Waller v. City of Fort Worth Texas

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ANGIE WALLER; and §

CHRIS WALLER, §

Plaintiffs, §

§

TERRY WAYNE SPRINGER; and §

GAYLA WYNELL KIMBROUGH, §

Intervenors, §

§

v. § CIVIL ACTION NO. 4:15-CV-670-P

§

CITY OF FORT WORTH TEXAS; §

and §

RICHARD A. HOEPPNER, §

Defendants. §

AMENDED OPINION AND ORDER1

Around 1:00 a.m. on May 27, 2013, Fort Worth Police shot and killed a 72-year-old

man in his own home. Police were responding to a burglary alarm at a house across the

street. Due to multiple mistakes, they instead responded to Jerry Waller’s house, shined

their flashlights in his windows, and woke him up. Thinking his house was being

burglarized, Waller grabbed his gun and headed to his garage to investigate. There,

although the parties disagree how it occurred, an innocent man lost his life.

This is an undeniably tragic case. But under the law, the City can only be liable for

Waller’s death if its policies were the moving force behind the officer’s use of excessive

1This Amended Opinion and Order replaces in its entirety the Opinion and Order issued in

this case on January 22, 2021. ECF No. 389. This Amended Opinion and Order merely corrects

non-substantive grammatical errors in the earlier Opinion and Order.

force. The City argues that—as a matter of law—the undisputed facts show that the policies

Plaintiffs complain of—failure to verify addresses, protocol on burglary calls, and staffing

shifts with rookies—are too attenuated to the officer’s use of force. After considering the

City’s Motion for Summary Judgment (ECF Nos. 306–09), Plaintiffs’ Response (ECF Nos.

346–47), the City’s Reply (ECF No. 367), and applicable law, the Court, restrained by

precedent, is duty bound to agree with the City. Therefore, the City’s motion is

GRANTED.

BACKGROUND

A. Material Facts

Early in the morning on May 27, 2013, the Fort Worth Police Department (FWPD)

dispatched first-year officers Hoeppner and Hanlon to respond to a burglary-alarm call.

Pls.’ MSJ App’x at 61, ECF No. 314-1. Under the City’s policies, more experienced

officers get first pick of shifts, and their first choice is rarely the midnight shift, so it is not

unusual for two rookie officers to get sent to this type of call at this hour. Id. at 49–51.

Unfortunately, the officers went to the wrong house. Id. at 62–63. Following their training,

the officers walked around the house and scanned the perimeter with their flashlights. Id.

at 22. Hanlon then went to the front door and left Hoeppner in the back near the open

garage door. Id. at 62–63. When Hanlon reached the front door, he radioed Hoeppner to

join him in the front. It was 1:06 a.m. Id. at 63–64.

According to Plaintiffs, the officers’ flashlights awoke the homeowner, 72-year-old

Jerry Waller. Waller got out of bed and, still shirtless and without shoes, walked into his

garage holding his gun. Id. at 64. Hoeppner saw Waller enter the garage, approached the

garage with his gun aimed at Waller, shined his flashlight in Waller’s eyes, and yelled

repeatedly, “Drop the gun!” Id. at 63. Hearing the yells, Hanlon raced to the back of the

house. Id. at 63–64. When he got there, he started yelling, “police!” or something similar.

Id. at 64. After a few seconds of yelling, Waller put his gun on the trunk of the car in the

garage. Id. Now defenseless, Waller raised his hands near his head and used his left hand

to block the flashlight from his eyes. Despite Waller’s hands being empty and raised in the

air, Hoeppner fired six shots into Waller. Hanlon radioed dispatch that an ambulance was

needed at 1:06:50 a.m. Id.

B. Procedural History

On May 26, 2015, Plaintiffs filed their complaint in federal court alleging claims

under 42 U.S.C. § 1983. Originally, the suit named as defendants most of the investigating

officers and the City. By June 20, 2016, following the Court’s scheduling order (ECF No.

140), the officers filed motions to dismiss based on their qualified-immunity defense.

Because qualified immunity is unavailable to municipalities, the proceedings did not

include the City. On April 12, 2018, the Court issued orders dismissing all claims except

Plaintiffs’ excessive-force claim against Hoeppner and a conspiracy to cover-up a crime

against several officers. ECF Nos. 200, 201. The Fifth Circuit affirmed the excessive-force

claim but reversed and dismissed the conspiracy claim. Waller v. Hanlon, 922 F.3d 590

(5th Cir. 2019) (ECF No. 221).

