Baker v. Coburn

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

BAKER, et ail., §

Plaintiffs,

Vv. ; 2:19-CV-077-Z

COBORN, ef al.,

Defendants. :

MEMORANDUM OPINION

AND ORDER

Before the Court are Defendants’ (1) Motions for Summary Judgment (ECF No. 37) and

to Exclude Plaintiffs’ Expert Noble (ECF No. 44), (2) the Magistrate Judge’s findings,

conclusions, and recommendations on those motions (ECF Nos. 65, 66), and (3) all related

pleadings. The Magistrate Judge recommends that Defendants’ Motion for Summary Judgment be

granted in part and denied in part. Defendants timely filed objections (ECF No. 68). After all

responses had been filed, the Court ordered additional briefing (ECF No. 72). After said briefing

was completed, the motions became ripe for determination.

After making an independent review of the pleadings, files, and records in this case, the

Court concludes that the findings and conclusions are correct in part. It is therefore ORDERED

that the findings, conclusions, and recommendation of the Magistrate Judge are ADOPTED IN

PART and that Defendants’ motion for summary judgment (ECF No. 37) is GRANTED IN ITS

ENTIRETY. Because the granting of summary judgment fully disposes of this case, Defendants’

Motion to Exclude Testimony (ECF No. 44) is DENIED as moot.

BACKGROUND

This case concerns Darion Baker (“Baker”) — a man who was shot and killed by a police

officer while fleeing in a stolen car from an attempted arrest. Ira Baker, individually and as

administratrix of the Baker’s Estate; Mario Baker; and Arlandra Williford, as next friend of

Baker’s minor child, C.W., (collectively “Plaintiffs”), brought this suit against Officer Richard

Keith Coborn (“Coborn”), Officer Michael Joseph McHugh (“McHugh”) (collectively “the

officers”), and the City of Stratford, Texas (“the City”).

Plaintiffs assert a cause of action under 42 U.S.C. § 1983 against Officers Coborn and

McHugh for violating Baker’s Fourth Amendment right to be free of excessive force. Against the

City, Plaintiffs assert a cause of action under Section 1983 under the well-known Monell theory

of liability. Defendants now move for summary judgment.

LEGAL STANDARDS

In a civil case, “[a] party may move for summary judgment, identifying each claim or

defense — or the part of each claim or defense — on which summary judgment is sought.” FED.

R. Civ. Proc. 56(b). When a summary judgment movant does not have the burden of proof on a

claim, it may obtain summary judgment by pointing the Court to the absence of evidence on any

essential element of the nonmovant’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

Once it does so, the nonmovant must go beyond its pleadings and designate specific facts

demonstrating that there is a genuine issue of material fact for trial. Jd. at 324-25; Little v. Liquid

Air Corp., 37 F.3d 1069, 1075 (Sth Cir. 1994). A genuine issue of material fact exists if the

evidence is such that a reasonable trier of fact could return a verdict for the nonmovant. Anderson

y. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is mandatory where the

nonmovant fails to meet this burden. Little, 37 F.3d at 1076.

To meet this burden, the nonmovant must show more than “some metaphysical doubt as to

the material facts’”—and may not rely on “conclusory allegations,” “unsubstantiated assertions,”

or “only a scintilla of evidence.” Jd. at 1075 (internal marks omitted). However, summary

judgment evidence is to be viewed in the light most favorable to the nonmovant. Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Rosado v. Deters, 5 F.3d 119,

123 (Sth Cir. 1994),

“A qualified immunity defense alters the usual summary judgment burden of proof.”

Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (citing Michalik v. Hermann, 422 F.3d 252,

262 (Sth Cir. 2005)). Specifically, when qualified immunity has been raised, “the moving party is

not required to meet its summary judgment burden for a claim of immunity.” Hathaway v. Bazany,

507 F.3d 312, 319 (5th Cir. 2007) (internal marks omitted) (citing Cousin v. Small, 325 F.3d 627,

637 (5th Cir. 2003)). Instead, “it is sufficient that the movant in good faith pleads that it is entitled

to qualified immunity. Once the movant asserts this affirmative defense, the burden shifts to the

plaintiff to rebut it.” Jd. (internal marks and emphasis omitted); Gates v. Tex. Dep’t of Protective

& Regul. Servs., 537 F.3d 404, 419 (5th Cir. 2008) (noting that when a government official pleads

qualified immunity, the plaintiff must “rebut the defense by establishing that the official’s

allegedly wrongful conduct violated clearly established law and that genuine issues of material

fact exist regarding the reasonableness of the official’s conduct.”).

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 vy. Deters, 5 F.3d 119, 122-23 (Sth Cir. 1993).

