Ramirez v. Killian

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

RUBICELA RAMIREZ, et al., §

§

Plaintiffs, §

§

§ 2:18-CV-107-Z-BR

§

JAMES KILLIAN, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiffs Rubicela Ramirez’s and Francisco Gonzales’s (“Plaintiffs”)

Motion for Reconsideration (“Motion”) (ECF No. 161) of the Court’s Opinion and Order

(ECF No. 159) granting Defendant James Killian’s (“Defendant”) Renewed Motion for Judgment

as a Matter of Law (ECF No. 141).! Plaintiffs ask the Court to reconsider its August 12, 2022

Opinion and Order granting judgment as a matter of law for Defendant and to amend the

corresponding Judgment (ECF No. 160) under Federal Rule of Civil Procedure 59(e). See ECF

No. 161 at 1. Having considered the Motion and applicable law, the Court DENIES the Motion

and ORDERS Plaintiffs’ counsel to comply with the requirements set forth below.”

BACKGROUND

On August 12, 2022, the Court granted Defendant’s Renewed Motion for Judgment as a

Matter of Law. See generally ECF No. 159. Plaintiffs challenge the Court’s ruling on three

grounds. First, Plaintiffs claim the Court contradicts itself regarding qualified immunity, alleging

' Plaintiffs’ counsel bring this Motion on behalf of “Plaintiffs” Rubicela Ramirez and Francisco Gonzales. ECF

No. 161 at 1. Plaintiffs’ counsel note — however — “Mr. Ramirez [sic] has passed away.” /d. at 1 n.1. “Mr. Ramirez’s

[sic] wife, Plaintiff Rubicela Gonzales [sic], is determining whether the opening of an estate is necessary.” /d.

The Court will refer to “Plaintiffs” Ramirez and Gonzales together, as Plaintiffs’ counsel have chosen to do.

2 Although Defendant filed a Response to Plaintiffs’ Motion, Plaintiffs appear to have chosen not to reply to

Defendant’s Response. See ECF Nos. 161, 167.

the Court held Defendant’s qualified-immunity defense unavailable at trial but permitted the

defense to go forward at trial. See ECF No. 161 at 1-4. Second, Plaintiffs assert they presented

“abundant” evidence that “no reasonable officer” in Defendant Killian’s position would have shot

Plaintiffs’ pit bull. See id. at 4-6. And third, Plaintiffs argue “qualified immunity is not available

for knowing, malicious, or bad faith conduct or to the plainly incompetent.” See id. at 6. Plaintiffs

are wrong on all three grounds.

LEGAL STANDARD

Federal Rule of Civil Procedure 50 governs motions for judgment as a matter of law.

See FED. R. Civ. P. 50; Weisgram v. Marley Co., 528 U.S. 440, 448-49 (2000). A motion for

judgment as a matter of law “challenges the legal sufficiency of the evidence to support the

verdict.” Hodges v. Mack Trucks, Inc., 474 F.3d 188, 195 (5th Cir. 2006). A court may render

judgment as a matter of law at the close of trial “[i]fa party has been fully heard on an issue during

a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary

basis to find for the party on that issue.” James v. Harris County, 577 F.3d 612, 617 (Sth Cir. 2009)

(quoting FED. R. Civ. P. 50(a)) (alteration in original); see also Weisgram, 528 U.S. at 448 (Rule

50 “allows the trial court to remove cases or issues from the jury’s consideration ‘when the facts

are sufficiently clear that the law requires a particular result.’” (quoting 9A CHARLES ALAN

WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2521 (2d ed. 1995))).

A court should “uphold a jury verdict unless the facts and inferences point so strongly and

so overwhelmingly in favor of one party that reasonable [jurors] could not arrive at any verdict to

the contrary.” Goodner v. Hyundai Motor Co., 650 F.3d 1034, 1039 (Sth Cir. 2011) (quoting

Cousin v, Trans Union Corp., 246 F.3d 359, 366 (Sth Cir. 2001) (alteration in original)). “In other

words, the ‘jury verdict must be upheld unless there is no legally sufficient evidentiary basis for a

reasonable jury to find as the jury did.’” /d. at 1039-40 (quoting Foradori v. Harris, 523 F.3d 477,

495 (Sth Cir. 2008)). When considering a Rule 50 motion, “the court must draw all reasonable

inferences in favor of the nonmoving party, and it may not make credibility determinations or

weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences from the facts are jury

functions, not those of a judge... .”). Accordingly, “although the court should review the record

as a whole, it must disregard all evidence favorable to the moving party that the jury is not required

to believe.” Reeves, 530 U.S. at 151.

Rule 59(e) permits a court “to alter or amend a judgment.” Altering or amending a

judgment is an extraordinary remedy, and the standard under Rule 59(e) favors “denial of motions

to alter or amend a judgment.” S. Constructors Grp., Inc. v. Dynalectric Co., 2 F.3d 606, 611 (Sth

Cir. 1993). “Accordingly, relief pursuant to that rule should only be granted where the moving

party has presented substantial reasons for reconsideration.” Arlington Apartment Investors, LLC

v. Allied World Assurance Co. (U.S.), No. 4:12-CV-061-Y, 2014 WL 12580459, at *1 (N.D. Tex.