After the interlocutory appeal, Plaintiffs’ sole remaining § 1983 theories were (1)

excessive-force against Hoeppner and (2) municipal-liability against the City. On July 25,

2019, Plaintiffs confirmed this in a court-ordered status report. ECF No. 228. Plaintiffs

described their claims against the City as follows:

The Plaintiffs’ claims against the City of Fort Worth are that it failed to

properly train and supervise probationary and inexperienced officers

knowing that their actions would lead to excessive use of force contrary to

the Forth and Fourteenth Amendments to the U.S. Constitution and that the

City and its policy making officials were consciously indifferent to police

coverups, particularly when the officer uses excessive use of force.

Joint Status Report at 12–13, ECF No. 228. In the same report, Plaintiffs represented their

claim against Hoeppner as an excessive-force claim. Operating under these representations,

the parties conducted discovery until the deadline for dispositive motions, October 9, 2020

(see ECF No. 284), when both Plaintiffs and the City filed cross motions for summary

judgment regarding the City’s liability. These motions are now before the Court.

ANALYSIS

A. Plaintiffs’ Claims

The analysis of Plaintiffs’ claims starts by determining what their claims are.

Plaintiffs’ summary-judgement briefing appears to argue for the City’s liability under an

invasion-of-curtilage or unconstitutional-entry-on-land theory. Pls.’ MSJ Brief at 8, ECF

No. 313. As the Court previously ordered, the only constitutional violation contained in

Plaintiffs’ complaint relates to Hoeppner’s use of excessive force. ECF No. 388 at 1–3. For

the reasons set out in that order, the Court maintains that Plaintiffs’ pleadings only

implicate one constitutional violation: excessive force.

Plaintiffs’ claims against the City likewise center on its approval of excessive force.

Their First Amended Complaint states that the City has “long been aware and publicly

discussed this excessive use of force by probationary officers . . . .” Pls.’ 1st Amend. Cmp’t

at ¶ 110, ECF No. 41. Again, Plaintiffs state that the City’s “tolerance and approval of this

use of excessive force is the custom and policy of the City of Fort Worth.” Id. at ¶ 124; see

also ¶¶ 125, 127, 128, and 132. Nowhere does Plaintiffs’ complaint allege problems with

the City’s policies concerning invasion of curtilage or burglary-call protocol. Moreover,

about 17 months ago, Plaintiffs specifically complained that the City’s policies “lead to

excessive use of force . . . .” Joint Status Report at 12–13, ECF No. 228. These

representations are due respect, and the City was entitled to rely on them for discovery and

summary-judgment briefing. See Boswell v. Hon. Gov. of Tex., 138 F. Supp. 2d 782, 786

(N.D. Tex. 2000) (Mahon, J.) (finding that the confusing nature of plaintiffs’ claims “forces

[d]efendants to speculate as to the nature of [p]laintiffs’ causes of action, handicapping

[d]efendants and making them unable to defend themselves”).

For these reasons, Plaintiffs’ complaints about the City’s policies are limited to

those relating to Hoeppner’s use of excessive force. Although there is a genuine dispute

whether Hoeppner used excessive force (ECF No. 388), for purposes of this order, the

Court assumes that Hoeppner in fact used excessive force.

B. Summary-Judgment Standard

Summary judgment is proper when the pleadings, depositions, admissions,

disclosure materials on file, and affidavits, if any, “show[] that there is no genuine dispute

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

CIV. P. 56(a), (c)(1). A fact is material if the governing substantive law identifies it as

having the potential to affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). An issue as to a material fact is genuine “if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.” Id.; see also Bazan ex

rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001) (“An issue is ‘genuine’ if it

is real and substantial, as opposed to merely formal, pretended, or a sham.”). To

demonstrate a genuine issue as to the material facts, the nonmoving party “must do more

than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The

nonmoving party must show that the evidence is sufficient to resolve issues of material fact

in his favor. Anderson, 477 U.S. at 249.