EVIDENCE

Viewed in the light most favorable to the nonmovant Plaintiffs, the summary judgment

evidence is as follows:

Baker and Gregory Dees (“Dees”) traveled by airplane to Los Angeles, California from

their home in Memphis, Tennessee. ECF No. 48 at 3. While in Los Angeles, Baker and Dees spent

all their money—including the money required to return home to Memphis. /d. At this juncture,

the duo decided to steal an Infiniti sedan that was parked — unoccupied, engine running — at a

Walgreens pharmacy. ECF No. 38 at 7. Shortly thereafter, Baker and Dees started driving east.

On February 21, 2018, Baker and Dees were driving the stolen vehicle east on Interstate

I-40 when they decided to stop in the small town of Stratford, Texas. Jd. Around 7:00pm, Officers

McHugh and Coborn observed the stolen vehicle driving “suspiciously” and decided to follow it.

Id. Shortly thereafter, the stolen vehicle pulled into a Pilot Travel Center near Highway 54, which

featured external fuel pumps and an adjacent convenience store. /d. Baker and Dees parked the

stolen vehicle alongside the fuel pumps, exited the vehicle, then entered the convenience store. Id.

With Baker and Dees inside the convenience store, Officers McHugh and Coborn drove

the police SUV alongside the parked stolen vehicle, recorded its license plate, and relayed all

identifying information to police dispatch. ECF No. 52 at 98-99. The dispatcher reported back to

Officers McHugh and Coborn that the Infiniti sedan was recently stolen in a “nonviolent theft.”

Id. at 99, The oPficers parked the police SUV near the convenience store. Jd. Officer Coborn exited

the police SUV and entered the convenience store. Pilot Video at 12:10-16. Open entry, three

customers approached Officer Coborn and reported that Baker and Dees were asking “suspicious”

questions about the byways and backroads to Memphis, seeking a route that would evade law

enforcement “checkpoints.” ECF No. 38 at 8.

Baker, Dees, and Officer Coborn exited the Pilot convenience store at the same time —

with Officer Coborn holding the door for the other two. Pilot Video at 13:32. Baker returned to

the driver’s seat of the stolen vehicle while Dees began to pump gas. /d. at 13:48. At the same

time, Officer Coborn climbed back into the police SUV. Jd. Next, the officers drove the police

SUV into a parked position directly behind the stolen vehicle and activated their red and blue

police lights. Dashcam Video at 0:20-33.

Upon seeing the police SUV, Dees immediately dropped the gas pump and climbed into

the passenger seat of the stolen vehicle. /d. at 0:35-36. Simultaneously, the two officers exited the

police SUV and approached the stolen vehicle. Jd. Officer Coborn, wearing brown, ran to the

driver-side door — ie., the left side of the video recording. Jd. at 0:35-39. Officer McHugh,

wearing black, ran to the passenger-side door —i.e., the right side of the video recording, between

the stolen vehicle and the fuel pump. Jd. Officer Coborn drew his firearm as he approached the

stolen vehicle. Pilot Video at 13:51—-54. Officer McHugh apparently drew his firearm as he exited

the SUV. Id.

The two officers shouted commands to Baker and Dees. /d. The commands included “let

me see your hands!” and, “roll the window down!” McHugh Video at 0:04. The stolen vehicle’s

side windows were darkly tinted, obstructing the officers’ view into the vehicle. ECF No. 39-1 at

70-74, 183-85.

Officer Coborn approached the driver-side window of the car, shouting commands, and

striking the window with his firearm. /d. at 14:00; Dashcam Video at 0:43. Unable to break the

driver-side window, Officer Coborn moved in front of the stolen vehicle, standing at the midpoint

of the vehicle’s front bumper. Dashcam video at 0:45—-46. Simultaneously, the stolen vehicle's

brake lights illuminated, indicating that the driver had activated the ignition and engine. Id.

Standing on the passenger side of the vehicle, Officer McHugh yelled, “you go forward...”

but was immediately interrupted when Officer Coborn discharged his firearm into the windshield.

McHugh Video at 0:05. From his position at the midpoint of the stolen vehicle’s front bumper,

Officer Coborn fired into the windshield approximately eight times before the car moved.

Dashcam Video at 0:47—-48.' In response, Baker turned the wheels of the stolen vehicle hard to the

left and accelerated. /d. at 0:48. The stolen vehicle accelerated past Officer Coborn, who continued

to fire. Id.

Seconds later, Officer McHugh discharged his firearm — but only after the stolen vehicle

accelerated forward and to the left. Jd. at 0:49-50. Officer McHugh later testified that he delayed

firing for two reasons: (1) to avoid shooting through the passenger-side window, and (2) to avoid

shooting Dees in the passenger-side seat. ECF No. 39-1 at 186-87. Instead, Officer McHugh

paused until he could view and fire through the rear passenger-side window. ECF No. 39-1 at

186-87. Officer McHugh also testified that he thought he was the one who fired the fatal shot that

ultimately killed Baker. ECF No. 39-2 at 193-94.