Sept. 11, 2014). A party should not use a Rule 59(e) motion to relitigate prior matters that should

have been urged earlier. Schiller v. Phys. Res. Grp., Inc., 342 F.3d 563, 567 (Sth Cir. 2003).

Three grounds exist for altering or amending a judgment, including to: (1) “accommodate

an intervening change in controlling law”; (2) “account for newly discovered evidence;” and

(3) “correct a clear error of law or prevent manifest injustice.” Arlington Apartment Investors,

2014 WL 12580459, at *1; see also Schiller, 342 F.3d at 567.

ANALYSIS

The Court addresses Plaintiffs’ three arguments in two parts. Because Plaintiffs’ first and

third arguments relate to Defendant’s validly invoked qualified-immunity defense, the Court

addresses those arguments together. The Court then addresses Plaintiffs’ argument against their

evidentiary failings. Last, the Court addresses Plaintiffs’ attorneys’ need to argue against the

Court’s acknowledgment of their inability to appropriately litigate this dispute and attorneys’

attempts to justify their imprudent conduct.

A. Defendant’s Qualified-Immunity Defense Remained at Issue During Trial

Plaintiffs argue the Court ruled on Defendant’s qualified-immunity defense at the

summary-judgment stage and, therefore, qualified immunity was not at issue during trial. See ECF

No. 161 at 2 (“While the Court stated in ECF 159 that it did not rule on Qualified Immunity in

ECF 60, the language of ECF 60 belies that position. ... The Court’s summary judgment Order

further establishes that qualified immunity is unavailable based solely on the video.”). In the same

paragraph, however, Plaintiffs argue: “It is not that the Court ruled that Deputy Killian was not

entitled to qualified immunity, rather, it ruled that a jury would have to determine whether or not

[the pit bull] was aggressive towards Defendant Killian.” Jd. While attempting to criticize the

Court for contradicting itself, Plaintiffs, in fact, contradict themselves.

1. Plaintiffs misstate the Court’s ruling.

“The doctrine of qualified immunity protects government officials from civil damages

liability when their actions could reasonably have been believed to be legal.” Morgan v. Swanson,

659 F.3d 359, 370 (Sth Cir. 2011). Qualified immunity shields “all but the plainly incompetent or

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

not deny immunity unless “existing precedent... placed the statutory or constitutional question

beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). A plaintiff seeking to overcome

qualified immunity must show: (1) “the official violated a statutory or constitutional right”; and

(2) “that right was ‘clearly established’ at the time of the challenged conduct.” /d. at 735.

The Magistrate Judge addressed qualified immunity in her Findings, Conclusions, and

Recommendation (“FCR”). The Magistrate Judge analyzed whether Defendant “seized” Plaintiffs’

pit bull and whether qualified immunity protected Defendant. ECF No. 50 at 24-27.

Although Defendant argued he “perceived[]an aggressive attack” from the pit bull, the

Magistrate Judge determined “a reasonable jury could reach a contrary conclusion.” Jd. at 25.

Analyzing “the totality of the circumstances with which Deputy Killian was presented,”

the Magistrate Judge concluded “a genuine material fact dispute as to whether the Pit Bull

objectively posed a threat to Deputy Killian that justified his firing a first, second, and third shot

into it” existed. Jd. at 26, 27 (“Where, as here, the law frequently distinguishes between small

details in determining whether the shooting of a dog is justified in a particular circumstance, the

Court finds a fact question is created in a close call such as this case.””). The Magistrate Judge thus

recommended the Court deny summary judgment on Plaintiffs’ unreasonable-seizure claims.

Id. at 27.

The Court found “[t]he Magistrate Judge’s analysis correctly draws attention to the

contradiction between th[e] video evidence and Deputy Killian’s affidavit stating that the Pit Bull

moved toward him in ‘an aggressive attack.”” ECF No. 60 at 2-3 (quoting ECF No. 50 at 25).

Because “the video evidence does not reflect the ‘aggressive behavior’ deemed sufficient to

necessitate lethal force in scenarios,” the Court agreed “with the Magistrate Judge’s findings and

conclusions as to the Pit Bull.” /d. at 3. That is, there existed “a genuine material fact dispute as to

whether the Pit Bull objectively posed a threat to Deputy Killian.” ECF No. 50 at 26. The Court

did not hold — and the Magistrate Judge did not find — Defendant’s qualified-immunity defense

failed.

To find qualified immunity did not protect Defendant, the Court would need to have held

Defendant “violated a statutory or constitutional right.” Morgan, 659 F.3d at 371 (quoting a/-Kidd,

563 U.S. at 735). The qualified-immunity analysis requires that a right be “clearly established.”

See id. “Aright is clearly established when it is defined ‘with sufficient clarity to enable a

reasonable official to assess the lawfulness of his conduct.’” Templeton v. Jarmillo, 28 F 4th 618,

621 (5th Cir. 2022) (quoting McClendon vy. City of Columbia, 305 F.3d 314, 331 (Sth Cir. 2002)

(per curiam)). Whether a right is “clearly established” turns on “whether the violative nature of

particular conduct is clearly established.” al-Kidd, 563 U.S. at 742 (emphasis added).

