Henriquez v. Farmers Branch Texas

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ANA HENRIQUEZ, §

§

Plaintiff, §

§

V. § No. 3:16-cv-868-M-BN

§

CITY OF FARMERS BRANCH, TEXAS §

and KEN D. JOHNSON, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

This case, reopened on September 30, 2021, see Dkt. Nos. 43, 46, remains

referred to the undersigned United States magistrate judge for pretrial management

under 28 U.S.C. § 636(b) and a standing order of reference from Chief Judge Barbara

M. G. Lynn.

Through a first amended complaint [Dkt. No. 47] (the FAC), Plaintiff Ana

Henriquez asserts civil rights violations and assault and battery against Defendants

City of Farmers Branch, Texas and Officer Ken Johnson based on Johnson’s shooting

to death her minor son, J.C.

Johnson responded to the FAC by simultaneously answering it, asserting

qualified immunity, see Dkt. No. 50, and moving to dismiss it based, in part, on

qualified immunity, see Dkt. Nos. 48, 49, 50. Under Federal Rule of Civil Procedure

12(d), the Court converted the portion of Johnson’s motion to dismiss based on

qualified immunity to a Federal Rule of Civil Procedure 56 motion for summary

judgment on qualified immunity. See Dkt. No. 51.

As further allowed by the Court’s conversion order, Henriquez filed a motion

for leave to conduct limited discovery in order to respond to the qualified immunity

issues raised in the converted summary judgment motion, see Dkt. No. 54, and

Johnson filed a response, see Dkt. No. 55.

For the following reasons, the Court GRANTS IN PART Henriquez’s motion

for leave to the extent explained below.

Legal Standards

“Because qualified immunity is an immunity from suit, not merely a defense to

liability, ‘it is effectively lost if a case is erroneously permitted to go to trial.’” Ramirez

v. Guadarrama, 3 F.4th 129, 134 (5th Cir. 2021) (per curiam) (quoting Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985)). The established procedure under which courts

must address qualified immunity, once asserted, therefore “prevents a defendant

entitled to immunity from being compelled to bear the costs of discovery and other

pre-trial burdens.” Id. (citations omitted). Consequently, all discovery is typically

stayed pending a ruling on a defendant’s entitlement to qualified immunity. See

Wicks v. Miss. State Employment Servs., Inc., 41 F.3d 991, 994-95 (5th Cir. 1995);

accord Zapata v. Melson, 750 F.3d 481 (5th Cir. 2014); Backe v. LeBlanc, 691 F.3d

645 (5th Cir. 2012); Lion Boulos v. Wilson, 834 F.2d 504 (5th Cir. 1987); Webb v.

Livingston, 618 F. App’x 201 (5th Cir. 2015) (per curiam).

But, where a defendant asserts qualified immunity, the Court may, under

certain circumstances, permit limited discovery that is narrowly tailored to uncover

only facts that the Court needs to rule on the defendant’s entitlement to qualified

immunity. See Wicks, 41 F.3d at 994; Backe, 691 F.3d at 648 (“[T]his court has

established a careful procedure under which a district court may defer its qualified

immunity ruling if further factual development is necessary to ascertain the

availability of that defense.”).

Fundamental to this careful procedure is that, once qualified immunity is

asserted in good faith, “the burden is on the plaintiff to demonstrate [its]

inapplicability.” McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en

banc); see also Joseph v. Bartlett, 981 F.3d 319, 329-30 (5th Cir. 2020) (“When a public

official makes ‘a good-faith assertion of qualified immunity,’ that ‘alters the usual

summary-judgment burden of proof, shifting it to the plaintiff to show that the

defense is not available.’” (quoting Orr v. Copeland, 844 F.3d 484, 490 (5th Cir.

2016))).

Zapata articulates the steps a district court must take in an order

authorizing limited qualified immunity discovery – to avoid entering an

order that would deny the defendant the benefits of the defense. The

first step of this procedure requires the Court to find that the complaint

alleges facts sufficient to overcome qualified immunity. At the second

step, the Court must “identify any questions of fact it need[s] to resolve

before it would be able to determine whether the defendants [are]

entitled to qualified immunity.” And the third step requires an

examination of the specific discovery requests.