After the stolen vehicle had fully and completely passed them, Officer McHugh and Officer

Coborn ceased firing. Dashcam video at 0:50. Approximately three seconds elapsed between the

first shot fired and the last shot fired. Jd. at 0:47—50.

Two shots hit Baker. One travelled through soft tissue in his left shoulder, from back to

front, right to left, stopping in the upper bone in his left arm. ECF No. 52 at 177—78. This shot was

non-fatal. The second, fatal shot, travelled through the middle of Baker’s back, entering just to the

right of his spine, breaking two ribs and collapsing his left lung, then breaking another rib before

| The Magistrate Judge determined there was a fact question on whether Officer Coborn fired before the vehicle

moved, noting the lack of audio evidence. ECF No. 65 at 2. But contrary to the Magistrate Judge’s FCR, the Dashcam

Video does have audio. /d. The audio confirms that Officer Coborn fired several shots into the windshield before the

stolen vehicle began to move — just as Plaintiffs argued.

exiting the left side of his chest, moving at a slight upward trajectory. Id. at 175, 178-79. The

second shot — which collapsed his left lung — caused Baker to enter cardiorespiratory arrest and

die. Id. at 329. Plaintiffs’ medical examiner “stated in his report that Baker was [fatally] shot either

from his right side while he sat facing forward or from the rear as he was turned to the right toward

the passenger side of the car.” ECF No. 65 at 5.

After being shot, Baker lost control of the stolen vehicle, which drifted across the Pilot

parking lot, into the adjacent road, and into an empty Toot’n Totum parking lot — colliding with

a barrier at low speed, coming to a stop. Jd. Dees was subsequently arrested without incident.

Dashcam Video at 1:58-2:10. Baker died from the gunshot wounds before paramedics arrived.

McHugh Video at 2:10-3:15.

ARGUMENTS

The parties view the same video recordings, but reach different conclusions. Defendants

argue that Officer Coborn fired afier Baker reached below the dashboard — out of Officer

Coborn’s view — and turned the steering wheel of the car toward Officer Coborn. ECF No. 38 at

9, Defendants testified they heard Baker shift the stolen vehicle into drive, which is further

evidenced by the illumination of the brake lights. ECF No. 39-1, App. 244; Dashcam Video at

0:46-48. Defendants aver that they feared Baker was reaching below the dashboard to (1) retrieve

a firearm to shoot Officer Coborn or (2) ram Officer Coborn with the stolen vehicle. Jd.

Plaintiffs aver that Baker reached below the dashboard after Officer Coborn fired to avoid

the bullets, citing Dees’ deposition. ECF No. 52 at 169. While below the dashboard, Baker shifted

the stolen vehicle into drive and turned the steering wheel to avoid Officer Coborn — not to strike

him. Id. at 153, 159, 166, 169. After passing Officer Coborn, Baker sat up before being shot from

behind by either Officer Coborn or Officer McHugh. Jd at 169.

ANALYSIS

A. Qualified Immunity

Under 42 U.S.C. § 1983, private citizens may sue public officials in federal courts for

violations of their federal statutory or constitutional rights. Monroe v. Pape, 365 U.S. 167, 171

(1961). However, public officials enjoy an immunity from liability under Section 1983 known as

“qualified immunity.” When properly applied, qualified immunity “protects all but the plainly

incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

The Supreme Court has articulated a two-part test for determining if a public official is

entitled to qualified immunity. Pearson v. Callahan, 555 U.S. 223, 236 (2009). First, the Court

must determine whether the defendant’s conduct violated a federal right. Tolan v. Cotton, 572 U.S.

650, 656 (2014). Second, the Court must determine “whether the right in question was ‘clearly

established’ at the time of the violation.” Jd. (citing Hope v. Pelzer, 536 U.S. 730, 739 (2002)). A

court has discretion to determine the order in which it considers those questions. Pearson, 555

USS. at 236.

B. Officer Coborn is entitled to qualified immunity because the Plaintiffs have failed

to identify “clearly established law.”

1. The Constitutional Violation

“An officer’s use of deadly force is a seizure subject to the reasonableness requirement of

the Fourth Amendment.” Hatcher v. Bement, 676 F. App’x 238, 242 (Sth Cir. 2017) (internal marks

and citations omitted). To state a claim for excessive or deadly force against a police officer, a

plaintiff must demonstrate “(1) an injury (2) which resulted directly and only from a use of force

that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.”

Ontiveros y. City of Rosenberg, 564 F.3d 379, 382 (Sth Cir. 2009) (internal marks and citations

omitted).