“[A]n officer’s shooting of a pet dog is in some circumstances a seizure under the Fourth

Amendment.” Jones v. Lopez, 689 F. App’x 337, 339 (Sth Cir. 2017) (per curiam) (emphasis

added); compare Stephen v. McClelland, 632 ¥. App’x 177, 184-85 (5th Cir. 2015) (per curiam),

and Grant v. City of Houston, 625 F. App’x 670, 675 (5th Cir. 2015) (per curiam), and

Romero v. Bexar County, 993 F. Supp. 2d 658, 661-62 (W.D. Tex. 2014), with Jones, 689 F.

App’x 339-41, and Kincheloe v. Caudle, No. A-09-CA-010-LY, 2009 WL 3381047, at *6 (W.D.

Tex. Oct. 16, 2009), report and recommendation adopted, 2009 WL 10699745 (W.D. Tex. Dec.

7, 2009). But not every circumstance in which an officer shoots a pet dog constitutes a Fourth

Amendment violation.

Because the reasonability of Defendant’s conduct remained at issue, the Court did not

decide whether it was reasonable for Defendant to shoot the pit bull. See ECF No. 50 at 27

(acknowledging “the reasonableness of an officer’s conduct under the Fourth Amendment is often

a question that requires the input of a jury” (quoting Kincheloe, 2009 WL 3381047, at *7)). Ifthe

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jury determined it reasonable for Defendant to shoot the pit bull — for example, if the jury found

the dog acted aggressively — then Defendant would not have violated Plaintiffs’ constitutional

rights. See ECF No. 131 at 2 (Question 1: “Did the Plaintiffs prove by a preponderance of the

evidence that Defendant Killian acted in an objectively unreasonable manner by shooting their dog

on June 20, 2016?”).

If Defendant violated a constitutional right, however, the Court would then ask whether

qualified immunity remained appropriate because Defendant’s actions were “objectively

reasonable” in light of “law which was clearly established at the time of the disputed action.”

Collins v. Ainsworth, 382 F.3d 529, 537 (Sth Cir. 2004); see also Wallace v. Comal County, 400

F.3d 284, 289 (Sth Cir. 2005) (“Even if the government official’s conduct violates a clearly

established right, the official is nonetheless entitled to qualified immunity if his conduct was

objectively reasonable.”); Thomas v. City of Dallas, 175 F.3d 358, 364 (Sth Cir. 1999) (holding

qualified immunity requires showing that conduct “was objectively unreasonable in light of legal

rules clearly established”); Lisa R. Eskow & Kevin W. Cole, The Unqualified Paradoxes of

Qualified Immunity: Reasonably Mistaken Beliefs, Reasonably Unreasonable Conduct, and the

Specter of Subjective Intent That Haunts Objective Legal Reasonableness, 50 BAYLOR L. REV.

869, 875-78 (1998) (distinguishing reasonableness inquiries in Fourth Amendment analysis and

qualified-immunity analysis). Those actions should be judged in light of the circumstances

confronted — without the benefit of hindsight. Graham v. Connor, 490 U.S. 386, 396-97 (1989).

A “defendant’s acts are held to be objectively reasonable unless all reasonable officials in the

defendant’s circumstances would have then known that the defendant’s conduct violated the

plaintiff's asserted constitutional or federal statutory right.’ Cozzo v. Tangipahoa Parish

Council — President Gov't, 279 F.3d 273, 284 (Sth Cir. 2002) (internal marks omitted). In essence,

Plaintiffs would bear the burden to demonstrate that no reasonable officer could have believed

shooting the pit bull to be proper. Babb v. Dorman, 33 F.3d 472, 477 (Sth Cir. 1994),

“For qualified immunity to be surrendered, pre-existing law must dictate, that is, truly

compel (not just suggest or allow or raise a question about), the conclusion for every like-situated,

reasonable government agent that what defendant is doing violates federal law in the

circumstances.” Thompson vy. Upshur County, 245 F.3d 447, 460 n.9 (Sth Cir. 2001) (internal

marks omitted). So, the Court asked the jury whether another reasonable officer in Defendant’s

position could have shot the pit bull. See ECF No. 131 at 2 (Question 2: “Did the Plaintiffs prove

by a preponderance of the evidence that no reasonable officer could have believed that shooting

the dog was lawful?”). The Court could not have adjudicated Defendant’s qualified-immunity

defense without first deciding whether Defendant violated a clearly established constitutional

right. And — as discussed — whether Defendant violated a clearly established constitutional right

remained a question for the jury to answer."

3 Although “qualified immunity ordinarily should be decided by the court long before trial, if the issue is not decided

until trial the defense goes to the jury which must then determine the objective legal reasonableness of the officers’

conduct.” McCoy v. Hernandez, 203 F.3d 371, 376 (Sth Cir. 2000); see also Snyder v. Trepagnier, 142 F.3d 791, 799

(5th Cir. 1998).

