Aleman v. City of Charlotte

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:19-cv-00491-RJC-DCK

AZUCENA ZAMORANO ALEMAN, )

individually and as Administrator of the )

Estate of RUBIN GALINDO CHAVEZ )

)

Plaintiff, )

)

vs. )

) ORDER

)

CITY OF CHARLOTTE and DAVID )

GUERRA, individually and officially, )

)

Defendants. )

____________________________________ )

THIS MATTER comes before the Court on Defendants David Guerra’s and City of

Charlotte’s Motions for Summary Judgment, Plaintiff’s Responses, and Defendants’ Replies (Doc.

Nos. 27, 29, 37, 38, 40 and 41 respectively), and Plaintiff Azucena Zamorano Aleman’s Motion

for Partial Summary Judgment, Defendants’ Joint Response, and Plaintiff’s Reply (Doc. Nos. 30-

33, 35 and 39).

These matters have been fully briefed and orally argued. The Court has reviewed the

pleadings, exhibits thereto, and applicable law. The parties have been fully heard. For the reasons

stated herein, Defendants’ Motions for Summary Judgment are GRANTED, and Plaintiff’s

Motion for Partial Summary Judgment is DENIED.

I. BACKGROUND

After dark, sometime shortly after 9:00 p.m., on September 6, 2017, Ruben Galindo made

the first of two 911 calls from his cell phone. He was then located in the Hunter Pointe Apartment

Complex at 1918 E. Prospect Avenue, Unit E. Sadly, these calls would lead to a series of events

culminating in his death approximately one-half hour later.

An event chronology (31-21), “Armed Person Call for Service” document (31-4), and

English transcripts of the two calls (31-5,6) were submitted by the Plaintiff. In the first call,

Galindo asked the police to come help him and, after apparently speaking with someone in the

background, provided his address. He did not know his phone number. Galindo said he had a gun

in his hand. When asked what he was going to do with the gun, he responded “are you going to

help me or are you not going to help me?” When asked if he was homicidal or suicidal, he

answered “can you or can’t you [help me]?” In response to a question as to whether he planned to

kill himself or someone else, he answered “I want to turn myself in.” He identified himself as “10

star” and “see el dios Estrella” (the star god). He indicated “they” were looking for him. He

admitted he had been drinking beer but denied using drugs that day.

Galindo repeated that he needed the police to come for him. He then stated that he would

be outside the apartment, and that he was a thirty-year-old Hispanic wearing a white shirt and blue

pants. He denied wanting to harm the officers and said he just wanted them to come for him, that

he wanted to turn himself in, and that he could not take it anymore.

The call was abruptly ended. The dispatcher unsuccessfully tried to reconnect several

times. When Galindo called a second time, he identified himself as “Ruben” and indicated he had

a gun in a bag. The dispatcher told him in Spanish to leave the gun in the apartment. (Complaint,

1-2, ¶ 23). The dispatcher also told him that when the officers arrive, he should “show your hands,

I don’t want you to have the firearm.” Galindo responded “ok.”

The dispatcher then asked if he had put the gun in a safe place and he said “No, I have it

with me.” The dispatcher said “No, please, no, no please . . . .” Over apparent giggling, Galindo

1 31-2 refers to the source at Docket #/Exhibit #. This convention is used throughout this Order, sometimes

followed by page number.

indicated it did not have bullets. The dispatcher said again: “But please leave it, continuing “for

your safety and of everyone’s.” A fifth time the dispatcher referenced leaving the gun: “I need

you to assure me that you will leave the gun please.” In response, Galindo told the dispatcher that

as long as the police did not shoot him, he would throw them the gun. He repeated several times

that he did not have bullets. Again, and for the sixth time, the dispatcher instructed him to put the

gun somewhere, “please.” Galindo said that the dispatcher was not helping him. He responded

that he had the gun. The last word he spoke to the dispatcher was “can you help me or not?”