“An officer’s use of deadly force is presumptively reasonable when the officer has reason

to believe that the suspect poses a threat of serious harm to the officer or to others.” /d. (citations

omitted). A court must determine the reasonableness of the deadly force “from the perspective of

a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v.

Connor, 490 U.S. 386, 396 (1989).

The only dispute on this issue is whether Officer Coborn used clearly unreasonable

excessive force against Baker. Such a determination “requires careful attention to the facts and

circumstances of each particular case, including (1) the severity of the crime at issue, (2) whether

the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is

actively resisting arrest or attempting to evade arrest by flight.” Jd. “Excessive force claims are

necessarily fact-intensive; whether the force used is excessive or unreasonable depends on the facts

and circumstances of each particular case.” Deville v. Marcantel, 567 F.3d 156, 167 (Sth Cir. 2009)

(internal marks omitted).

At the outset, the first and third factors weigh heavily in favor of Officer Coborn. The first

factor is easily met here: auto theft is a serious offense. See United States v. Coleman, 78 F.3d 154,

158-60 (5th Cir. 1996) (discussing Congress’s actions to curb auto theft). The third factor is easily

met, too: the undisputed evidence reflects that Baker (1) actively resisted arrest by ignoring the

express and repeated instructions of law enforcement, and (2) actively attempted to evade arrest

by flight using the stolen vehicle. See, e.g., Malbrough v. Stelly, 814 F. App’x. 798 (Sth Cir. 2020)

(unpublished) (holding that officers’ use of deadly force was objectively reasonable where suspect

ignored verbal commands and drove a vehicle at or close to the officers); Sanchez v. Edwards, 433

F. App’x. 272 (5th Cir. 2011) (unpublished) (same).

But the second factor is a closer call. Here, the video/audio evidence reveal that the stolen

vehicle’s brake lights were activated before Officer Coborn discharged his firearm — consistent

with Defendants’ testimony and theory of the case. Dashcam Video at 0:46-48; ECF No. 38 at 9;

ECF No. 39-1, App. 244. But the parties hotly dispute the testimonial evidence that corresponds

to the second-by-second video/audio evidence — specifically, time mark 0:46, time mark 0:47,

and time mark 0:48. Jd. ECF No. 38 at 9; ECF No. 39-1, App. 244; ECF No. 52 at 153, 159, 166,

169.

In a motion for summary judgment, all evidence must be viewed in a light most favorable

to the nonmoving party. Plaintiffs have offered evidence that, if believed, could show that Officer

Coborn discharged his firearm before Baker shifted the stolen vehicle into drive. ECF No. 52 at

159, 166, 169. A rational jury could conclude that under such circumstances Officer Coborn’s use

of deadly force was unreasonable. It does not have to find this, of course. But if it could find it,

then Plaintiffs have successfully met their burden for the first part of the qualified immunity test.

2. Clearly Established Law

Viewing the disputed evidence in the light most favorable to Plaintiffs, Officer Coborn

arguably violated Baker’s Fourth Amendment rights. But that does not defeat qualified immunity.

Plaintiffs must also demonstrate that the law was clearly established — that, as of February 21,

2018, any reasonable officer would have known that Officer Coborn’s behavior was unlawful.

Vann v. City of Southaven, 884 F.3d 307, 310 (5th Cir. 2018) (“It is the plaintiff's burden to find

a case in his favor that does not define the law at a ‘high level of generality.””) (quoting Cass □□

City of Abilene, 814 F.3d 721, 732-33 (Sth Cir. 2016)).

Graham vy. Connor clearly established that the use of force is contrary to the Fourth

Amendment if it is excessive under objective standards of reasonableness. Joseph v. Bartlett, 981

F.3d 319, 336 (Sth Cir. 2020). “But aside from ‘rare,’ ‘obvious’ cases, the allegedly violated right

cannot be defined at this level of generality to overcome a qualified-immunity defense.” Id.

Otherwise, “[i]t could plausibly be asserted that any violation of the Fourth Amendment is ‘clearly

established,’ since it is clearly established that the protections of the Fourth Amendment apply to

the actions of police.” Wilson v. Layne, 526 U.S. 603, 615 (1999). Rather, “the right allegedly

violated must be defined at the appropriate level of specificity.” Jd.