4 Plaintiffs’ third argument asserts the jury could have found Defendant “knowingly violated the law” based on certain

vague evidence they attempt to highlight — but do not cite — in the record. ECF No. 161 at 6; ef Malacara v. Garber,

353 F.3d 393, 405 (5th Cir. 2003) (“Judges are not like pigs, hunting for truffles buried in briefs.” (quoting United

States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam))); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-

16 n.7 (5th Cir. 1992) (It is not this Court’s duty to “sift through the record in search of evidence to support a party’s”

position.). But subjective intent is not part of the qualified-immunity analysis. See Brumfield v. Hollins, 551 F.3d □□□□

326 (Sth Cir. 2008). Whether qualified immunity applies is a “necessarily objective” determination, and

“reasonableness” is the “touchstone.” Poole v. City of Shreveport, 691 F.3d 624, 630 (Sth Cir. 2012). In fact,

“subjective intent is irrelevant.” Id. (emphasis added).

Harlow vy. Fitzgerald made clear that the qualified-immunity inquiry precludes inquiries into a defendant’s actual

knowledge of the law. 457 U.S. 800, 817 (1982); Halperin v. Kissinger, 807 F.2d 180, 186 (D.C. Cir. 1986) (“[T]he

qualified immunity defense is not to be denied because the defendant official in fact knew (even though most people

would not) that his action was categorically unlawful, or that it violated the plaintiff's rights because of the particular

motive for which it was taken.”). Thus, “an allegation of malice is not sufficient to defeat immunity if the defendant

acted in an objectively reasonable manner.” Malley, 475 U.S at 341; see also Graham, 490 U.S. at 397 (“[T]he

question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting

them, without regard to their underlying intent or motivation.” (emphasis added)); Crawford-El v. Britton, 523 U.S.

2. Plaintiffs knew Defendant’s qualified-immunity defense remained for trial.

At least until the Defendant’s Renewed Judgment as a Matter of Law, Plaintiffs understood

qualified immunity remained an issue to be litigated at trial. See ECF No. 50 at 25, 27

(recommending summary judgment be denied on unreasonable-seizure and qualified-immunity

issues related to the pit bull because “there is a genuine dispute of material fact as to whether the

Plaintiffs’ dogs objectively posed a threat to Deputy Killian that justified his use of force against

them”); ECF No. 60 at 2—3 (adopting Magistrate Judge’s pit bull-related FCR and leaving the

reasonableness of Defendant’s actions at issue for trial); ECF No. 89 at 9-10 (Plaintiffs object to

qualified-immunity instruction in joint-proposed jury charge); ECF No. 89 at 16

(Defendant objects to Plaintiffs’ proposed questions regarding qualified immunity in joint-

proposed jury charge); ECF No. 92 at 3 (Plaintiffs discuss qualified-immunity question in joint-

proposed jury charge); ECF No. 107 at 9 (Plaintiffs object to qualified-immunity instruction in

amended joint-proposed jury charge); ECF No. 107 at 17 (Defendant objects to Plaintiffs’

proposed questions regarding qualified immunity in amended joint-proposed jury charge); Pt. Tr.

at 28 (discussing whether Chief Birkenfeld would testify about qualified immunity); Tr. at 85

(discussing again whether Chief Birkenfeld would testify about qualified immunity); Tr. at 99—

100 (discussing cases related to qualified immunity); Tr. at 139-140 (Defendant states “one of the

issues in this lawsuit was qualified immunity, and that issue remained for trial” when moving for

judgment as a matter of law); ECF No. 124 at 2-3 (moving for judgment as a matter of law based

on qualified-immunity defense); Tr. at 141 (Plaintiffs acknowledge “[qJualified immunity was an

574, 588 (1998) (“Evidence concerning the defendant’s subjective intent is simply irrelevant to [the qualified-

immunity analysis].”); Snyder, 142 F.3d at 799; Babb, 33 F.3d at 487 n.8; William Baude, /s Qualified lmmunity

Unlawful?, 106 CAL. L. REV. 45, 60-61 (2018) (“[E]ven the official who acts in bad faith is entitled to the defense if

a different official could have reasonably made the mistake.”). Moreover, the jury made no explicit finding that

Defendant subjectively knew shooting the pit bull violated the law, and the uncited evidence Plaintiffs attempt to

highlight does not support such a finding.

issue that was brought up by the Defense in summary judgment, and this Court ruled by adopting

the Report and Recommendation of the Magistrate [Judge] that summary judgment is not

appropriate in this case”); Tr. at 164-66 (Plaintiffs cross-examine Defendant about qualified

immunity); Tr. at 222 (discussing qualified immunity); Tr. at 303, 305-06 (Plaintiffs cross-

examine Chief Birkenfeld about qualified immunity); Tr. at 328 (discussing expert report in

qualified-immunity cases); Tr. at 338 (Plaintiffs acknowledge parties “still dispute this thing of

qualified immunity”); Tr. at 338-39 (Defendant discusses qualified-immunity burden); Tr. at 339-—

40 (Court discusses qualified-immunity burden); Tr. at 343 (Defendant argues in favor of judgment

as a matter of law on qualified-immunity grounds); Tr. at 343-44 (Court discusses why it deferred

ruling on judgment as a matter of law motion based on qualified immunity); Tr. at 344 (Plaintiffs

misstate qualified-immunity burden); Tr. at 346 (Plaintiffs acknowledge qualified-immunity is at

issue during trial and again misstate burden); Tr. at 346-47 (Plaintiffs acknowledge: “there is a

genuine dispute that has to be resolved by the jury if the pit bull’s actions reasonably caused