The dispatcher relayed to responding officers that the caller was armed with a gun and

wanted officers to help him. She indicated that he refused to give further information and that it

was unknown what he wanted to do with the gun or whether he was homicidal or suicidal. But

she noted that he wanted to turn himself in for an unknown reason or warrant. As officers were

dispatched, they learned that only one previous call for service had occurred at that address

(larceny from auto) and there was no call history from the phone he was using. They were

informed that Galindo referred to himself as “see el dios Estrella” and that he had been drinking;

that a female had been heard in the background, but that it was unknown how many people were

in the apartment; and that they should “use caution” because Galindo “sounds delusional.” They

were also told the complainant’s name, date of birth and clothing description, and that dispatch

had called back complainant repeatedly and got only voicemail. Officers were advised that in a

follow-up conversation, Galindo told the dispatcher that the gun had no bullets. The call was

registered in terms of priority as a two on a one to nine scale, with one being the most serious. The

call had their full attention because of the weapon and the refusal to leave the weapon somewhere

safe or inside the home. (32-1, p 84).

In preparation for responding to the scene, officers met in a school parking lot behind the

North Tryon Division station and discussed safety issues including concerns over a possible

ambush. Officer Batson researched Galindo’s name and discovered that Galindo had been arrested

recently for assault for pointing a gun. Batson remembered responding to that call for service as

a backup officer.

Meanwhile, a dispatcher requested a Spanish interpreter but no one from the division

“rogered up.” (Guerra Dep., 32-1, p. 68). It was believed that an “outside division” interpreter

was on his way but might take anywhere from 5 to 30 minutes. The officers also received

information that the dispatcher had heard a female in the background of the 911 call and that an

unknown number of people were in the apartment, suggesting a possible volatile domestic

situation. When combined with known facts—that Galindo was armed, had been drinking,

expressed delusional thoughts, was of unknown mental state, and was described as

“uncooperative” with the dispatcher—officers assessed they could no longer wait. (32-1, p. 76-

78).

An approach plan was formulated. Officers Tran-Thompson and Guerra would make

initial contact with Galindo from a distance. They both carried CMPD-issued patrol rifles, which

they were certified to use. Officers Batson and Suggs were designated to make “hands on” contact

with Galindo once it became safe to do so. The officers positioned themselves near the corners of

building 1920 so they could view apartment 1918-E from different angles behind cover. Officers

Guerra and Tran-Thompson took up staggered positions on the left side of the building in front of

Galindo’s apartment. Officers Suggs and Batson took up positions on the right side of the

apartment building in front of Galindo’s. (See Aerial photo, 28-11). As they were approaching,

they checked the bushes and corners to fend off any potential ambush.

This Court accepts Plaintiff’s request pursuant to Scott v. Harris to consult the body worn

camera (“BWC”) video footage (31-1) to determine what happened next. 550 U.S. 372, 378–81

(2007). Although the parties’ descriptions of what is contained in the video imparts their respective

gloss, the Court finds that the composite video reflects what Officer Guerra had the opportunity to

perceive on the night he shot Galindo.2

In the BWC footage, the officers announce they are police. Guerra can be heard yelling

out “manos, manos” (hands, hands) as Galindo came out the door with his right arm initially hidden

from view behind the door frame and his left hand empty. Galindo then reached his left hand down

to his left pocket and pulled out a gun (the firearm is depicted in 28-14). As officers yelled “put it

down” and “drop the gun, drop the gun,” Galindo raised the gun half-way up to shoulder height

and lowered it again. As officers continued to yell “put it down” and “drop the gun,” Galindo

raised his left arm then his right arm above shoulder height. At this point it can be seen from the

Batson/Suggs angle that Galindo is holding the firearm upside down, but from the Trans-

Thompson BWC footage, the same cannot be said. Galindo’s left hand began to drop just before

shots were fired. (31-1: between seconds 23 and 24 and seconds 38 and 39). Once hit, both of his

arms came fully down as he fell to the ground. The time between the first scream of “manos” to

the firing of the first shot was approximately six seconds.

II. LEGAL FRAMEWORK

Summary judgment shall be granted “if the movant shows that there is no genuine dispute

2 Although the Court relies on the video footage (31-1), conducting its examination of evidence in a light most

favorable to Plaintiff, it does so with three caveats. First, unless expressly indicated, the Court does not embrace the

Plaintiff’s sometimes hyperbolic characterizations of what is contained in the video footage. For example,

repeatedly, Plaintiff characterizes the video footage as “blatantly contradicting” Guerra’s deposition and interview

statements. Second, the Court notes that the combined footage would include angles of observation unavailable to

Officer Guerra. For example, the video footage from the Batson/Suggs BWCs is from a different angle on the

opposite side of building 1920 (see aerial photo, 28-11)). It would not reflect what Guerra could have seen from his

position on the opposite side. Guerra’s BWC footage was substantially obscured by the building that provided him

cover, but the footage from Trans-Thompson’s BWC would most accurately capture the scene as Guerra would have

experienced it. Third, Guerra’s view was split-second and of course not subject to slow-motion or replay.

as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV.