“The Supreme Court has explained that for a court to deny qualified immunity based on

‘clearly established’ law, ‘existing precedent must have placed the statutory or constitutional

question beyond debate.’” Bartlett, 981 F.3d at 337 (quoting White v. Pauly, 137 S. Ct. 548, 551

(2017)). This means existing precedent must “squarely govern[ ]” the specific facts at issue, such

that only someone who is “plainly incompetent” or who “knowingly violates the law” would have

behaved as the official did. Mullenix v. Luna, 136 S. Ct. 305, 310 (2015). Because this “specificity

is especially important in the Fourth Amendment context, the Supreme Court has stressed the need

to identify a case where an officer acting under similar circumstances . . . was held to have violated

the Fourth Amendment.” Bartlett, 981 F.3d at 337 (quoting District of Colombia v. Wesby, 138

S. Ct. 577, 590 (2018)) (internal marks omitted) (emphasis added).

The Magistrate Judge, after mistakenly finding there was fact issue of whether Officer

Coborn fired at all before the car moved, did not address whether those gunshots violated clearly

established law. Consequently, the Court ordered the parties to address that question with

supplemental briefing, specifically giving Plaintiffs an additional opportunity to identify caselaw

that would have given fair notice to Officer Coborn that his actions were unlawful. ECF No. 72.

Plaintiffs identified three Fifth Circuit cases in their briefing. ECF No. 73 at 8; Edmond v. City of

New Orleans, 20 F.3d 1170 (5th Cir. 1994) (unpublished but precedential);? Ougel v. Amite City

Police Dept., 352 F. App’x. 941 (5th Cir. 2009) (unpublished and un-precedential);? Baker v.

Putnal, 75 F.3d 190 (5th Cir. 1996). All three cases are unpersuasive.*

The first case cited by Plaintiffs is Edmond v. City of New Orleans. In that case, under the

plaintiffs’ version of the facts, plainclothes officers with their guns drawn approached a car driven

by the plaintiffs. 20 F.3d at 1170. The officers did not identify themselves. /d. The plaintiffs

believed they were being robbed and attempted to drive away. Id. To do so, the plaintiffs tried to

maneuver around the parked car of the officers who had boxed in the plaintiffs. Jd. Still without

identifying themselves, the officers fired through the window. /d. The plaintiffs were injured in

the shooting. /d.

The Fifth Circuit determined that there was a genuine dispute of material fact regarding

whether the force was excessive, explaining:

The officers justify the use of force against [plaintiffs] Edmond and Oden because

Oden drove directly at [Officer] Poole at a high rate of speed, in what appeared to

be an intentional manner. The plaintiffs contest whether Oden drove at Poole. The

plaintiffs also argue that they would not have tried to get away if the police officers

had identified themselves. Resolving whether the police had a need to use force,

and whether they used force in an objectively reasonable way, requires resolving

disputed testimony about what happened when the police stopped the plaintiffs’

car.

This case raises the kind of issue .. . about whether a police officer’s use of force

was justified or was “unreasonably created” when he stepped in front of a moving

car.

Id. (emphasis added).

2 Sth Cir. 47.5.3

3 5th Cir. 47.5.4

4 Plaintiffs also argue this case is an “obvious” one under Tennessee v. Garner, 471 U.S. 1 (1985), rendering the need

to identify factually analogous caselaw unnecessary. ECF No. 73 at 9. But Plaintiffs only devote two sentences to this

argument. Jd. “The standard for obviousness is sky high, and this case does not meet it.” Bartlett, 981 F.3d at 337.

Indeed, “the Supreme Court to date has never identified an ‘obvious’ case in the excessive force context.” Cole v.

Carson, 935 F.3d 444, 474 (5th Cir. 2019) (Ho & Oldham, JJ., dissenting) (emphasis in original).

The facts and circumstances in this case are distinguishable from Edmond because the

officers here were all wearing clothing that identified them as law enforcement. Additionally, the

officers had turned on the red and blue lights of the police SUV while pulling behind the stolen

sedan.

Furthermore, as evidenced by the dashcam video, there is no dispute that Officer Coborn

stepped in front of the car before it moved. In contrast, in Edmond, the actual location of the officer

relative to the car was in dispute. And it was additionally disputed whether the officer later stepped

in front of a moving car which “unreasonably created” the justification of use of force. Jd. These

factual differences are material to the inquiry of whether clearly established law put Officer Coborn

on fair notice that his conduct was unlawful. Cole, 935 F.3d at 474 (Ho & Oldham, JJ., dissenting)

(“{T]he Supreme Court [has] reminded lower courts that qualified immunity requires us not only

to identify a clearly established rule of law, but to do so with great specificity.”) (emphasis added).