When evaluating a motion for summary judgment, the Court views the evidence in

the light most favorable to the nonmoving party. Id. at 255. However, it is not incumbent

upon the Court to comb the record in search of evidence that creates a genuine issue as to

a material fact. See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). The nonmoving

party must cite the evidence in the record that establishes the existence of genuine issues

as to the material facts. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “When

evidence exists in the summary judgment record but the nonmovant fails even to refer to it

in the response to the motion for summary judgment, that evidence is not properly before

the district court.” Malacara, 353 F.3d at 405.

C. Municipal Liability

In this case, the City did not violate Waller’s constitutional right to be free of

unreasonable seizure through excessive force—its employee, Officer Hoeppner, did. Under

§ 1983, a municipality cannot be liable, under the doctrine of respondeat superior, for

merely employing a person that violated someone’s rights. Monell v. Dep’t of Social Servs.,

436 U.S. 658, 691 (1978). Rather, a municipality, such as the City, can be liable under 42

U.S.C. § 1983 only for its own acts. See Connick v. Thompson, 563 U.S. 51, 59 (2011).

“To hold a municipality liable under § 1983 for misconduct of an employee, a plaintiff

must show, in addition to a constitutional violation, that an official policy promulgated by

the municipality’s policymaker was the moving force behind, or actual cause of, the

constitutional injury.” James v. Harris Co., 577 F.3d 612, 617 (5th Cir. 2009).

This standard has developed specific requirements regarding the causal link

between the policy and the constitutional violation and the municipality’s culpability in

enacting the policy. These requirements must be rigorously enforced. Alvarez v. City of

Brownsville, 904 F.3d 382, 390 (5th Cir. 2018). “These requirements must not be diluted,

for where a court fails to adhere to rigorous requirements of culpability and causation,

municipal liability collapses into respondeat superior liability.” James, 577 F.3d at 618.

Plaintiffs argue that the City should be held liable for the following five policies:

(a) the City did not require its police officers to visually verify the address

to which they had been dispatched on the scene;

(b) the City did not properly train its officers that there are odd-numbered

addresses on one side of the street and even on the other;

(c) the City did not and does not require its officers to verbally identify

themselves when confronting citizens and prior to using deadly force;

(d) the City policy is to allow its officers to enter and search the curtilage

of residences without contacting or receiving permission of the

homeowner; and

(e) the City had a policy of generally pairing rookie police officers with

other rookie police officers after short field training experience and

thus failing to provide sufficient supervision of the

younger/inexperienced officers.

Pls.’ MSJ Resp. at 2, ECF No. 346. For purpose of this order, the Court assumes these

policies existed and were promulgated by the correct policymaker. The Court makes these

assumptions not because they are necessarily true, but because it is unnecessary to wrestle

with those difficulties. For the independent reasons below, the City cannot be liable for

these alleged policies.

1. None of the policies or customs were “moving forces” in Hoeppner’s use of

excessive force.

The first requirement that must not be diluted concerns the causal link between the

policy and the constitutional violation. Originally, the Court stated the policy or custom

must be a “moving force” in the plaintiff’s constitution violation. Monell, 436 U.S. at 694.

Since then, the Fifth Circuit has interpreted this phrase as requiring the plaintiff to “show

direct causation, i.e., that there was ‘a direct causal link’ between the policy and the

violation.” Alvarez, 904 F.3d at 390. This requires “more than a mere ‘but for’ coupling

between cause and effect.” Fraire v. City of Arlington, 957 F.3d 1268, 1281 (5th Cir. 1992).

In this case, the constitutional violation was Hoeppner’s excessive use of force. This

is key because “there must be a direct causal link between the municipal policy and the

constitutional deprivation.” Piotrowski v. City of Houston, 237 F.3d 567, 580 (5th Cir.

2001). In an excessive force case, the issue is whether the officer’s use of force was

reasonable. Graham v. Connor, 490 U.S. 386, 394–96 (1989). It is well-established that

officers are justified in using deadly force whenever they reasonably fear serious bodily

harm. See e.g., Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) (“An officer’s use of

deadly force is not excessive, and thus no constitutional violation occurs, when the officer

reasonably believes that the suspect poses a threat of serious harm to the officer or to

others.”). “The ‘reasonableness’ of a particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Graham, 490 U.S. at 396. Importantly, the inquiry focuses on the officer’s

decision to use deadly force, therefore “any of the officer’s actions leading up to the

shooting are not relevant for the purposes of an excessive force inquiry in [the Fifth]

Circuit.” Harris v. Serpas, 745 F.3d 767, 772 (5th Cir. 2014).2

Identifying the constitutional violation focuses the analysis. Hoeppner’s decision to

use excessive force occurred in the time between Hanlon’s first radio call, before any

yelling, and his second radio call for an ambulance—44 seconds. Therefore, any acts or

events before that time are immaterial. It follows that the Court must ignore the case’s most

disturbing fact—that the officers were at the wrong house. The Court must focus solely on

policies that would have affected Hoeppner’s judgment in those 44 seconds.