Mr. Killian to reasonably fear for his life so that qualified immunity could apply. .. . If the jury

decides in their deliberation that the pit bull presented an objective threat... would

be appropriate for Mr. Killian to win the case on qualified immunity.”); Tr. at 348 (Plaintiffs

discuss qualified-immunity requirements); Tr. at 362-65 (Court discusses qualified immunity

references in jury charge); ECF No. 130 at 5, 6-7 (instructing the jury regarding qualified

immunity); Tr. at 403-05 (Court’s charge references qualified immunity); Tr. at 430, 434

(Plaintiffs’ attorney references qualified immunity and misstates burden in closing argument); Tr.

at 445 (Defendant’s counsel references qualified immunity in closing argument); ECF No. 131 at

2 (asking jury to answer questions related to qualified immunity); ECF No. 142 at 2-3 (moving

for renewed judgment as a matter of law based on qualified-immunity defense).

Si

But despite previously proposing jury questions regarding and repeatedly referencing

qualified immunity, Plaintiffs argue the Court resolved all qualified-immunity issues several years

ago. See ECF No. 148 at 4, 8. The above-listed citations indicate Plaintiffs knew Defendant’s

qualified-immunity defense remained for trial. Accordingly, the Court has reason to believe

Plaintiffs negligently —and perhaps intentionally — mischaracterized the issues remaining for

trial. Under either circumstance, Plaintiffs’ conduct is likely sanctionable. See, e.g., FED. R. Clv.

P. 11(b).

B. Plaintiffs Failed to Present Evidence of How a Reasonable Officer Would Act in

Defendant Killian’s Shoes

Despite the caselaw cited above, Plaintiffs contend they “needed only to present evidence

to the jury” that the pit bull was non-threatening. ECF No. 161 at 4. Plaintiffs argue they supplied

“more than enough evidence to show qualified immunity is unavailable” and such evidence

“was overwhelming.” /d. The Court disagrees.

Notwithstanding repeated, explicit admonishments, Plaintiffs begin their evidentiary

argument by again misstating the law: “Assuming arguendo that Plaintiffs did have an affirmative

burden at trial to establish what a reasonable officer would or would not do, both Sheriff Riley and

Chief Birkenfeld established that qualified immunity in this case turns on a credibility

determination.” /d. Plaintiffs’ multiple misstatements may be attributable to their negligent legal

research, rather than bad faith. But based on their abundance, the Court is unsure. See, e.g., Tr. at

335 (“Plaintiff[s] never had to oppose [Defendant’s] affirmative defense because it... . wasn’t

raised and supported by any evidence until [Defendant] testified, and then possibly when [Chief

Birkenfeld] testified.”); id at 337 (seeking to recall Sheriff Riley because “new things were

raised,” 7.e., whether a reasonable officer would have shot the pit bull); id at 344 (“Qualified

immunity is an affirmative defense, and it’s our position [Defendant] ha[s] not met [his] burden of

11

production related to that defense.”); id. at 346 (“[T]he defense of qualified immunity, which is

immunity from lawsuit, is in the position at trial as an affirmative defense, meaning that, in the

trial, it was up to the Defense to raise — to meet their burden of production to put on evidence that

no reasonable officer would — or any reasonable officer would have acted the way that

[Defendant] did and in the circumstances that [Defendant] did.”).

Plaintiffs were apprised of their burden as early as the Magistrate Judge’s FCR. See ECF

No. 50 at 9 n.12 (“Deputy Killian has asserted the defense of qualified immunity in his motion for

summary judgment. Therefore, the burden has shifted to the Plaintiffs to demonstrate that he is

not entitled to qualified immunity.” (emphasis added)). Plaintiffs were also reminded of their

burden throughout this litigation and trial. See, e.g., Tr. at 146-47, 344 (The Court “delayed

adjudication of this motion because it was [the Court’s] understanding that Plaintiff[s] counsel, in

attempting to meet their burden of proof under qualified immunity law and the Fifth Circuit, [ ] —

was attempting to adduce some of that testimony about what a reasonable officer would or would

not do during their cross-examination of the defendant in this case. So [the Court] wanted to hear

that evidence and then allow for that before deciding this motion.”); Tr. at 338 (Defendant states

it is Plaintiffs’ burden to overcome qualified immunity); Tr. at 339 (Court did not “find it plausible

that there’s any trial strategy where Plaintiffs’ counsel did not know that they bore the burden to

show that officers violated their clients’ clearly established right” in order to overcome qualified

immunity.); Tr. at 340 (Court reads Templeton v. Jarmillo, 28 F.4th 618 (Sth Cir. 2022), aloud,

and emphasized Plaintiffs’ burden); Tr. at 343 (Defendant argues Plaintiffs “have not met their

burden.”); Tr. at 348 (Court clarifies Plaintiffs’ burden, again). And the Court apprised Plaintiffs

of their burden as recently as August 12, 2022. See, e.g., ECF No. 159 at 22-23.