P. 56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A fact is material only if it might affect the outcome of the suit under governing law. Id.

The movant has the “initial responsibility of informing the district court of the basis for its

motion, and identifying those portions of the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986) (internal citations omitted).

Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving

party “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 322 n.3.

The nonmoving party may not rely upon mere allegations or denials of allegations in his pleadings

to defeat a motion for summary judgment. Id. at 324. The nonmoving party must present

sufficient evidence from which “a reasonable jury could return a verdict for the nonmoving

party.” Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert Cty., 48 F.3d 810, 818

(4th Cir. 1995).

When ruling on a summary judgment motion, a court must view the evidence and any

inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477

U.S. at 255. “Where the record taken as a whole could not lead a rational trier of fact to find for

the nonmoving party, there is no genuine issue for trial.” Ricci v. DeStefano, 557 U.S. 557, 586

(2009). In ruling on summary judgment, courts are allowed to consider video evidence capturing

the actions of officers in qualified immunity cases. See, e.g., Scott v. Harris, 550 U.S. 372, 376

(2007).

The doctrine of qualified immunity “balances two important interests,” namely, the need

to hold accountable public officials who exercise power irresponsibly, and the need to shield

officials who perform duties responsibly from “harassment, distraction, and liability.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). The burden of establishing the affirmative defense of

qualified immunity rests on the party seeking to invoke it.

Ever since Graham v. Connor was decided in 1989,3 claims that law enforcement officers

used excessive force are “analyzed under the Fourth Amendment and its ‘reasonableness’

standard.” 490 U.S. 386, 395 (1989). The standard of review is an objective one, the intent or

motivation of the officer is irrelevant; the question is whether a reasonable officer in the same

circumstances would have concluded that a threat existed justifying the particular use of force. Id.

at 396–97. A police officer may use deadly force when the officer has sound reason to believe

that a suspect poses a threat of serious physical harm to the officer or others. Tennessee v. Garner,

471 U.S. 1, 3 (1985).

A court may not employ “the 20/20 vision of hindsight” and must make “allowance for the

fact that police officers are often forced to make split-second judgments—in circumstances that

are tense, uncertain, and rapidly evolving.” Graham, 490 U.S. at 396–97. The Constitution is not

blind to “the fact that police officers are often forced to make split-second judgments.” Plumhoff

v. Rickard, 572 U.S. 765, 775 (2014). The court’s focus should be on the circumstances at the

moment force was used and on the fact that officers on the beat are not often afforded the luxury

of armchair reflection. Greenidge v. Ruffin, 927 F.2d 789, 791–92 (4th Cir. 1991).

III. ANALYSIS

“No citizen can fairly expect to draw a gun on police without risking tragic consequences.

3 The facts of Graham v. Connor occurred not ten miles from the facts involved in this case.

And no court can expect any human being to remain passive in the face of an active threat on his

or her life.” Elliott v. Leavitt, 99 F.3d 640, 644 (4th Cir. 1996). These fundamental propositions

undergird the common sense result reached in this tragic case—Defendants bear no civil liability

for shooting Rubin Galindo in these circumstances.

A. 42 U.S.C. § 1983 Claim

Plaintiff has alleged that Defendant Guerra used unreasonable and excessive force in

violation of Rubin Galindo’s Fourth Amendment rights. Defendants deny the allegation and, in

addition, defend on the basis of qualified immunity. “Qualified immunity shields federal and state

officials from money damages unless the facts show (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged

conduct.” Mays v. Sprinkle, 992 F.3d 295 (4th Cir. 2021) (quoting Ashcroft v. al-Kidd, 563 U.S.

731, 735 (2011)). The court may address these questions in either order. Estate of Armstrong ex

rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 898 (4th Cir. 2016) (citing Pearson v. Callahan,

555 U.S. 223, 232 (2009)).

Whether excessive force was used is an objective inquiry assessing what a “reasonable

officer on the scene” would have done, taking into account the Graham factors. Those factors

include the severity of the crime at issue, whether the suspect posed an immediate threat to the

safety of the officers or others, and whether the suspect actively resisted arrest or attempted to

evade arrest by flight.4 Graham, 490 U.S. at 396–97. This evaluation is guided by the pragmatic

considerations of the moment and not subject to armchair analysis. Id.