Roe v. Johnson Cnty., Tex., No. 3:18-cv-2497-B-BN, 2021 WL 321967, at *2 (N.D. Tex.

Feb. 1, 2021) (quoting Zapata, 750 F.3d at 485; citation omitted).

Put another way, at the first step, “a plaintiff seeking to overcome QI must

assert facts that, if true, would overcome that defense. It is not enough broadly to

seek information that might impeach the defendants’ version of events.” Hutcheson

v. Dall. Cnty., Tex., 994 F.3d 477, 481 (5th Cir. 2021) (citing Zapata, 750 F.3d at 481).

So, at step one, the plaintiff must convince the Court that the pleadings, “taken as

true, overc[o]me the qualified immunity defense” because, before authorizing limited

discovery, “this holding must be made explicitly” by the district court. Zanitz v. Seal,

602 F. App’x 154, 163 (5th Cir. 2015) (per curiam) (citing Zapata, 750 F.3d at 485

n.2). Accordingly, the functional equivalent of carrying the step-one burden would be

for a plaintiff’s pleadings to demonstrate that a motion to dismiss based on qualified

immunity should be denied. See id. at 163 n.8.

But, even if the Court holds that sufficient facts have been alleged, a plaintiff

will still falter at step two by “fail[ing] to identify any question of fact that the court

must resolve before determining QI.” Hutcheson, 994 F.3d at 481 (citing Backe, 691

F.3d at 648); see also Zanitz, 602 F. App’x at 163 (“Even a ‘limited discovery’ order

does not satisfy the second step if ‘the district court [does] not identify any questions

of fact it need[s] to resolve before it would be able to determine whether the

defendants [are] entitled to immunity.’” (citing Zapata, 750 F.3d at 484-85)).

Only after a plaintiff passes through these two gates will the Court examine

the specific discovery requests proposed to determine if any are narrowly tailored.

See, e.g., Webb, 618 F. App’x at 209-11.1

1 Cf id. at 210 (Contrary to the general rule, “’immediate appeal is available

for [qualified immunity] discovery orders which are either avoidable or overly

broad.’ [But a] district court’s discovery order is neither avoidable nor overly broad,

and therefore not immediately appealable, when: (1) the defendant’s entitlement to

immunity turns at least partially on a factual question; (2) the district court is

unable to rule on the immunity defense without clarification of these facts; and (3)

Analysis

As explained above, while the Court is now considering Johnson’s assertion of

qualified immunity through a motion for summary judgment, he initially moved to

dismiss on this ground, explaining that

Plaintiff fails to factually support her conclusory claim that decedent

presented no threat to Defendant at the time of the shooting. This fails

to respond to the qualified immunity pleading of Defendant that furtive

movements of decedent within the vehicle caused Defendant to

reasonably believe that decedent “presented an immediate threat of

serious injury” to Defendant. It is established in this Circuit that when

a suspect reaches for an unseen area in a manner consistent with

reaching for a weapon, use of deadly force is reasonable. Thus, a

reasonable basis existed to support the alleged use of force by

Defendant.

Dkt. No. 49, ¶ 6 (further asserting that “this issue need not be addressed due to the

failure to adequately plead the essential element of ‘color of law’” (footnotes omitted)).

Henriquez does indeed allege that her son “never posed any threat of harm to

Johnson or any other person that would have justified Johnson’s use of deadly force.”

Dkt. No. 47, ¶ 39. Insofar as this allegation is, in isolation, conclusory, Henriquez’s

complaint is not. And, solely for the purpose of advancing this matter to a limited

discovery phase, the facts alleged, taken as true, do overcome Johnson’s right to

qualified immunity:

On March 13, 2016, at approximately 7:00 p.m., 16-year-old J.C.

and his friend E.R. were sitting in J.C.’s red Dodge Challenger outside

of the Brookhaven Apartments in Addison, Texas.