Four of the policies (policies (a), (b), (d), and (e)) do not impact Hoeppner’s thinking

or judgment during those 44 seconds. They do no more than set the stage for the events

2The Fifth Circuit has applied this principle numerous times. See e.g., Rockwell v. Brown,

664 F.3d 985, 992–93 (5th Cir. 2011) (holding that circumstances leading up to use of force were

irrelevant and stating that the court “need not look at any other moment in time”); Bazan v. Hidalgo

Cnty., 246 F.3d 481, 493 (5th Cir. 2001) (“The excessive force inquiry is confined to whether [the

officer or another person] was in danger at the moment of the threat that resulted in [the officer’s

use of deadly force].”) (emphasis added); Fraire, 957 F.2d at 1276 (“[R]egardless of what had

transpired up until the shooting itself, [the suspect’s] movements gave the officer reason to believe,

at that moment, that there was a threat of physical harm.”) (emphasis added).

that followed. These policies may be “but for” causes, but they are not the moving force

behind Hoeppner’s use of force. These policies are described below.

First, the policies concerning addresses (policies (a) and (b) above) are irrelevant

because they would only have affected Hoeppner’s acts before the shooting. Harris, 745

F.3d at 772 (“any of the officer’s actions leading up to the shooting are not relevant for the

purposes of an excessive force inquiry”). Although the officers’ errors and the City’s

failure to have a policy aimed at reducing such errors are clear and worthy of blame, they

did not contribute to Hoeppner’s use of excessive force.

Second, the City’s policy of entering a house’s curtilage is also irrelevant. That

policy may be a “but for” cause for the shooting, but that is insufficient. Fraire, 957 F.3d

at 1281 (causation requires “more than a mere ‘but for’ coupling between cause and

effect”). How and why Hoeppner was there are irrelevant. The question is, once there, was

Hoeppner’s use of force reasonable? And this policy does not make either answer more

likely. This policy has no “direct causal link” to Hoeppner’s decision making. See Alvarez,

904 F.3d at 390 (stating plaintiff must show “a direct causal link between the policy and

the violation”).

Finally, the City’s policy of staffing rookie officers on the night shift cannot be a

moving force of Hoeppner’s use of excessive force. Plaintiffs argue that the policy causes

problems because there are no senior officers around to help train or supervise the younger

officers. Pls.’ MSJ App’x at 51. But when Hoeppner met Waller in the garage, one-on-one,

early in the morning, both armed with guns, there was no time for additional training. This

was the moment his training was put to the test. The experience level of the officer running

around the house as back up is irrelevant. Although a more experienced officer may have

avoided getting Hoeppner in that difficult position, that hypothetical is irrelevant. Harris,

745 F.3d at 772 (“any of the officer’s actions leading up to the shooting are not relevant

for the purposes of an excessive force inquiry”). Again, this policy could not have affected

Hoeppner during the material time.

The last policy Plaintiffs identify, which gives officer’s the option of verbally

identifying as police as opposed to requiring it, fails to meet “but for” causation standards.

First, there is undisputed evidence that Hanlon did verbally identify as police. Pls.’ MSJ

App’x at 64. Second, the goal of identifying as police is to achieve cooperation. In this

case, that meant getting Waller to put down the gun. But Waller did put down his gun.

Plaintiffs argue Hoeppner still shot. Accordingly, even if Hoeppner had verbally identified

himself, it would not have changed the outcome. Finally, this policy, like the others, is not

concerned with use of excessive force. An officer has the right to defend himself if he is

reasonably threatened. When an officer reasonably fears for his life, there may be no time

to identify as police. Of course, Plaintiffs argue that Hoeppner did not fear for his life and

that he shot a defenseless Waller. But if Hoeppner shot an unarmed man, why wouldn’t he

also violate a policy of identifying himself? This policy did not have any impact on

Hoeppner’s decision making in the relevant 44 seconds.