The second case cited by Plaintiffs is Ougel v. Amite City Police Dept. In that case, the

plaintiff stole a car from a Porsche dealership and led various law enforcement officials on a high-

speed chase through Mississippi and Louisiana. Ougel, 352 F. App’x. at 942. Eventually, several

officers surrounded and stopped the vehicle. Jd. One of the deputies broke Ougel’s window, put

Ougel’s left arm in a wrist lock, and began trying to remove him from the vehicle. Id. at 943,

Another deputy, Officer Foster, moved to the passenger side window of the car. Jd. The officers

ordered Ougel to show his hands and to surrender. /d, A moment later, Officer Foster fired a fatal

5 The Fifth Circuit has stated unpublished opinions do “not constitute clearly established law for purposes of [qualified

immunity].” Cooper v. Brown, 844 F.3d 517, 528 n. 8 (Sth Cir. 2016). Plaintiffs admit this but argue Ougel “is part of

a ‘robust consensus’ that would give Coborn ‘fair warning’ that shooting at a stationary car while its occupants hands

were visible was illegal.” ECF No. 73 at 8 n. 24. To the extent Ougel is representative of a broader consensus, the

Court will analyze the factual similarities of the case.

shot from the passenger side. Jd. Forensic evidence showed that Ougel’s right arm was in the raised

position at the time of the gunshot. Jd. at 944.

Because this case was at the summary judgment stage, the Fifth Circuit evaluated the case

in the light most favorable to the plaintiff. The Court concluded “firing a shot at an unarmed

suspect whose left arm was restrained by a wrist lock and whose right arm was in the air would

constitute an objectively unreasonable exercise of excessive force because the suspect would at

that point not present a danger to the officers present.” Jd.

Even under Plaintiffs’ version of events, this case is not factually analogous to Ougel. In

Ougel, Officer Foster said the plaintiff was reaching under the seat presumably for a gun. And it

was this fear of a gun that allegedly justified his attack. But that is not the case here. First, Baker

was not partially incapacitated by an armlock thereby reducing his inherent danger to the officers.

Second, Ougel does not clearly establish Baker’s rights because Ougel does not address the danger

posed by a car which is itself a deadly weapon. Goldston v. Anderson, 775 Fed. Appx. 772, 773

(5th Cir. 2019) (“[A] vehicle can be a deadly weapon. If an officer believes he or others around

him are in danger from the vehicle, it can be reasonable to use deadly force.”). An officer who

diligently studied Ouge/ would understand not to shoot a partially restrained suspect whose hands

were visible. But that same officer would learn nothing about how to react to a situation where an

unrestrained, suspected felon ignores officers’ verbal commands, starts a car, illuminates the brake

lights, and revs the engine, all while an officer was standing six inches in front of the vehicle.

Plaintiffs’ third citation, Baker v. Putnal, 75 F.3d 190 (Sth Cir. 1996), fails for the same

reason. The Fifth Circuit recently summarized Putnal:

In [Putnal], members of the public told Officer Michael Putnal, a police officer

patrolling a crowded Galveston beach area during spring break, that “someone had

entered the crowd with a pistol-gripped shotgun.”

Minutes later, Officer Putnal heard gunfire and saw the crowd scurrying. There was

“a good deal of confusion on the beach.” Two people directed the officer to a car

in which the gunman was supposedly sitting. Putnal then saw Wendell Baker Jr.

and another man sitting in a truck parked on the beach. The parties disputed what

happened next. Putnal stated he saw Baker loading a magazine into a handgun, that

he warned Baker to freeze or drop the gun, that Baker instead turned the gun upon

Putnal, at which point Putnal fired, killing Baker. However, witnesses “state[d] that

[Baker] took no threatening action . . . as the officer approached the truck,” that

Putnal issued no warning to Baker, and that “Baker . . . may have barely had an

opportunity to see Putnal before [the officer] fired his gun.” The parties did not

dispute that Putnal had been searching for a gunman, and that a gun had been

recovered from Baker’s seat, although they disputed whether and how Baker had

been holding it, that is, whether he pointed it at Putnal.

Baker’s survivors sued the officer, bringing, inter alia, a Fourth Amendment

excessive-force claim. The district court granted Putnal qualified immunity,

crediting his account that he had fired in response to Baker turning and aiming the

gun at him. On appeal, we reversed and remanded the excessive-force claim for

trial. Recognizing the dispute as to the officer’s warning, Baker’s turn, and the

position of Baker's gun, we found “simply too many factual issues to permit the

Bakers’ § 1983 claims to be disposed of on summary judgment.” “Chaos on the

beach and Baker[‘s] mere motion to turn and face Putnal are not compelling reasons

to find that [the officer's] use of force was not excessive as a matter of law.”

Viewing the facts and drawing inferences “in the light most favorable to the

nonmoving party,” we held that “[t]he number of shots and the nature of the wounds

raise . .. more of a question of fact than a court may dispose of on summary

judgment.

Cole, 935 F.3d at 453-54.

But just like Ougel, Putnal is also not analogous to the present case. In Putnal, the plaintiff

did not ignore verbal commands. There was no concern about the truck itself being used as a

weapon. There was no officer located in front of the vehicle. And there was no indication that the

plaintiff intended to try and flee in the truck.