Defendant Johnson, who was allegedly not on call as a Farmers

the discovery order is narrowly tailored to uncover only the facts necessary to rule

on the immunity defense.” (quoting Gaines v. Davis, 928 F.2d 705, 707 (5th Cir.

1991), then citing Lion Boulos, 834 F.2d at 507-08)).

Branch police officer at the time of this incident, allegedly witnessed

E.R. taking seats out of Johnson’s SUV.

J.C. never exited his vehicle and at no time was involved in

allegedly taking Johnson’s seats out of the SUV.

J.C. eventually began to exit the Brookhaven Apartment complex

by driving out of the parking lot and back onto the main road.

Johnson, who allegedly believed a burglary of his vehicle had just

occurred, grabbed his car keys and his Farmers Branch-issued service

weapon and ran to his vehicle to give chase to J.C. and E.R.

Johnson suspected J.C.’s vehicle was involved in a burglary

because of alleged calls spanning several months of a red Dodge

Challenger that had been involved in burglaries.

Johnson, seeing two young Latino boys in the red Challenger,

immediately believed them to be suspects and initiated chase.

Unbeknownst to J.C. or E.R., they were being followed by

Johnson’s SUV.

Immediately upon noticing Johnson’s SUV tailing his vehicle

closely, J.C.’s vehicle was violently rear-ended by Johnson’s SUV.

J.C. continued to drive straight after being rear-ended, looking for

a location to safely pull over.

Before being able to take any further action, J.C.’s vehicle was

again rear-ended, this time even more aggressively than the first, which

caused J.C.’s vehicle to spin out across an intersection and slam into a

sidewalk, nearly flipping J.C.’s vehicle over.

Simultaneous to J.C.’s vehicle crashing into the curb, Johnson

drove his SUV closely behind J.C.’s vehicle and maneuvered his SUV

into the curb, nearly striking a bystander vehicle in the process.

After the crash, J.C. and E.R. remained in the vehicle and were

prepared to wait for police to arrive given that the car collision had been

severe.

Immediately after causing the collision with J.C.’s vehicle and

maneuvering his own SUV into the curb behind J.C., Johnson exited his

SUV and shouted “woo-hoo” before brandishing his service weapon and

running towards J.C.’s vehicle.

As Johnson approached J.C.’s vehicle he shouted police

commands, such as, “Police, police, hands, let me see your hands, let me

see your hands.”

Merely seconds after the collision, J.C. noticed Johnson

approaching his vehicle with his weapon aimed at him. J.C. turned to

E.R. and screamed, “Edgar, Edgar!” Before E.R. could reply, a barrage

of bullets was shot into the vehicle by Johnson, aimed directly at J.C.

On information and belief, Johnson began to fire his service

weapon, a semiautomatic pistol, as he was still nearing J.C.’s vehicle on

foot and shouting police commands.

Johnson trained his weapon directly at J.C. and fired multiple

rounds without stopping. After shooting J.C. in the head, back and

stomach, Johnson opened the driver-side door and continued to fire his

service weapon, this time directly at E.R.

Johnson fired his weapon for several seconds until his clip was

fully emptied.

Id., ¶¶ 14-32; see also id., ¶ 38 (“Johnson fired a total of 16 times into the vehicle,

killing J.C. and severely wounding E.R.”).

And, again, solely for the purpose of advancing this matter to a limited

discovery phase, Henriquez’s pleadings show that Johnson acted under color of law.

Qualified immunity may be asserted in response to a claim under 42 U.S.C. §

1983. See Rich v. Palko, 920 F.3d 288, 294 (5th Cir. 2019) (citing Haverda v. Hays

Cnty., 723 F.3d 586, 598 (5th Cir. 2013)). But “[a] plaintiff makes out a § 1983 claim

[only] if he ‘shows a violation of the Constitution or of federal law, and then shows

that the violation was committed by someone acting under color of state law.’” Id.

(cleaned up; quoting Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008)).