Contrary to the Court’s constant reminders, to date, Plaintiffs will only assume their burden

“arguendo.” ECF No. 161 at 4. Plaintiffs’ burden is — and has been — clear. See Wilson v. Nino,

No. 21-40024, 2022 WL 3098689, at *1 (5th Cir. Aug. 4, 2022) (per curiam) (““Where, as here, a

qualified immunity defense is pleaded, the burden shifts to the plaintiff to rebut it by establishing

a genuine issue as to whether the defendants’ allegedly wrongful conduct violated a clearly

established constitutional right.”); Brown v. Callahan, 623 F.3d 249, 253 (Sth Cir. 2010) (same);

Magnolia Island Plantation, L.L.C. v. Whittington, 29 F.4th 246, 250 (Sth Cir. 2022) (same);

Salazar v. Molina, 37 F.4th 278, 284 (Sth Cir. 2022) (same); Templeton, 28 F.4th at 621 (same);

Solis y. Serrett, 31 F.4th 975, 980 (Sth Cir. 2022) (same); Bazan ex rel. Bazan v. Hidalgo County,

246 F.3d 481, 489 (5th Cir. 2001) (Once the defendant asserts qualified immunity, “the burden

shifts to the plaintiff to rebut this defense by establishing that the official’s allegedly wrongful

conduct violated clearly established law.” (quoting Salas v. Carpenter, 980 F.2d 299, 306 (Sth Cir.

1992))); Pierce v. Smith, 117 F.3d 866, 872 (Sth Cir. 1997) (“We do ‘not require that an official

demonstrate that he did not violate clearly established federal rights; our precedent places that

burden upon plaintiffs.’” (quoting Salas, 980 F.2d at 306)). The Court could cite hundreds more

readily available and easily accessible cases to make this point. Yet — as Plaintiffs have made

clear from pre-trial to post-trial proceedings — they will continue to refuse to acknowledge their

burden. The Court thus assumes Plaintiffs have made their burden-related arguments with

professional negligence or in bad faith. Once again, Plaintiffs’ conduct is likely sanctionable.

C. Plaintiffs’ Counsel Continues to Act Imprudently

At the end of their Motion, Plaintiffs address several previously noted “missteps that

typified this litigation.” ECF No. 161 at 7 (quoting ECF No. 159 at 2). Plaintiffs contend these —

in their words — “alleged ‘missteps’ had little, if anything, to do with the Court’s determination

of whether qualified immunity requires judgment in favor of the defense.” Jd. Plaintiffs first

respond to the Court’s statement that “Plaintiffs failed to timely designate a single expert witness.”

Id. (quoting ECF No. 159 at 2). Second, Plaintiffs quarrel with the Court’s decision to highlight

the premature appeal they took. See id.°

Whereas Plaintiffs did not detail in-depth their disagreements with the Court’s decision to

highlight the expert and premature appeal issues, Plaintiffs devoted significant briefing to

addressing their motion to reconsider the Court’s November 29, 2019 summary-judgment ruling.

Id.; see also ECF No. 113. Plaintiffs correctly acknowledge “[t]he Court’s written order explicitly

invited ‘untimely’ motions.” ECF No. 161 at 7-8 (quoting ECF No. 110 at 1). At the pre-trial

conference — which occurred the same day the Court issued the Order Plaintiffs reference — the

Court expressly stated it would adjudicate untimely motions upon a showing of “good cause” and

entertain such motions “before close of business Friday.” Pt. Tr. at 16-17. Plaintiffs met neither

requirement. Plaintiffs filed their “untimely” motion after “close of business Friday” — making

the motion doubly “untimely.” Plaintiffs also failed to show “good cause.” “In essence, Plaintiffs

asked the Court to reconsider a two-year-old summary-judgment order, on a Friday evening, on

the eve of trial.” ECF No. 159 at 3; see also ECF No. 114 at 1 (“The parties were ordered to

conclude discovery on [the unreasonable-seizure] claim on or before September 11, 2020. Exactly

350 days later and approximately 80 hours before trial, Plaintiffs filed the late-breaking Motion.”).

5 On December 27, 2019, after the Court adjudicated summary judgment, Plaintiffs attempted an interlocutory appeal.

See ECF No. 62. Plaintiffs did so although the Court had not issued an appealable order or judgment. The Fifth Circuit

subsequently dismissed the appeal for want of jurisdiction. See generally ECF No. 64. Later, despite obtaining a final

judgment, Plaintiffs argued “[b]ecause the Plaintiffs have not exhausted their right to appeal . . . the ultimate success

of [their] claims is not yet final” and, so, the Court should not require briefing on awardable attorney’s fees and court

costs. ECF No. 134 at 2. But as the Court noted: “That Plaintiffs may attempt to appeal their summarily adjudicated

claims does not mean the Court’s disposition of those claims is not final.” ECF No. 135 at 2. And Plaintiffs

acknowledged as much. See ECF No. 134 at 2 (“Plaintiffs may now perfect an appeal concerning the pretrial rulings.”).

So, the Court held, “Plaintiffs cannot argue both that resolution of their claims is ‘not yet final’ and they now ‘wish

to appeal the Court’s pretrial rulings’ on those same claims.” ECF No. 135 at 2 (quoting ECF No. 134 at 1—2)).

