Winder v. Gallardo

Case: 24-10017 Document: 82-1 Page: 1 Date Filed: 09/27/2024

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

____________ FILED

September 27, 2024

No. 24-10017 Lyle W. Cayce

____________ Clerk

Latrisha Winder, Individually, as next friend of J.W., a minor and as

personal representative of the Estate of Stephen Wayne Winder,

Deceased; Lily Winder; Stephen Tyler Winder; Kolene

Winder, as next friend of E.W., a minor,

Plaintiffs—Appellants,

versus

Joshua M. Gallardo; Robert Travis Babcock; Young

County, Texas,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 7:23-CV-59

______________________________

Before Jones, Willett, and Engelhardt, Circuit Judges.

Per Curiam:

Upset that he saw Facebook messages between his wife and her ex-

husband, Steve Winder became suicidal. Later that night, his wife Latrisha

(who was out of state for National Guard training) called her mother and told

her that Steve had sent her pictures in which he was holding a gun to his head.

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Latrisha called the Young County Sheriff’s department for a welfare

check. Deputy Joshua Gallardo arrived and, after hearing Steve shout from

within, opened the front door. Steve’s mother-in-law indicated he was armed

and walking to the nearby bedroom door. Deputy Gallardo yelled at Steve to

put the gun down before fatally shooting him. Appellants sued for (1) war-

rantless entry, (2) excessive force, (3) supervisory liability, (4) Monell liabil-

ity, and (5) ADA violations. The District Court dismissed the case at the

12(b)(6) stage. It did so correctly.

First, Steve’s suicidality, combined with his possession of the means

to follow through (the gun), created exigent circumstances excusing the need

for a warrant. Second, an objectively reasonable officer in Deputy Gallardo’s

shoes wouldn’t need for Steve to point the gun at him before using deadly

force under the facts as pled and from what can be seen in Deputy Gallardo’s

body cam footage, defeating the excessive force claim. Third, there is no un-

derlying constitutional violation to support a claim for supervisory or Monell

liability. Fourth, Title II of the ADA (which Appellants sued under) doesn’t

support claims where police officers faced exigent circumstances, such as

those created by which Steve’s suicidality. We AFFIRM.

I. Background

A. Factual

Steve was enjoying an afternoon of swimming and drinks with family

and friends when he accidentally got in his pool with his cell phone. So he

went inside his house and charged his wife Latrisha’s old cell phone. She was

in Fort Lee, Virginia training for the National Guard at the time. On her

phone, he found private Facebook messages between Latrisha and her ex-

husband. Latrisha’s ex-husband wanted to get back together, but she

declined.

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Presumably upset, Steve walked next door to show the messages to his

mother-in-law, Lou Anne Phillips, around 4:00 p.m. Lou Anne sympathized

with Steve, agreeing that Latrisha should have told him about the messages

while emphasizing that Latrisha declined her ex-husband’s advances. Steve

went home, but later that evening Lou Anne began receiving texts from

Latrisha expressing concern that she couldn’t reach Steve and was worried

about him because of his history of excessive drinking and mental illness,

namely depression. Lou Anne went over to check on Steve, let him use her

phone to call Latrisha, and took Steve’s daughter J.W. back to her house at

Steve’s request.

Around 7:00 p.m. Latrisha called Lou Anne again, telling her that

Steve sent pictures of himself holding a handgun under his chin and to his

head, stating that he “could not bear it anymore.” Lou Anne went to check

on Steve again. Around the same time, Latrisha called the Young County

Sheriff’s Department to request a welfare check for Steve, informing officers

that Steve had sent pictures holding a gun to his head.

Deputies Gallardo and Dwyer were dispatched to the Winders’ home,

driving in separate vehicles. Deputy Gallardo got there first, where Steve’s

niece escorted him to the Winders’ front door. Lou Anne heard that someone

was at the door and tried to retrieve the gun from Steve, but Steve got upset,

yelling “I don’t give a [expletive]. This is my home” and took the gun. Steve

was heavily intoxicated at the time, with a BAC of .173.

After hearing Steve shout, Deputy Gallardo opened the door, said

“Hello, Sheriff’s Office,” and remained on the porch. 1 He received no

_____________________

1

Appellants dispute this and claim that Deputy Gallardo entered the home, but

body camera footage demonstrates that he remained outside the home until after the

shooting occurred. But, as explained below, whether Deputy Gallardo entered the home or

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immediate response, so he called out “Steve” in a louder voice. Steve

responded “What?” from the bedroom, and Lou Anne emerged saying

“We’re right here. Can I help you?” But Lou Anne then saw Steve holding

his gun and approaching the bedroom door. She told Steve to “put it up,”

and informed Deputy Gallardo that “he’s got a gun.” Deputy Gallardo drew

his service weapon, radioed “he’s got a gun, he’s got a gun,” and told Steve

“put it down man, put it down.” Deputy Gallardo then shot Steve once in

the chest. Body cam footage indicates that the above took place over

approximately 28 seconds.