In essence, Plaintiffs’ arguments and case citations repeatedly focus purely on the factual

question of where Baker’s hands were at the time Officer Coborn opened fire. But Officer Coborn

did not fire just because Baker was allegedly reaching below the dash for a gun. Officer Coborn

also feared being run over by the stolen Infiniti. Neither Ouge/ or Putnal address the facts present

in this case—namely, the danger of a running car, a fleeing felon, and an officer positioned directly

in front of the vehicle. Accordingly, Plaintiffs have failed to establish that Officer Coborn’s action

violated clearly established law and thus Officer Coborn is entitled to qualified immunity.

C. Officers Coborn and McHugh’s gunshots after the vehicle began moving were

objectively reasonable.

The Court will now address the gunshots from both Officers Coborn and McHugh that all

occurred after Baker undisputedly shifted the car into gear, turned the wheel to the left, and stepped

on the gas pedal. The Magistrate Judge determined “[a]lthough the officers may have been justified

in shooting at Baker when he started his car and the car moved forward as Baker steered it to his

left, the Court concludes that no reasonable law enforcement officer would continue to shoot into

the center of the trunk of the car, in the rear window, and in the center console of the middle of the

back seat as Baker was driving away from him.” ECF No. 65 at 17. For the following reasons, the

Court disagrees and therefore REJECTS IN PART the findings and conclusions of the Magistrate

Judge.

The same Graham factors regarding clearly unreasonable excessive force explained in

Part B govern the analysis here as well. Additionally, the Fifth Circuit has previously addressed

similar questions in police shootings where suspects were attempting to flee in automobiles.

Hathaway, 507 F.3d. at 321; Malbrough vy. Stelly, 814 F. App’x. 798 (Sth Cir. 2020) (unpublished);

Sanchez y. Edwards, 433 F. App’x. 272 (5th Cir. 2011) (unpublished). The Fifth Circuit has

identified two factors that are particularly relevant in determining whether the use of force was

reasonable: (1) the amount of time the officers had to respond to the vehicle, and (2) the officers’

proximity to the vehicle’s path. Hathaway, 507 F.3d at 321. The Fifth Circuit has also suggested

that an officer may act unreasonably in firing at a fleeing vehicle “after the perception of new

information indicating the threat was past.” Jd. at 322.

In this case, the summary judgment evidence shows that the officers’ use of deadly force

was objectively reasonable. The officers had reason to suspect that Baker’s actions posed a threat

of serious physical harm to Officer Coborn, who was standing in front of Baker’s vehicle.

Hathaway is particularly instructive on this matter. In that case, the officer was standing eight to

ten feet in front of a car. Jd. at 316. The car suddenly accelerated toward him, zigzagging as he

tried to get out of the way and ultimately striking him on the leg. Jd. The officer fired his sidearm

killing the driver but could not remember whether he did so before, during, or immediately after

the vehicle struck him. Jd These events unfolded “in the snap of a finger.” Jd. The Court

determined that the officer’s actions were objectively reasonable, particularly given his proximity

to the car and the short time frame. Jd. at 322.

Considering the Fifth Circuit's reasoning in Hathaway, the officers’ actions in this case

were reasonable. First, the officers had less than a second to respond to Baker’s acceleration.

Second, Officer Coborn was directly in front of the car when it started to move. In the dashcam

video, Officer Coborn appears to take several hurried, stumbling steps backwards to avoid being

hit. Dashcam video at 0:47-51.°

Plaintiffs stress the wheels of the car were turned to the left away from Officer Coborn

while the car was accelerating. But “it’s not relevant, whether, in hindsight, [the officer] was ever

in real danger. We must ask whether it would have appeared to a reasonable officer on the scene

that [an officer was] in danger.” Malbrough, 814 F. App’x at 805 (emphasis in original). When

© This is contrary to the Magistrate Judge’s determination. It is difficult to see because the stolen car blocks the view

of Officer Coborn, but he backs away from the car when it moves. This is evident if one watches the top of Officer

Coborn’s head as the car moves and one can observe that his weight has shifted backwards as he pivots after the car.

Baker started accelerating, there was no way for the officers to know whether he would drive away

from Officer Coborn or swerve into him, as the driver did in Hathaway. Because of Officer

Coborn’s proximity to the path of the car and the extremely limited time the officers had to respond

to the events that unfolded, the officers’ actions were reasonable. Hathaway, 507 F.3d at 322

(“Given the extremely brief period of time an officer has to react to a perceived threat like this

one, it is reasonable to do so with deadly force. It is this brevity, and the coordinate rapid response

that it demanded from [the officer], that is the distinguishing factor in this case.”) (citation

omitted).

