned upright but seated and emergency personnel was contacted to render care to the subject.

Id. at 40-41. The investigation was closed after a grand jury returned a no bill. Id. at 38-39.[11]

         On February 11, 2019, Texas Ranger Ricky Brown (“Ranger Brown”) - the lead investigator of the shooting - was deposed in connection to this case. See [ECF No. 51 at 18-37]; see also [ECF No. 58 at 55-83][12]. On direct examination, Ranger Brown testified that he believed the shooting resulted from a “sympathetic or a reflexive squeeze” by Gillem's left hand as he reached towards Bryant with his right hand. [ECF No. 58 at 27]. Ranger Brown described a “sympathetic reflex” as “your muscles reflexing in conjunction with one another.” Id. at 29. Ranger Brown further testified that he believed the shooting was an unintentional accident, and that the highly stressful pursuit impacted the accidental discharge. Id. at 29-31. On cross-examination, Ranger Brown acknowledged, among other things, that officers are trained to holster their weapons prior to attempting to secure suspects, that officers are trained to index their trigger fingers, [13] that Gillem did not follow his training as to holstering and indexing when he attempted to secure Bryant, and that Ranger Brown did not ask Gillem why he failed to do so. Id. at 68, 77-78.

         Gillem was also deposed. See Id. at 1-54. During the course of his deposition, Gillem testified that upon his initial approach of the suspect vehicle he could not clearly see Bryant's hands because he was laying in tall grass, that he thought he had holstered his gun prior to attempting to secure Bryant, that he did not intend to pull the trigger of his firearm, and that he accidentally shot Bryant. Id. at 26-29, 33, 38, 45-47. Gillem also stated he never intended to put his finger on the trigger of his firearm because he was unaware it was not holstered when the gun transferred to his left hand. Id. at 32. However, he acknowledged, among other things, that he did not see any weapons in Bryant's hands when he “got up on him” and “got close enough” to him, that Bryant fully complied with his commands and did not resist arrest, that he had received training about holstering his weapon, that he had received training about trigger and muzzle discipline, [14] and that he had made a mistake. Id. at 9, 26-30, 38, 49, 51.

         Gillem subsequently filed a declaration in conjunction with his motion for summary judgment in which he provided a general description of the pursuit and shooting of Bryant. See [ECF No. 51 at 15-17]. According to the declaration, on August 24, 2016, Gillem “heard radio traffic regarding a pursuit occurring on Highway 287.” Id. at 15. Gillem “followed the radio traffic and was en route for assistance near [Highway] 287, when [he] observed Officer Chapman traveling east with his lights activated.” Id. Gillem quickly “followed and positioned [his] vehicle behind that of Officer Chapman.” Id. Gillem observed the suspect vehicle drive at “extremely high rates of speed, far in excess of 100 mph through traffic in the middle of the afternoon” and “weave[] in and out of traffic at high rates of speed, causing other vehicles to run off the road.” Id. Just before entering the city limits of Quanah, Texas, Gillem observed “Officer Chapman hit [the suspect vehicle] with his, causing it to push further from the roadway into the barrow ditch.” Id.

         At that time, Gillem “slowed down and positioned [his] vehicle on the driver's side of [the suspect] vehicle.” Id. He then “drew [his] weapon.” Id. Upon exiting his own vehicle, Gillem observed Bryant “exit the [suspect] vehicle with his hands in the air” and “la[y] down in the grass.” Id. The declaration indicates that the grass was “high and prohibited [Gillem] from clearly seeing [Bryant's] hands as [he] approached” the suspect vehicle. It also indicates that Gillem “kept [his] weapon drawn because [he] could not see [Bryant] clearly due to the grass.” Id.

         Upon reaching Bryant, Gillem “knelt down to secure [him].” Id. In quick succession Gillem “moved [his] weapon from [his] right hand to [his] left hand” and “kneeled down to grab [Bryant's] right arm with [his] right hand.” Id. at 15-16. “As [Gillem] kneeled down and began to reach for [Bryant's] arm, [his] weapon discharged, shooting Bryant in the shoulder.” Id. at 16. Gillem declared that “[t]he discharge was purely an accident, ” that “[he] did not intend to discharge [his] weapon at any time, ” and that “[he] did not even realize [he] was holding the gun in [his] left hand as [he] kneeled down and accidentally discharged the gun.” Id. Following the shooting, Gillem “remained with Bryant and eventually help[ed] sit him up as [they] waited for paramedics to arrive.” Id. Gillem declared under penalty of perjury that the facts stated in his declaration were “true and correct.” Id. at 17.

         Additionally, Gillem filed a declaration in which Margo Frasier, the former Sheriff of Travis County, Texas, provided an opinion regarding the actions taken by Gillem at the scene of the shooting. See Id. at 1-14. She indicated that Gillem's actions were objectively reasonable under the circumstances and clearly established law. Id.

         II. PLAINTIFF'S CLAIM FOR RELIEF AGAINST GILLEM

         Plaintiff makes one claim in her Second Amended Complaint against Gillem under 42 U.S.C. § 1983: the use of excessive force during a seizure. See [ECF No. 47 at ¶¶ 24-34]. That claim arises under the Fourth Amendment.

         III. STAN ...


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