4 Based on the facts of this case, the third Graham factor holds little weight as the officers had no opportunity to

arrest Galindo, nor did Galindo attempt to flee before he was shot. Thus, the Court will not specifically address this

factor any further.

i. Severity of the Crime

The events of the night in question were triggered by 911 calls placed by Galindo himself.

He wanted to turn himself in for unknown reasons, and indicated he possessed a gun that he would

give to police officers. He also indicated in the phone call that he had been drinking5 and expressed

delusional thoughts that he was the sun god and that “they” were following him. In researching

Galindo, officers became aware of a prior arrest for assault by pointing a gun. Although officers

were not responding to a specific crime, the situation made them wary about whether Galindo was

suicidal or homicidal, and whether they were being lured into a trap or ambush.

There is no dispute that Galindo was repeatedly instructed in Spanish to leave the gun

inside, in a safe place, but not to take the gun out to meet the officers. He ignored those instructions

just as he ignored the instructions from the officer saying “manos” and “put the gun down.”

Although Plaintiff argues that he was compliant with the officer’s instructions, even taking the

evidence in a most favorable light, it is hardly compliant to reach into a pocket and retrieve a gun—

after repeatedly being told to leave the gun inside—while the police are asking to show your hands.

It is provocative and makes an already “tense, uncertain and rapidly evolving” situation worse.

ii. Whether the Suspect Posed an Immediate Threat to the Safety of the

Officers or Others

This factor is obviously the critical factor. For, if at the moment Galindo was shot, he

posed an immediate threat to officers and others, then Officer Guerra’s actions were objectively

reasonable. Conversely, if Galindo did not pose an immediate threat, Plaintiff would be entitled

to partial summary judgment or at the least a right to a jury trial.

A close look at the facts relevant to this factor involves some repetition. At the moment

Officer Guerra pulled the trigger expelling the fatal bullet toward Galindo, the responding officers

5 The postmortem toxicology report registered .23 BAC. 28-17.

were aware of the following facts. They knew that Galindo had placed two 911 calls

communicating that he wanted to turn himself in for some unknown (to them) reason. He also

said he had a gun, that he said was not loaded, and that he wanted the police to help him. He had

been drinking and expressed delusional thoughts that caused the dispatcher to recommend

“caution.” The officers also knew that there was at least one other person in the house with

Galindo, a female, and they were concerned about the possibility they were responding to a

potentially volatile domestic situation. And as stated before, they worried about Galindo’s mental

state and whether he was homicidal or suicidal. As they approached, they were aware that they

were responding to a gun related call to an apartment in the middle of a complex that housed

somewhere between 200 to 400 residents. It was a weeknight, it was dark, and at a time (just after

9:00 p.m.) when people might be around. In fact, they passed a woman walking a dog on their

way. Bushes were scoured because of a concern they might be walking into an ambush.

These undisputed facts would raise serious and legitimate safety concerns to any

reasonable officer in Guerra’s shoes. But they were not the most serious of the concerns that night.

Galindo had been instructed six times in Spanish to leave his gun inside. When he came out, the

first command was “manos,” Spanish for “hands.” Instead of displaying his hands, he reached

into a pocket for a gun. Then he raised his hands, lowered them, and raised them again—all while

holding the gun.

The video footage depicts the scene on the back porch in the six seconds between the first

“manos” command and the fatal first shot. It represents combined footage, some footage from

Officer Guerra’s vantage point and some from where Officers Batson and Suggs stood on the other

side of a house. (See Aerial photo, 28-11). The latter is a view that cannot be the view of a

reasonable officer in Guerra’s position. Nor could such a person have the benefit of slow-motion

or replay.

The split-second decision-making confronting Guerra and thus any reasonable officer in

his position, takes into account all that can be seen and heard on the video footage, and all that led

up to that moment. It leads this Court to the conclusion that a reasonable officer in Guerra’s

position would have been justified in perceiving an imminent threat. This is so even though the

facts are taken in a light most favorable to the Plaintiff: that is, Galindo was subjectively intending

to surrender himself and his unloaded firearm to police officers and hoping they would not shoot

him.

Galindo’s hopes and subjective decision-making do not control the result here because they

could not be known to law enforcement. Or if known, could not be relied upon with any certainty.