For these reasons, none of the identified policies have the required “direct causal

link between the municipal policy and the constitutional deprivation.” Piotrowski, 237 F.3d

at 580. Accordingly, Plaintiffs “failed to provide evidence to the demanding standards

required by Monell and its progeny to hold the City liable.” Peterson v. City of Fort Worth,

588 F.3d 838, 852 (5th Cir. 2009).

2. The City did not enact the policies or customs with deliberate indifference to the

known or obvious consequences that use of excessive force would result.

Even if Plaintiffs could demonstrate a fact issue on causation, or if they had pleaded

an invasion-of-privacy violation, their arguments would still fail because the policies were

not enacted with the requisite culpability. This is the second requirement that “must not be

diluted.” Alvarez, 904 F.3d at 390.

For the City to be liable, the policy must be either facially unlawful or, if the policy

is facially lawful, enacted with “deliberate indifference as to its known or obvious

consequences.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 409–10

(1997). This is “a stringent standard of fault, requiring proof that a municipal actor

disregarded a known or obvious consequence of his action.” Id. (emphasis added). It is a

“degree of culpability beyond mere negligence or even gross negligence; it must amount

to an intentional choice, not merely an unintentionally negligent oversight.” James, 577

F.3d at 617–18. The policymaker must have “actual knowledge of the facts showing that a

risk of serious harm exists as well as the [policymaker’s] having actually drawn that

inference.” Brown v. Callahan, 623 F.3d 249, 255 (2010). The burden to show deliberate

indifference falls on Plaintiffs. Peterson, 588 F.3d at 351–52. “Proof of deliberate

indifference normally requires a plaintiff to show a pattern of violations.” Brown, 623 F.3d

at 255.

a. Policies (a) and (b) – Failure to Train Officers on Addresses

Regarding the failure to verify addresses or train officers regarding address

numbering, Plaintiffs fail to cite any evidence that suggests the City enacted the policies

with deliberate indifference. Plaintiffs failed to establish any pattern of prior problems.

Plaintiffs asked then-Chief Kraus if he was aware that Fort Worth Police had responded to

the wrong address before. He testified, “I’m not aware, but its reasonable.” Pls.’ MSJ

App’x at 24. This is insufficient to raise a fact issue that the City enacted the policy with

deliberate indifference to constitutional violations. See James, 577 F.3d at 617–18

(requiring policy maker to have “actual knowledge of the facts showing that a risk of

serious harm exists”).

Moreover, once the City became aware of their policies’ deficiency, it corrected

both training issues. After this incident, the City drafted a “Critical Police Incident” Report.

Pls.’ MSJ App’x at 70. The Report identified both issues as training deficiencies. Id.

Apparently, this used to be required training but—for unknown reasons—fell off the City’s

syllabus. Pls.’ MSJ App’x at 27. By July 30, 2013, these items were already added to the

City’s officers’ training. Id. There is no evidence how or why it fell off, but it is Plaintiffs’

duty to bring that evidence. Peterson, 588 F.3d at 844. Without additional evidence, it

appears to be, at most, negligence. James, 577 F.3d at 617–18 (requiring municipal liability

to be “beyond mere negligence or even gross negligence.”). This does not show deliberate

indifference.

b. Policy (c) – Failure to Verbally Identify

Next, Plaintiffs argue that the City’s policy giving officer’s the option to verbally

identify themselves as police, as opposed to requiring it, was enacted with deliberate

indifference to the obvious risk that the highly probable outcome would be its officers’ use

of excessive force. See Peterson, 588 F.3d at 850. There is no evidence to support this.

Plaintiffs cite then-Chief Kraus’s testimony that the City’s policy required officers to

identify themselves as police through their uniform, identifiable markings, or “verbal

identification.” Pls.’ MSJ App’x at 15. Kraus admitted that “ideally [Hoeppner] would

[have] identified himself, but it was reasonable for him to demand that Mr. Waller put the

weapon down.” Id. at 38. All this shows is that the policy provides officers discretion,

which seems reasonable when an officer’s life is in danger. The Court determines that this

evidence fails to raise a fact issue that the City was deliberately indifferent. Further,

Plaintiffs did not attempt to show that this policy had resulted in any prior constitutional

violations. See Brown, 623 F.3d at 255 (“Proof of deliberate indifference normally requires

a plaintiff to show a pattern of violations.”), and Peterson, 588 F.3d at 851–52 (holding

that 27 prior excessive-force complaints in three years failed to establish a pattern).