“The traditional definition of acting under color of state law

requires that the defendant in a § 1983 action have exercised power

‘possessed by virtue of state law and made possible only because the

wrongdoer is clothed with the authority of state law.’” West v. Atkins,

487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299,

326 (1941)). More simply, “[u]nder ‘color’ of law means under ‘pretense’

of law.” Screws v. United States, 325 U.S. 91, 111 (1945). Generally, if

an officer is performing their official duties, their acts “are included

whether they hew to the line of their authority or overstep it,” though

“acts of officers in the ambit of their personal pursuits are plainly

excluded.” Id. That said, even if an officer acts for purely personal

reasons, he or she may still act under color of law if they are “acting by

virtue of state authority.” United States v. Tarpley, 945 F.2d 806, 809

(5th Cir. 1991).

[Further,] it is “clear that whether a police officer is acting under

color of law does not depend on duty status at the time of the alleged

violation.” Id. Rather, to determine whether an officer acted under color

of law, we must consider: (1) “whether the officer misused or abused his

official power” and (2) “if there is a nexus between the victim, the

improper conduct, and the officer’s performance of official duties.”

Bustos v. Martini Club, Inc., 599 F.3d 458, 464-65 (5th Cir. 2010)

(cleaned up).

Gomez v. Galman, ___ F.4th ____, No. 20-30508, 2021 WL 5371112, at *2-*3 (5th Cir.

Nov. 18, 2021) (per curiam) (citation modified); see also Tarpley, 945 F.3d at 809

(“This court and other courts of appeals have made clear that whether a police officer

is acting under color of law does not depend on duty status at the time of the alleged

violation. Nor does Screws mean that if officials act for purely personal reasons, they

necessarily fail to act ‘under color of law.’ Rather, Screws held simply that individuals

pursuing private aims and not acting by virtue of state authority are not acting under

color of law purely because they are state officers.” (citations omitted)); Laughlin v.

Olszewski, 102 F.3d 190, 192 n.1 (5th Cir. 1996) (in concluding that an off-duty

Houston police office hired by a private entity to provide security acted under color of

law, observing that, “under Texas law, a police officer’s ‘off-duty’ status is not a

limitation upon the discharge of police authority in the presence of criminal activity”

(citations omitted)).

Here, it is alleged that, “[a]s Johnson approached J.C.’s vehicle he shouted

police commands, such as, ‘Police, police, hands, let me see your hands, let me see

your hands.’” Dkt. No. 47, ¶ 28. These allegations, taken as true, “demonstrate an ‘air

of authority’” adequate to show a Section 1983 violation for the limited purpose of the

discovery matter now before the Court. Gomez, 2021 WL 5371112, at *4 (“Gomez has

alleged facts that demonstrate an ‘air of authority’ not present in Bustos. Unlike

Gomez, Bustos did not allege that the off-duty officers gave him orders.”). Cf. id. (“Our

holding does not disturb well-established case law that ‘acts of officers in the ambit

of their personal pursuits are plainly’ not under color of law. We merely hold that,

viewed in the light most favorable to Gomez, he has pleaded sufficient facts at this

early stage of litigation to suggest that Galman and Sutton were ‘acting by virtue of

state authority.’ His allegations are sufficient to allow this matter to proceed to

discovery, where additional fact-finding may support – or vitiate – Gomez’s claims.”

(citations omitted)).

Proceeding to step two, the narrative assertion of qualified immunity in

Johnson’s answer provides in part that, during his pursuit of J.C. and E.R.,

[a]s the vehicles continued south on Marsh Lane and approached the

intersection with Spring Valley Road, the Dodge quickly decelerated as

if it were going to make a left turn. This caught Johnson off guard

causing inadvertent contact between the vehicles. Both vehicles then

came to a stop in the intersection. Johnson quickly exited his vehicle and

approached the Dodge believing that he was yelling loudly “Police. Show

me your hands.” Johnson believed that this command was issued several

times. Johnson initially observed the driver of the Dodge to have his

hands on the steering wheel and, as Johnson approached the Dodge, the

driver quickly removed his hands from the steering wheel and reached

into an area low and between the two front seats. The area where the

driver was reaching was not within Johnson’s view. In Johnson’s

experience, this movement was consistent with a fleeing felon (a

burglar) reaching for a weapon in a middle console area of the vehicle.