Nor does Guerra’s account control the outcome for it is an objective test: neither what was in the

mind of Galindo or Guerra is determinative, except insofar as the effect either would have on a

reasonable officer. The reasonableness test is objective, and this horrendous set of facts justifies

the use of deadly force in the face of an imminent threat. The line is folksy but true: an action is

quicker than a reaction. A reasonable officer in Guerra’s position did not have to wait; did not

have to trust a man believed to be delusional, and possibly homicidal or suicidal; a man who had

refused every law enforcement directive aimed at keeping him and others safe. “[The Fourth

Circuit] has consistently held that an officer does not have to wait until a gun is pointed at the

officer before the officer is entitled to take action.” Anderson v. Russell, 247 F. 3d 125 (4th Cir

2001).

These facts are not in dispute. Taking evidence in a light most favorable to a non-moving

party does not mean the court is justified in ignoring unfavorable facts. Galindo’s series of poor

decisions—drinking to excess while possessing and carrying a .380 semi-automatic handgun,

executing a bad plan of surrender, and exhibiting a complete inability or unwillingness to heed

safety suggestions or law enforcement commands—all combined to create “the tense, uncertain

and rapidly evolving” circumstances which required split second officer decision-making of a kind

that case law on qualified immunity instructs district courts not to second guess. Courts are also

instructed to focus “on the circumstances at the moment force was used and on the fact that officers

on the beat are not afforded the luxury of armchair reflection.” Elliott v. Leavitt, 99 F.3d 640, 642

(4th Cir. 1996).

It is quite telling that in neither the complaint,6 nor in the Plaintiff’s expert report does she

deal with the single most compelling fact: Galindo’s reaching into his pocket and pulling out a gun

in response to officer’s repeated commands of “manos.” In fact, while complaining that the

Defendants’ “shared recitation” failed to address “the core uncontested and unsettling fact of this

case—[that Galindo] had his hands and arms raised in surrender,” and that “Galindo had complied

as ordered, four times in Spanish to raise his hands (“manos!”)”— it is remarkable that the Plaintiff

failed to address the core uncontested and most probative fact of this case—that Galindo ignored

the directive to leave the gun in the house and in response to the officer’s command “manos,”

reached into his pocket and drew a gun. Even assuming in a light most favorable to the Plaintiff

that this was done in an ill-conceived attempt at surrender, it could hardly be more provocative.

The fact that it is not addressed from beginning to end of this action speaks volumes to the

insufficiency of the attack on qualified immunity on these facts.

Much ink is spilled in Plaintiff’s papers on disputed facts which are not material given the

qualified immunity standard. The Plaintiff repeatedly asserts that the BWC footage “blatantly

6 The Complaint in paragraphs 38-41, describes the events from the first command “Rubin manos” to the English

command “drop the gun” without any hint that there is a gun, much less that the gun had come from Galindo’s

pocket or that he had reached into that pocket after the command “manos” to pull the gun out.

contradicts” the other evidence in the case and especially the deposition testimony of Officer

Guerra. She asserts that the video footage requires rejection of Defendants’ summary judgment

motions and the granting of her own. But that footage does no such thing. To the extent there is

discrepancy between Officer Guerra’s testimony and the video footage, the Court relies on the

video footage especially that taken by Officer Trans-Thompson’s BWC which captures the

imminent threat to officers and others that a reasonable officer in Guerra’s position would have

faced in confronting a non-compliant, armed subject in the totality of circumstances just described.

This Court’s conclusion that Officer Guerra did not violate Galindo’s statutory or

constitutional rights is amply supported by Fourth Circuit case law. In Anderson v. Russell, the

Fourth Circuit set aside a jury verdict in favor of a plaintiff on the issue of excessive force,

concluding that the defendant officer’s use of deadly force was reasonable to protect himself

against a perceived immediate threat. 247 F. 3d 125, 130 (4th Cir. 2001). There a police officer

was justified in using deadly force when a subdued suspect lowered his hands toward what the

officer perceived to be a gun, in violation of the officer's verbal commands. Id. at 130–32. Even

though the suspect was merely trying to turn off his Walkman, the Fourth Circuit observed that

“[a]ny reasonable officer in [the officer's] position would have imminently feared for his safety

and the safety of others.” Id. at 131. It is interesting to note that, like Galindo, Anderson initially

complied with commands to raise his hand but then reached for his left pocket. Believing Anderson

was reaching for his weapon, the officer shot him three times. Anderson argued that a triable issue

of fact existed regarding the precise positioning of Anderson's hands and the speed at which he

was lowering his hands at the time he was shot. The Court found that any discrepancies between

the officers’ testimony and that of another witness about the positioning and speed at which

Anderson was lowering his hands did not raise an issue of triable fact.