Without further evidence to support this requirement, Plaintiffs failed to raise a fact issue

on whether the City enacted the policy with deliberate indifference.

c. Policy (d) – Curtilage

Next, Plaintiffs argue that the City’s policy on residential burglary calls was

unlawful. For these calls, the City’s custom was to survey the house and surrounding area

before contacting the occupants. Pls.’ MSJ App’x at 22. Plaintiffs first argue this is facially

unlawful. See e.g., Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018) (stating that the Fourth

Amendment protects the home and the curtilage—area immediately surrounding the home)

(internal quotations omitted). It is true that the area around a house is protected, but police

have long had authority to enter a house’s curtilage—or even a dwelling—to provide aid.

See e.g., Wayne v. U.S., 318 F.2d 205, 212 (D.C. Cir. 1963) (Burger, J.) (“The need to

protect or preserve life or to avoid serious injury is justification for what would be

otherwise illegal absent an exigency or emergency.”). Here, the City’s policy only allowed

officers to search the house’s curtilage on suspicion of burglary. In such a situation, the

Supreme Court has authorized police to enter a house and stated that “it would be silly to

suggest that the police would commit a tort by entering [a dwelling] . . . to determine

whether violence (or the threat of violence) has just occurred or is about to (or soon will)

occur . . . .” Georgia v. Randolph, 547 U.S. 103, 118 (2006). In this case, the officers were

at the wrong house, but that is not the policy’s fault. The officers negligently carried out

the policy. For this reason, the Court finds the policy is facially lawful.

The only evidence Plaintiffs cite to support the City enacted this policy with

deliberate indifference is an incident that occurred over five years after this incident. But

this single incident does not show a pattern. See Brown, 623 F.3d at 255 (“Proof of

deliberate indifference normally requires a plaintiff to show a pattern of violations.”).

Without more, two bad outcomes fail to show that it should have been obvious to the City

that the use of excessive force was the policy’s “highly predictable consequence.” Id. at

849. Liability requires “sufficiently numerous prior incidents, as opposed to isolated

instances.” Id. at 851 (internal quotations omitted) (emphasis added). And finally, the other

incident Plaintiffs cite occurred after this incident, not before. It could not provide notice

anyway. Therefore, Plaintiffs failed to raise a fact issue.

d. Policy (e) – Pairing Rookie Officers

Last, Plaintiffs argue that the City’s policy of pairing rookie officers together

supports the City’s liability. The policy allows more senior officers to pick shifts before

more junior officers. But the policy’s effect is to fill the midnight shift with rookie officers.

Pls. MSJ App’x at 50. This is facially lawful, and Plaintiffs fail to cite to any evidence that

the City enacted the policy when it was obvious that the policy’s highly predictable

outcome would be the use of excessive force.

Plaintiffs try to support this argument with three pieces of evidence. First, Plaintiffs

again try to show a pattern with the same incident discussed above that occurred five years

after this incident. For the reasons stated above, this is insufficient. Second, Plaintiffs cite

a police-body-camera company’s promotional video, showing a former FWPD Chief

discuss a 2013 incident involving rookie cops using excessive force. Id. at 49–50. But when

asked whether he was aware of this incident, Krause said, “no, sir.” Id. at 50. It cannot be

said that a policymaker is indifferent to something he is unaware of. Last, Plaintiffs cite

then-Chief Kraus’s deposition testimony. When asked whether this policy has caused

problems regarding the use of excessive force, Kraus said, “I don’t know that I can make

that, paint that broad a brush that that is leading to uses of force.” Pls.’ MSJ App’x at 50.

Then, when asked if the problem with putting mostly rookie officers on the same shift is

the lack of experience, Kraus admitted that “that is the argument against [the policy], yes.”

Id. at 51.