Plaintiffs and the Magistrate Judge both maintain the final shots fired by the officers were

unreasonable because the officers fired them after Officer Coborn was clearly safe. Plaintiffs cite

Lytle v. Bexar County as support for its argument. 560 F.3d 404 (Sth Cir. 2009). But Lytle is easily

distinguishable. In that case, the Fifth Circuit held that a police officer was not entitled to qualified

immunity when the officer fired shots through the rear window of a vehicle driven by a fleeing

suspect. Jd. at 417. The Fifth Circuit distinguished Lyile from Hathaway because the plaintiffs

evidence in Lytle showed that the officer did not fire until the fleeing vehicle was three or four

houses away. Jd, at 412. And it was possible that “ten seconds, perhaps even more” had elapsed

since the vehicle had passed the officer. Jd at 414. The Fifth Circuit thus concluded that “sufficient

time might have passed for [the officer] to perceive that the threat to him had ceased.” Id.

In contrast, in Hathaway, the Fifth Circuit determined the time between the vehicular

assault and the gunshot “was insufficient for the officer to perceive ‘new information indicating

the threat was past.’” Jd. (quoting Hathaway, 507 F.3d at 322). This case is far closer to Hathaway

than it is to Lytle. Here, the officers stopped firing less than a mere two seconds after the car passed

Officer Coborn. Dashcam video at 0:47-50.

Plaintiffs essentially asks the Court to examine the video, frame by frame, to determine

when Officer Coborn was plainly free from danger and where in relation to the car the officers

were when they fired their last shots. Seen in real time, it is undisputable that in the few seconds

between when the officers began firing and when they stopped, they did not have time to process

any new information suggesting that Officer Coborn was out of danger. Once the officers

perceived the car had safely passed Officer Coborn, they ceased firing and began to pursue Baker

on foot. This time frame differentiates this case from cases like Lytle in which the officer began

firing well after a fleeing suspect’s vehicle had passed him by. See also Sanchez, 433 F. App’x at

275 (“Because of the short period of time in which the officers had to react to Sanchez’s abrupt

change of direction and Banquer’s obvious peril given his position in front of the vehicle, we have

absolutely no trouble finding that the officer’s decision to use deadly force was reasonable under

the circumstances.”) (emphasis added).

It is both tragic and unfortunate that Baker was killed in the altercation with the officers.

But taking Plaintiffs’ approach would violate the Supreme Court’s command that “the calculus of

‘reasonableness must embody allowance for the fact that police officers are often forced to make

split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about

the amount of force that is necessary in a particular situation.’” Cole, 935 F.3d at 462 (Jones, J.,

dissenting) (quoting Graham, 490 U.S. at 396-97). Courts cannot allow the “theoretical, sanitized

world of our imagination to replace the dangerous and complex world that policemen face every

day.” Stroik v. Ponseti, 35 F.3d 155, 158 (5th Cir. 1994) (quoting Smith v. Freland, 954 F.2d 343,

347 (6th Cir. 1992)). That the officers’ decision may now be “subject to second-guessing — even

legitimate second-guessing — does not make [their] actions objectively unreasonable given the

particular circumstances of the shooting.” Hathaway, 507 F.3d at 322. Because the officers here

reasonably believed that Baker posed an immediate threat to officers, the officers did not use

excessive force in violation of the Fourth Amendment. Accordingly, the officers are both entitled

to qualified immunity.

D. Municipal Liability

Plaintiffs also brought a Section 1983 claim against the City of Stratford for failure to train

its employees and for instituting unconstitutional practices, policies, and customs. The Magistrate

Judge determined that “Plaintiffs have not met their burden of raising a fact issue on whether (1)

an official policy or custom, of which (2) a policymaker had actual or constructive knowledge, and

(3) a constitutional violation whose moving force is that policy or custom, the City is entitled to

summary judgment on the Plaintiffs’ claims against it.” ECF No. 65 at 22. Accordingly, the

Magistrate Judge recommends that Defendants’ motion for summary judgment on the claims

against the City be granted. Plaintiffs did not file an objection this recommendation.

After making an independent review of the pleadings, files, and records in this case and

the findings, conclusions, and recommendation of the Magistrate Judge, the Court concludes that

the findings and conclusions relating to the City of Stratford are correct. It is therefore ORDERED

that the findings, conclusions, and recommendation of the Magistrate Judge are ADOPTED IN

PART. The Court GRANTS Defendants’ motion. All claims against the City are DISMISSED.

CONCLUSION

Plaintiffs have failed to overcome Defendants’ qualified immunity or establish Monell

liability. Accordingly, Defendants’ Motion (ECF No. 37) is GRANTED IN ITS ENTIRETY. All

of Plaintiffs’ claims are DISMISSED. Because summary judgment fully disposes of this case,

Defendants’ motion to exclude testimony (ECF No. 44) is DENIED as moot.

SO ORDERED.

March □□ , 2021. MATAHEW J. KRACSMARYK

UNITED STATES DISTRICT JUDGE