The evidence establishes that immediately before Russell fired, Anderson was

reaching toward what Russell believed to be a gun. Any reasonable officer in

Russell's position would have imminently feared for his safety and the safety of

others.

Id. at 131.

Likewise, Sigman v. Town of Chapel Hill presented a comparable situation in which the

decedent’s actions created a situation that was “tense, uncertain and rapidly evolving.” 161 F.3d

782, 787 (4th Cir. 1998) (quoting Graham, 490 U.S. at 396–97). The Fourth Circuit upheld the

district court’s grant of qualified immunity in a case where the decedent was shot after a stand-off

with police precipitated by a 911 caller complaining that her boyfriend had been drinking, was out

of control, may have a knife and that she wanted police to calm him down. Police presence had

the opposite effect on the decedent who engaged in threatening comments before coming out of

the house armed with a knife and was subsequently shot. Factual disputes were alleged concerning

whether the decedent was armed and how close he had gotten to police before he was shot.

Nevertheless, the Court affirmed the grant of qualified immunity. Factors the court considered

included the officer’s prior knowledge of decedent’s drinking, his erratic and threatening behavior,

and the fact that he ignored the officer’s commands. Id. at 787. “It is undisputed that the

atmosphere was volatile and threatening. These circumstances are exactly the kind that a qualified

immunity analysis requires us to consider.” Id. (quoting Graham, 490 U.S. at 396–97; Elliott, 99

F.3d at 642).

In Slattery v. Rizzo, Justice Powell, sitting by designation, authored an opinion reversing a

district court’s refusal to grant qualified immunity to an officer who during a drug “sting” operation

shot a passenger in a car who had refused to show his hands at the officer’s command. 939 F.2d

213, 214–15 (4th Cir. 1991). The officer could not see Slattery’s left hand clearly and mistakenly

thought he was holding a gun when in fact his hand was around a beer bottle. Id. at 215.

Nonetheless, the Court held that “a reasonable officer could have had probable cause to believe

that the appellee posed a deadly threat and therefore would be authorized to use deadly force. Id.

at 216–17.

Although not a published Circuit court case, Knibbs v. Momphard is instructive. There, the

district court granted summary judgment on an officer’s claim of qualified immunity. No. 1:19-

cv-130, 2020 WL 6528860, at *5, 11 (W.D.N.C. Nov. 5, 2020). Officers responding to a

disturbance call heard a shotgun being “racked” on the other side of a window and commanded

the possessor to “put it down” several times. Id. at *3–4. When the subject did not comply, fearing

for his life, the officer shot six times killing the decedent. Id. at *4. Plaintiff argued that a dispute

of facts existed based upon whether the decedent’s gun was pointed at the deputy or at the ceiling,

claiming that the physical evidence opined on by plaintiff’s forensic expert “wholly contradicts

[the officer’s] imagined version of the events.” Id. at *7. In finding qualified immunity, the court

disagreed reasoning:

First, the possibility of confusion or misperception by an officer who then applies

deadly force in part based on his confusion or misperception need not signify a

difference of triable fact. What matters is whether the officers

acted reasonably upon the information available to them and whether they

undertook an objectively reasonable investigation with respect to that information

in light of the exigent circumstances they faced. In other words, even assuming

that Deputy Momphard misperceived that Knibbs’ gun was pointed directly at him,

and assuming that, in fact, the gun was pointed more toward the ceiling, Deputy

Momphard did not have to detect that Knibbs was actually aiming and pulling the

trigger before Deputy Momphard used deadly force to protect his own life.