Deputy Dwyer arrived about forty seconds after. The Deputies

entered the bedroom and saw Steve on the floor and his handgun on the bed,

which Deputy Gallardo secured and removed to one of their vehicles. The

Deputies rendered aid until emergency medical services arrived a few

minutes later, but Steve ultimately died.

B. Procedural

Appellants asserted claims for warrantless entry, excessive force,

supervisory liability, Monell liability, and Americans with Disabilities Act

(“ADA”) violations against Deputy Gallardo, Sheriff Robert Travis

Babcock, and Young County, Texas. Defendants filed a Motion to Dismiss,

which the District Court granted. Appellants timely appealed.

II. Standard of Review

A district court’s Fed. R. Civ. Pro. 12(b)(6) dismissal on the

pleadings receives de novo review. Morgan v. Swanson, 659 F.3d 359, 370 (5th

Cir. 2011) (en banc). In conducting that review, we accept “all well-pleaded

_____________________

not is non-dispositive because Steve’s suicidality and possession of the means to follow

through (the gun) created exigent circumstances justifying warrantless entry. Infra III(B).

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facts as true and draw[s] all reasonable inferences in favor of the nonmoving

party.” Id. We do not, however, “presume true a number of categories of

statements, including legal conclusions; mere labels; threadbare recitals of

the elements of a cause of action; conclusory statements; and naked

assertions devoid of further factual enhancement.” Id. (cleaned up) (quoting

Ashcroft v. Iqbal., 556 U.S. 662, 678 (2009)). But while “the court accepts ‘all

well-pleaded facts as true and draw[s] all reasonable inferences in favor of the

nonmoving party,’” “the video depictions of events, viewed in the light most

favorable to the plaintiff, should be adopted over the factual allegations in the

complaint if the video ‘blatantly contradict[s]’ those allegations.” Harmon v.

City of Arlington, Tex., 16 F.4th 1159, 1162–63 (5th Cir. 2021) (quoting Scott

v. Harris, 550 U.S. 372, 380 (2007)) (cleaned up).

The parties disputed in a motion to strike whether the body cam video

was sufficiently referenced to the point of being incorporated in the

complaint; regardless, the District Court noted that it relied solely on the

complaint in dismissing the case and denied that motion as moot. Appellants

nevertheless referenced the video in their complaint and brief, included

several screenshots from the video in their complaint, and caselaw supports

our consideration of the video. See, e.g., Harmon, 16 F.4th at 1162–63 (relying

on appended video evidence to affirm district court’s dismissal of all claims

based on qualified immunity); Hodge v. Engleman, 90 F.4th 840, 843 (5th Cir.

2024); see also, e.g., Salinas v. Loud, No. 22-11248, 2024 WL 140443, at *1

(5th Cir. Jan. 12, 2024) (unpublished).

Qualified immunity protects government officials “from liability for

civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine

whether a government official is entitled to qualified immunity, we must

decide (1) whether a plaintiff has alleged facts sufficient to establish a

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constitutional violation, and (2) whether the right at issue was clearly

established at the time of the defendant’s alleged misconduct. Pearson v.

Callahan, 555 U.S. 223, 231–32 (2009). And we have discretion to determine

the order in which we consider those questions. Id. at 236.

III. Discussion

A. We decline Appellants’ invitation to upend qualified immunity.

Before delving into their case’s substance, Appellants first request

that we upend qualified immunity outright. This request is, as Appellants

concede, outside our abilities. (“While this Court cannot abrogate Supreme-

Court authority on QI, Plaintiffs raise it now for potential argument in the

Supreme Court.”). “As a panel of this court, however, we are bound by the

precedential decisions of both our court and the Supreme Court.” Garcia v.

Blevins, 957 F.3d 596, 602 (citing Vaughan v. Anderson Reg. Med. Ctr., 849

F.3d 588, 591 (5th Cir. 2017)) (rejecting argument to reconsider Fifth

Circuit’s approach to qualified immunity). We decline Appellants’

invitation.