4A

Plaintiffs now emphasize “the motion was untimely by 17 minutes.” ECF No. 161 at 8

(emphasis in original). Why Plaintiffs continue to argue against their tardiness is beyond the Court.

Late is late. Plaintiffs also emphasize “the fact that the Court denied the motion and issued an order

to show cause does not discount Plaintiffs’ arguments [made in the motion].” Jd. No. That the

Court denied the motion and ordered Plaintiffs to show cause indicates Plaintiffs filed an

inappropriate, untimely, and again, untimely, motion with the Court, on the eve of trial, 350 days

after the Court’s summary-judgment ruling. See ECF No. 114 at 2 (ordering Plaintiffs to “show

cause why their conduct should not be sanctioned”).

Plaintiffs also ignore the context in which the Court allowed parties to file “untimely”

motions. At the pre-trial conference, the Court stated: “Regarding any untimely motions, .. . . [t]he

Court is willing to adjudicate those. ...So if upon review in case prep, you think that there's

something that should have been adjudicated, 1 will order the parties to file those by close of

business Friday.” Pt. Tr. at 16-17 (emphasis added). Again, Plaintiffs ask the Court to reconsider

its summary-judgment ruling 350 days after the Court issued its summary-judgment ruling.

Summary judgment was not “something that should have been adjudicated.” Jd. at 17.

The Court adjudicated summary judgment on November 27, 2019. Therefore, in addition to being

filed after the untimely motion deadline and without good cause, Plaintiffs’ motion to reconsider

the Court’s summary-judgment ruling fell outside the class of untimely motions the Court

indicated it would adjudicate before trial. Plaintiffs must have understood that again asking the

Court to dispose of the entire case did not qualify as the type of “untimely” motion the Court

agreed to consider.

Fourth, Plaintiffs take issue with the Court’s acknowledgment that Plaintiffs’ counsel

violated the Court’s Limine Order (ECF No. 106) during Plaintiffs’ opening statements.

ECF No. 161 at 8. Plaintiffs acknowledge the Court determined (and Defendant agreed) it need

not issue a curative instruction to the jury because “unringing the bell” would invite further

attention. See id. at 9. But Plaintiffs fail to acknowledge that the Court issued a written reprimand

to Plaintiffs’ attorneys for their violation of the Limine Order. See ECF No. 122 at 2 (“Accordingly,

counsel for Plaintiffs are hereby REPRIMANDED for their violation of this Court’s Limine Order

and CAUTIONED that additional violations may result in sanctions or disciplinary action.”).

Fifth, Plaintiffs acknowledge Mr. Keller, one of Plaintiffs’ counsel, sent a text message to

the Courtroom Deputy at 10:07 p.m. ECF No. 161 at 9. Plaintiffs do not dispute the

inappropriateness of the message. Instead, Plaintiffs claim — without evidence — the Courtroom

Deputy “was unaffected by the timing of the text message.” Jd. Why Plaintiffs contend if matters

whether the Courtroom Deputy was affected by the text message is perplexing. Plaintiffs are in no

position to expound on whether the Courtroom Deputy was affected or unaffected by a text

message sent approximately five hours after close of business.

Sixth, Plaintiffs state they “did not need to recall Sheriff Riley,” as if Plaintiffs’ failure to

elicit testimony related to the reasonableness of Defendant’s actions was a strategic decision on

Plaintiffs’ part. /d. Plaintiffs’ explanation is unlikely. See Tr. at 339 (The Court did not “find it

plausible that there’s any trial strategy where Plaintiffs’ counsel did not know that they bore the

burden to show that officers violated their clients’ clearly established right” in order to overcome

qualified immunity.). Plaintiffs, in fact, did think it necessary to recall Sheriff Riley, and attempted

to do so. See id. at 333.

The Court is unsure why Plaintiffs’ counsel continue to argue against their imprudent

conduct — conduct for which they have been reprimanded and have risked sanctions. Such

arguments are likely made in bad faith, as Plaintiffs’ counsel cannot seriously contend their actions

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are not either unbecoming of members of the bar or disrespectful to this Court. Accordingly, such

conduct is likely sanctionable.

D. Plaintiffs’ Counsel Must Show Cause for Their Conduct

Rule 11(c) permits a court to sanction attorneys “[i]f, after notice and a reasonable

opportunity to respond, the court determines that Rule 11(b) has been violated.”® Rule 11(b)

governs representations counsel make to a court: “By presenting to the court a pleading, written

motion, or other paper. ..an attorney... certifies that to the best of the person’s knowledge,

information, and belief, formed after an inquiry reasonable under the circumstances,” the attorney

makes certain representations. Such representations made in “pleading, written motion, or other

paper” include: (1) “it is not being presented for any improper purpose, such as to harass, cause

unnecessary delay, or needlessly increase the cost of litigation”; (2) any “claims, defenses, and

other legal contentions are warranted by existing law or by a nonfrivolous argument for extending,

modifying, or reversing existing law or for establishing new law”; (3) all “factual contentions have

evidentiary support.” FED. R. Civ. P. 11(b)(1)}-(3).’ Sanctions “must be limited to what suffices to

deter repetition of the conduct or comparable conduct by others similarly situated” and “may

include nonmonetary directives” or “an order to pay a penalty into court.” FED. R. Crv. P. 11(c)(4).