Together, this evidence fails to show that the City’s policy was enacted with

deliberate indifference. At most, Plaintiffs cite two other incidents. For the reasons above,

this is insufficient to raise a fact issue. See Peterson, 588 F.3d at 851–52 (holding that 27

prior excessive-force complaints in three years failed to establish a pattern). Further, it is

not clear the City’s policymaker was even aware of those incidents. See James, 577 F.3d

at 617–18 (requiring policy maker to have “actual knowledge of the facts showing that a

risk of serious harm exists”).

3. The City did not ratify Hoeppner’s use of excessive force.

Alternatively, Plaintiffs argue that, even if the policies were not enacted with

deliberate indifference, the City ratified Hoeppner’s use of excessive force. See Grandstaff

v. City of Borger, 767 F.2d 161, 171 (5th Cir. 1985). Plaintiffs rely on the City’s failure to

discipline Hoeppner for the shooting. Pls.’ MSJ App’x at 44. Although there is authority

allowing a municipality to be liable after a single incident, it is limited to “extreme factual

situations.” Peterson, 588 F.3d at 848. For example, in Grandstaff, police chased a suspect

onto Grandstaff’s rural property. Id. at 165. The police knew innocent people lived on the

property. Id. at 167–68. When Grandstaff drove to the police, coming from a different

direction than the suspect’s abandoned car, the police “poured their gunfire at the truck and

into the person of James Grandstaff.” Id. at 168. Afterwards, the “officers and their

supervisors denied their failures and concerned themselves only with unworthy, if not

despicable, means to avoid legal liability.” Id. at 166. The Fifth Circuit held that the City’s

acts were so obviously reprehensible that the failure to admit any error ratified a policy of

excessive force. Id. at 171.

But this case is not such an “extreme factual situation.” See Snyder v. Trepagnier,

142 F.3d 791 (5th Cir. 1998) (refusing to find ratification when officer shot a fleeing

suspect in the back); and Peterson, 588 F.3d at 843–44 (refusing to find ratification when

officers dragged a sleeping drunk out of a car and beat him until his femoral artery

ruptured). Here, Hoeppner’s acts, in the light most favorable to Plaintiffs, are comparable

to shooting a fleeing suspect in the back, and that is not extreme enough. Moreover, the

City performed a follow up investigation and made changes to their policies. This does not

amount to a ratification of excessive force. This holds true even if the jury later finds

Hoeppner used excessive force. Peterson, 588 F.3d at 848 (stating that “a policymaker who

defends conduct that is later shown to be unlawful does not necessarily incur liability on

behalf of the municipality”).

CONCLUSION

For these reasons, the Court concludes that the policies Plaintiffs identify fail to

provide a basis for the City’s liability. This case is tragic and the circumstances of Mr.

Waller’s death are absolutely heartrending. This order is in no way an approval of the City’s

policies. The Court merely finds that Plaintiffs failed to produce evidence sufficient to raise

a fact issue regarding the demanding standards required in establishing municipal liability.

Accordingly, the City’s motion must be GRANTED.3 And for the same reasons, Plaintiffs’

motion for summary judgment (ECF No. 313) is DENIED.

3In reaching this holding, the Court notes its agreement with Judge Edward C. Burks of the

Supreme Court of Virginia, who in 1878, writing in an equally heartrending opinion, stated:

SO ORDERED on this 25th day of January, 2021.

Mark T. Pittman

UNITED STATES DISTRICT JUDGE

The unhappy condition of the appellee excites my commiseration; but courts of

justice are not allowed to be controlled in their decisions by considerations of that

character. “Compassion,” said an eminent Virginia chancellor, “ought not to

influence a judge, in whom, acting officially, apathy is less a vice than sympathy.”

Harris vy. Harris, 72 Va. 13, 32 (1878) (quoting Chancellor George Wythe, Commentary on Field’s

Ex’x v. Harrison & wife, in WYTHE’S REPORTS 282 (Minor’s Ed. 1794)).

The Court is also reminded of an apropos observation by another prominent Virginia jurist,

Brockenbrough Lamb:

We regret that the conclusion reached will prevent a recovery and may thereby

defeat the ends of justice in the particular case before us, but however that may be,

we must declare the law as we find it written and comfort ourselves with the

confident belief that in its results it will promote the ends of justice to all.

Brockenbrough Lamb, The Duty of Judges: A Government of Laws and Not of Men, in HANDBOOK

FOR JUDGES 93 (Donald K. Carroll ed., 1961).

19