B. Appellants’ warrantless entry claim.

Appellants argue that Deputy Gallardo’s warrantless entry was an

unjustified violation of Steve’s constitutional rights. Appellees assert

qualified immunity, responding that Deputy Gallardo never entered the

home until after the shooting, and even if he did, Steve’s suicidality created

an exigent circumstance justifying warrantless entry. Even taking

Appellants’ version of the facts as true in the face of body camera footage

demonstrating otherwise, Appellants do not allege facts overcoming an

exigent circumstance under this Circuit’s decision in Rice v. Reliastar Life

Ins., which held that suicidality “may create an exigency . . . so compelling

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that a warrantless entry is objectively reasonable under the Fourth

Amendment.” 770 F.3d 1122, 1131 (5th Cir. 2014).

“[S]earches and seizures inside a home without a warrant are

presumptively unreasonable.” Brigham City v. Stuart, 547 U.S. 398 (2006)

(cleaned up). But the exigent circumstances exception exists, applying when

‘“the exigencies of the situation’ make the needs of law enforcement so

compelling that [a] warrantless search is objectively reasonable under the

Fourth Amendment.” Id. (citation omitted). “The Government bears the

burden of demonstrating exigent circumstances.” United States v. Troop, 514

F.3d 405, 409 (5th Cir. 2008).

Suicidality presents a tragically common example of exigent

circumstances. See, e.g., Rice, 770 F.3d at 1131 (granting qualified immunity)

(“This is not the first time we have encountered a tragic factual scenario like

the one present here: a police officer, in an attempt to aid a potentially

suicidal individual, entered without a warrant and killed the person the officer

was trying to help.”) (collecting cases). Rice squarely confronted the issue of

“whether the exigent circumstances exception to the warrant requirement

may allow for a warrantless entry based on the threat an individual poses to

himself.” Id. And Rice “h[e]ld that the threat an individual poses to himself

may create an exigency that makes the needs of law enforcement so

compelling that a warrantless entry is objectively reasonable under the

Fourth Amendment.” Id. “The need to protect or preserve life or avoid

serious injury is justification for what would be otherwise illegal absent an

exigency or emergency.” Id. (quoting Brigham City, 547 U.S. at 403). “This

need to protect or preserve life is not limited to instances where violence is

directed to another person; the need to protect and preserve life can be just

as strong when the violence is directed at one’s self.” Id. (emphasis added)

(citing Fitzgerald v. Santoro, 707 F.3d 725, 731 (7th Cir. 2013)); see also, e.g.,

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Clark, 850 F. App’x at 211 (“The exigency of a credible risk that a person is

about to end their life justifies[] warrantless entr[y.]”).

Body camera footage shows that Deputy Gallardo did not enter until

after the shooting. But, even if he did, the 911 call made clear that Steve was

suicidal and potentially in possession of a gun, just like the decedent in Rice.

Rice, 770 F.3d at 1132. Thus, Deputy Gallardo’s warrantless entry was

objectively reasonable because it was prompted by credible information that

Steve both “was a suicide risk and had the means to act on it.” Clark v.

Thompson, 850 F. App’x 203, 211 (5th Cir. 2021) (emphasis added); Rice, 770

F.3d at 1132. Deputy Gallardo’s entry was clearly in line with Rice, exigent

circumstances existed, and no constitutional violation occurred.

C. Appellants’ excessive force claim.

Appellants assert that Deputy Gallardo used excessive force when he

shot Steve, and Appellees counter that Deputy Gallardo’s use of force is

protected under qualified immunity. Excessive force claims must establish

“(1) 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.” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)

(cleaned up). An injury occurred—Deputy Gallardo shot and killed Steve—

so the analysis hinges on prongs (2) and (3). Deputy Gallardo’s use of force,

viewed “from the perspective of a reasonable officer on the scene,” Graham

v. Connor, 490 U.S. 386, 388 (1989), was neither excessive nor unreasonable

because “[a] police officer does not have to permit a suspect to aim his

weapon before answering the threat.” Jones v. Shivers, 697 F. App’x 334, 334

(citing Salazar-Limon v. City of Houston, 826 F.3d at 272, 279 n.6 (5th Cir.

2016).