Id. at *8 (internal quotations and citations omitted); see also Elliott, 99 F.3d at 644.7

The cases cited by Plaintiff do not alter this analysis. In Hensley v. Price, officers were

7 “[T]he Fourth Amendment does not require omniscience. Before employing deadly force, police must have sound

reason to believe that the suspect poses a serious threat to their safety or the safety of others. Officers need not be

absolutely sure, however, of the nature of the threat or the suspect's intent to cause them harm—the Constitution

does not require that certitude precede the act of self protection.” Elliot, 99 F.3d at 644.

responding to a domestic call in the middle of the day and were approached by a man holding a

gun at his side. 876 F. 3d 573, 578–90 (4th Cir. 2017). They shot him. Id. The Fourth Circuit

found that the district court had not clearly erred in holding that qualified immunity was not

available as a matter of law where the jury could find that decedent was shot “only because he was

holding a gun.” Id. at 582. Judge Agee makes it explicit that two factors controlled:

Hensley’s altercation with Ferguson had concluded by the time he walked off the

porch; therefore, because he never raised his weapon toward the Deputies, he was

not immediately threatening to anyone at the scene. Second, the plaintiffs argue

that the Deputies’ actions were all the more unreasonable here because they shot

without warning Hensley to drop the gun or communicating with him in any way.

Id. But these facts are readily distinguishable from the instant case. In Hensley, officers issued no

commands. Here, Galindo ignored directives in Spanish to leave the gun inside, to show “hands,”

and ultimately to “drop the gun.” The instant shooting for the reasons previously detailed involved

much, much more than simply “holding a gun.” The Hensley Court went out of its way to

distinguish the holding in Hensley from those of two previous Fourth Circuit cases, Anderson and

Slattery:

In both cases, once the officer issued a verbal command, the character of the

situation transformed. If an officer directs a suspect to stop, to show his hands or

the like, the suspect’s continued movement likely will raise in the officer’s mind

objectively grave and serious suspicions about the suspect’s intentions. Even when

those intentions turn out to be harmless in fact, as in Anderson and Slattery, the

officer can reasonably expect the worst at the split-second when he acts.

Id. at 585. This case is akin to Anderson and Slattery, not Hensley.

In Cooper v. Sheehan, the plaintiff was shot by deputies who tapped on his door but did

not announce who they were. 735 F.3d 153, 154–56 (4th Cir. 2013). Cooper peered out a window,

and upon seeing no one picked up his shotgun and went outside to investigate. Id. As Cooper

stepped out onto his porch, the officers seeing his shotgun pointed down commenced firing at him

without any warning. Id. The Fourth Circuit affirmed the lower court’s denial of qualified

immunity. Id. at 160. But they did so citing approvingly the district court’s caveat:

The court acknowledged that if Cooper had stepped onto a dark porch armed despite

knowing law enforcement officers were approaching his door, that certainly could

affect a reasonable officer’s apprehension of dangerousness. Critically, however,

the court determined that no reasonable officer could have believed that Cooper

was aware that two sheriff deputies were outside when he stepped onto the porch.

Id. at 157 (internal quotations and citations omitted).

In the instant case, a reasonable officer in Guerra’s position would have known not only

that Galindo knew officers were present but also that Galindo had been told to leave his gun inside

and show hands but had instead reached for a gun. In addition, unlike in Hensley, where the

officers fired without issuing a command, Galindo was told repeatedly by officers to show hands

and to put the gun down.

Finally, in the unpublished case cited by Plaintiff, Pena v. Porter, a pair of officers

searching for a fugitive came to Pena’s door late at night but did not identify themselves. 316 F.

App’x 303, 305–09 (4th Cir. 2009). Pena awoke to the sound of his dogs barking and, with no

knowledge that the police were outside, opened his door while holding a rifle pointed toward the

ground. Id. at 310–11. One of the officers saw the firearm and immediately fired two shots that

struck Pena. Id.

The Fourth Circuit found that, under the circumstances, Pena had a “perfectly reasonable”

rationale for holding the rifle, which “should have been apparent to the officers at the time of the

shooting.” Id. at 312. The court then explained that Pena’s rights had been violated because

“[a]bsent any additional factors which would give the [officers] probable cause to fear for their

safety or the safety of others, the mere presence of a weapon is not sufficient to justify the use of

deadly force.” Id. As should be obvious by now, this Court does not perceive the instant case to

be a “failure to announce” and/or “mere presence of a weapon” case but rather one that bore all

the indicia of facts justifying qualified immunity.