Thus, Johnson reasonably feared that the driver presented an

immediate threat of serious injury to Johnson. Johnson repeated his

verbal command and the driver continued to reach to the area between

the seats out of Johnson’s view. Johnson then fired his weapon at the

driver.

Dkt. No. 50, ¶ 49.

The applicable pleadings therefore present disputed facts. And, as Henriquez

recognizes in her motion for leave, Johnson’s version supports his argument for

dismissal based on qualified immunity: “Johnson has alleged in his Motion to Dismiss

that ‘furtive movements of decedent within the vehicle caused Defendant to

reasonably believe that decedent presented an immediate threat of serious injury to

Defendant.’ (Dkt. 49 ¶ 6). Plaintiff’s interrogatories seek answers regarding Johnson’s

assertion and are directly tied to his assertion of the qualified immunity defense.”

Dkt. No. 54, ¶ 9.

So both sides recognize that these disputed facts – as to what Johnson

perceived the moments before he opened fire – are material to the assertion of

qualified immunity.

Indeed, “[i]n this circuit ‘the excessive force inquiry is confined to whether the

officer was in danger at the moment of the threat that resulted in the officer’s

shooting. Therefore, any of the officers’ actions leading up to the shooting are not

relevant.’” Shepherd v. City of Shreveport, 920 F.3d 278, 283 (5th Cir. 2019) (quoting

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

And “[u]se of deadly force is not unreasonable when an officer would have

reason to believe that the suspect poses a threat of serious harm to the officer or

others.” Id. (quoting Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003)); see

also Reyes v. Bridgewater, 362 F. App’x 403, 406 (5th Cir. 2010) (“Unlike some areas

of constitutional law, the question of when deadly force is appropriate – and the

concomitant conclusion that deadly force is or is not excessive is well-established....

[T]he focus of the inquiry is ‘the act that led [the officer] to discharge his weapon.’”

(citing Tennessee v. Garner, 471 U.S. 1, 11-12 (1985), then quoting Manis v. Lawson,

585 F.3d 839, 845 (5th Cir. 2009))).

The Court therefore requires evidence regarding this material question of fact

before it can resolve whether Johnson is entitled to summary judgment – and the

attendant claims should be dismissed – based on qualified immunity. Cf. Reyes, 362

F. App’x at 409 (“The cases on deadly force are clear: an officer cannot use deadly

force without an immediate serious threat to himself or others. Here, the facts are

unclear; was there such an immediate threat? [Defendant’s] version of the facts would

say ‘yes,’ while [Plaintiffs’] versions would say ‘no.’ The case presented here is ... one

where the facts are not clearly established. As such, summary judgment [is]

improper.”).

Henriquez has now passed through the first and second gates. But, for the

reasons explained at step two, not all the discovery that she seeks from Johnson is

narrowly tailored to the question of fact that the Court must resolve. The Court has

therefore carefully considered the discovery proposed in Dkt. No. 54-1 and will only

compel responses to interrogatories and requests for production narrowly tailored to

what Johnson observed the moments prior to his use of deadly force. That is, what

“led [him] to discharge his weapon.” Manis, 585 F.3d at 845.

Conclusion

The Court GRANTS Plaintiff’s Motion for Leave to Conduct Limited Discovery

in Response to Ken Johnson’s Motion for Summary Judgment [Dkt. No. 54] IN PART.

The Court ORDERS Johnson to respond to Interrogatories Nos. 5, 6, 8, 9, and 10 and

Requests for Production No. 1 in Dkt. No. 54-1 by January 10, 2022. And, as these

discovery responses need not be filed with the Court, the Court further ORDERS

Henriquez to notify the Court when Johnson’s responses are received.

SO ORDERED.

DATED: December 8, 2021

DAVID L. HORAN

UNITED STATES MAGISTRATE JUDGE

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