Northern District of Texas Local Rule 83.8 provides additional grounds for disciplinary action,

including: (1) “conduct unbecoming a member of the bar’; (2) “unethical behavior”; and

(3) “inability to conduct litigation properly.”

Courts also possess the inherent power “to protect the efficient and orderly administration

of justice and...to command respect for the court’s orders, judgments, procedures, and

§ Courts can invoke Rule 11 swa sponte. See FED. R. Civ. P. [1(c)(3) (“On its own, the court may order an

attorney .. . to show cause why conduct specifically described in the order has not violated Rule 11(b).”).

7 Rule 11(b), of course, governs other possible representations unlikely to be at issue here.

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authority.” Jn re Stone, 986 F.2d 898, 902 (Sth Cir. 1993) (per curiam); see also Nat. Gas Pipeline

Co. of Am. v. Energy Gathering, Inc., 2 F.3d 1397, 1407 (Sth Cir. 1993) (“A long line of cases

establishes that the Rules are not always the exclusive source of a federal court’s powers in civil

cases.””); cf. United States v. Torres, 751 F.2d 875, 880 (7th Cir. 1984) (“The motto of the Prussian

state — that everything which is not permitted is forbidden — is not a helpful guide.”).

“Reliance on this inherent authority is appropriate when there is a ‘wide range of willful conduct’

implicating multiple rules or when the conduct at issue is altogether ‘beyond the reach of the

rules.’” Sarco Creek Ranch v. Greeson, 167 F. Supp. 3d 835, 845 (S.D. Tex. 2016) (quoting

Woodson y. Surgitek, Inc., 57 F.3d 1406, 1418 (Sth Cir. 1995) and Chambers v. NASCO, Inc., 501

U.S. 32, 51 (1991)) (internal marks omitted).

Before trial began, Plaintiffs filed an untimely motion for which the Court ordered

Plaintiffs’ counsel to “show cause why their conduct should not be sanctioned.” ECF No. 114 at 2.

The Court did not sanction Plaintiffs’ counsel. During trial, Plaintiffs violated the Court’s Limine

Order. See ECF No. 122. Although the Court issued a reprimand, the Court stopped short

of sanctioning Plaintiffs’ counsel. Now, post-trial, Plaintiffs’ counsel again engage in conduct

unbecoming of members of the bar and the attorney profession, as well as disrespectful to

this Court.

First, despite their contrary contentions, Plaintiffs knew Defendant’s qualified-immunity

defense remained for trial. The Court has reason to believe Plaintiffs either made this argument in

bad faith or negligently — and perhaps intentionally — mischaracterized the issues remaining for

trial. Therefore, the Court finds Plaintiffs’ attorneys’ conduct is likely sanctionable.

Second, Plaintiffs continue to dispute the burden they bear regarding Defendant’s

qualified-immunity defense. As Plaintiffs have made clear from pre-trial to post-trial proceedings,

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Plaintiffs do not intend to acknowledge their burden under the law. The Court thus assumes

Plaintiffs have made their burden-related arguments with negligence or in bad faith. The Court

finds Plaintiffs’ attorneys’ conduct is likely sanctionable.

Third, Plaintiffs continually quarrel with the Court’s recognition of their professional

missteps. For instance, although Plaintiffs acknowledge they filed their untimely motion late, they

essentially argue “it was not really ‘hat late, so what’s the big deal?” See ECF No. 161 at 8 (stating

“the motion was untimely by /7 minutes” (emphasis in original)). Plaintiffs also argue their

violation of the Court’s Limine Order was, in essence, “not a big deal” despite being reprimanded

for their violation. And perhaps most shockingly, Plaintiffs argue — without evidence — that the

Courtroom Deputy “was unaffected by the timing of the text message” Plaintiffs’ counsel sent her

at 10:07 p.m. after the first day of trial. ECF No. 161 at 9. Plaintiffs have no basis for their assertion

and fail to provide any reason why the Courtroom Deputy’s feelings about the inappropriate text

message justifies their actions. Collectively — and alongside their flippant arguments — the Court

finds Plaintiffs’ attorneys’ conduct is likely sanctionable.

In short, Plaintiffs’ counsel continue to engage in conduct unbecoming of members of the

bar and the attorney profession, disrespectful to this Court, and offensive to the United States

judiciary. From pre-trial to post-trial, and whether considered separately or in total, Plaintiffs’

attorneys’ conduct is likely sanctionable. Accordingly, the Court ORDERS Plaintiffs’ counsel to

SHOW CAUSE for their conduct. Plaintiffs’ counsel must show good cause in writing

by 5:00 p.m. (CDT), on or before October 7, 2022. Each member of Plaintiffs’ counsel must

separately apprise the Court — in no more than ten (10) pages — as to why he or other members

of Plaintiffs’ counsel should not be sanctioned. If Plaintiffs’ counsel fail to show good cause for

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their conduct, the Court may order Plaintiffs’ counsel to appear in person, reprimand counsel, or

issue appropriate sanctions, monetary or otherwise.

SO ORDERED.

September 2022 Epuexf ——

MATAHEW J. KACSMARYK

UNITED STATES DISTRICT JUDGE

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