B. State-Law Negligence, Wrongful Death, Assault and Battery, and Punitive

Damages

The Court incorporates its analysis concerning the reasonableness of Defendant Guerra’s

actions in the previous section and grants summary judgment here on the state law claims based

upon the conduct of Guerra and concomitant civil liability. With respect to Plaintiff’s claim of

negligence/wrongful death, it is the same standard as applied to a claim of wrongful use of deadly

force under Section 1983. The other claim of negligence, Infliction of Emotional Distress, is

predicated on a finding of negligence on behalf of the Defendant. Finally, a claim of assault and

battery is unavailing where the court has found as a matter of law that Defendant Guerra’s conduct

was justified and reasonable. In the absence of a showing of negligence, much less willful or

wanton conduct, the claim for punitive damages fails.

C. Negligent Training

Plaintiff asserts a claim of negligent training against the City, alleging:

 the City had a duty to train officers to respond reasonably to situations where individuals

call the police to ask for help;

 the City was negligent in training Guerra in the proper procedure for responding to an

incident like the one at issue in this case;

 officers should have been trained in approaching a person known to have a mental illness

and in recognizing the need for an officer with crisis intervention team (“CIT”) training at

the scene;

 CIT training was completely ineffective, a problem known to the Charlotte-Mecklenburg

Police Department (“CMPD”) as a result of other incidents involving mentally ill persons;

 the officers should have been trained that a Spanish translator was necessary and not to

give commands to a known Spanish speaker in English;

 Guerra, Suggs, and other officers were improperly trained in the use of deadly force; and

 this negligent training proximately caused the death of Galindo.

(Complaint, 1-2, ¶¶ 66-71).

North Carolina recognizes claims of negligent training based on the general elements of

negligence. Swick v. Wilde, No. 1:10-cv-303, 2012 WL 3780350, at *30 (M.D.N.C. Aug. 31,

2012) (citing Floyd v. McGill, 575 S.E.2d 789, 793–94 (N.C. Ct. App. 2003) (evidence sufficient

to permit jury to determine whether transit authority met its duty of care while training bus driver)).

To make out a claim for negligence, a plaintiff must establish: (1) the defendant owed a duty to

the plaintiff; (2) the defendant breached that duty; (3) and the breach was an actual and proximate

cause of the plaintiff’s injury. Shook v. Lynch & Howard, P.A., 563 S.E.2d 196, 197 (N.C. Ct.

App. 2002). Generally, whether a plaintiff has established the requisite elements of negligence is

a matter for the jury. Gibson v. Ussery, 675 S.E.2d 666, 668 (N.C. Ct. App. 2009). Summary

judgment, therefore, is appropriate only if there are no genuine issues of material fact and there is

no evidence supporting one of the elements of negligence. Shook, 563 S.E.2d at 197.

In responding to the City’s Motion for Summary Judgment on the claim of negligent

training, Plaintiff faults the City for arguing the wrong legal standard and points to Guerra’s alleged

violation of CMPD Standard Operating Procedures (“SOPs”) regarding the use of interpreter

services, CIT techniques, and deadly force. (38, Response at 8–10). However, she does not point

to any evidence showing the City’s training was itself deficient. Indeed, Plaintiff’s expert

witnesses each opined that Guerra, Suggs, and other officers violated standards for dealing with

mentally ill and Spanish-speaking persons and for using deadly force, (Tucker Report, 33-9, p. 4–

6 (considering law enforcement standards generally); Harmening Report, 33-15, p. 14–19

(considering CMPD SOPs); Harmening Depo., 40-1, p. 96-98), but neither criticized the City’s

training of the officers.

Furthermore, there is no showing that any alleged negligent training proximately caused

the death of Galindo. Galindo had ignored or rejected the advice of the Spanish speaking

dispatcher and the Spanish command of Officer Guerra. There is no evidence that a Spanish

translator would have been any more successful. Additionally, Plaintiff has failed to present any

expert testimony on the applicable standard of care, without which a jury would have no basis for

assessing duty and breach of duty.

The Court, therefore, finds there is insufficient evidence of negligence on the part of the

City to establish a genuine issue for trial. See Swick, 2012 WL 3780350, at *30-31 (naked

assertion about police academy training failed to create genuine issue of material fact on claim that

town negligently trained officers).

IV. CONCLUSION

IT IS, THEREFORE, ORDERED that:

1. Defendants’ Motions for Summary Judgment, (Doc. Nos. 27, 29), are GRANTED; and

2. Plaintiff's Motion for Partial Summary Judgment, (Doc. No. 30), is DENIED.

The Clerk is directed to close this case.

Signed: September 30, 2021

Otef$ 4 Cr Of

Robert J. Conrad, Jr. as

United States District Judge ee

20