# Henriquez v. Farmers Branch Texas

> District Court, N.D. Texas · December 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10450929

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** December 8, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

-12-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10450929. Public record. Not legal advice.