“Reasonableness” is an objective inquiry: one asks “whether the

officers’ actions are ‘objectively reasonable’ in light of the facts and

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circumstances confronting them, without regard to their underlying intent or

motivation.” Graham, 490 U.S. at 397 (citations omitted). “The

‘reasonableness’ of a particular use of force must be judged from the

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

vision of hindsight.” Id. at 396. And one must account 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.” Id. at 396–97. To

access reasonableness, we consider three factors that the Supreme Court

outlined in Graham v. Connor: (1) “the severity of the crime at issue,” (2)

“whether the suspect poses an immediate threat to the safety of the officers

or others,” (3) “and whether he is actively resisting arrest or attempting to

evade arrest by flight.” Deville, 567 F.3d at 167 (citing Graham v. Connor, 490

U.S. at 396).

When it comes to deadly force, “[a]n officer’s use of deadly force is

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

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

officer or to others.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009). And

“if the officer believes the suspect has a gun, the calculation changes—even

if there was never, in fact, a gun.” Allen v. Hays, 65 F.4th 736, 744 (5th Cir.

2023) (emphasis added). Uses of force may be reasonable when the officer

could reasonably believe the suspect was reaching for or had a gun. See, e.g.,

Ontiveros v. City of Rosenberg, 564 F.3d 379, 385 (5th Cir. 2009) (officer did

not use excessive force even when subsequent search of bedroom revealed no

weapons)(“[T]his court has upheld the use of deadly force where a suspect

moved out of the officer’s line of sight and could have reasonably been

interpreted as reaching for a weapon.”); Reese v. Anderson, 926 F.2d 494, 501

(5th Cir. 1991) (police did not use excessive force when a decedent repeatedly

refused to keep hands raised and appeared to be reaching for an object,

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despite the “fact that [the decedent] was actually unarmed.”) (emphasis

added).

Much confusion exists around whether Steve was, in fact, holding a

gun the moment he was shot. The body cam footage is inconclusive: Deputy

Gallardo was standing outside the front door peering into the home after

being informed by Lou Anne that Steve “ha[d] a gun,” so the doorframe

obscures where Steve was standing and footage neither confirms nor denies

that Steve was holding a gun. At the same time, the complaint alleges that

Steve “had gotten up from his chair with his gun” and walked “to the

bedroom doorway” while yelling. Lou Anne herself even believed Steve had

a gun, telling him to “put it up” and informing Deputy Gallardo “he’s got a

gun.” And Deputy Gallardo radioed this information, then told Steve “put it

down man, put it down” directly before firing, indicating that he saw (or at

least believed that he saw) Steve holding a gun before firing. But whether

Steve was in fact aiming a gun at Deputy Gallardo does not matter—binding

caselaw demonstrates that what matters is whether Deputy Gallardo could

reasonably believe that Steve was reaching for or had a gun. See, e.g., City of

Rosenberg, 564 F.3d at 385.

Taking the facts alleged as true, a reasonable officer in Deputy

Gallardo’s position would have reasonably believed that Steve had or was

reaching for a gun—meaning Steve “pose[d] a threat of serious harm to

[him] or to others.” Manis, 585 F.3d at 843. The body cam footage and

complaint as pled show as much, including (1) the 911 call informing Deputy

Gallardo that Steve had a gun and was in an unstable (indeed suicidal) mental

state, (2) Steve’s walking toward the door while yelling, (3) Lou Anne telling

Steve to “put [the gun] up,” (4) Lou Anne informing Deputy Gallardo that

“he’s got a gun,” and (5) Deputy Gallardo commanding Steve twice to “put

[the gun] down.” Nor would a reasonable officer in Deputy Gallardo’s

position “have to permit [Steve] to aim his weapon before answering the

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threat.” Jones, 697 F. App’x at 334; see also Salazar-Limon, 826 F.3d at 279

n.6 (“[W]e have never required officers to wait until a defendant turns

towards them, with weapon in hand, before applying deadly force to ensure

their safety.”) (collecting cases). Deputy Gallardo’s use of deadly force was

neither excessive nor unreasonable under our binding caselaw, meaning no

constitutional violation occurred.

D. Appellants’ supervisory liability claim.

Appellants also allege a failure-to-supervise claim against Sheriff

Babcock, relying on the single incident exception to do so. Appellants needed

to show “(1) the [sheriff] failed to supervise or train the officer; (2) a causal

connection existed between the failure to supervise or train and the violation

of the plaintiff’s rights; and (3) the failure to supervise or train amounted to

deliberate indifference to the plaintiff’s constitutional rights.” Roberts v. City

of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005). Even assuming arguendo that

there was a failure to supervise, Appellants cannot succeed at the second step

because no violation of rights occurred. Supra III(B)–(C).

E. Appellants’ Monell claim.

Appellants also levy a Monell claim against Young County.

“[M]unicipal liability under section 1983 requires proof of three elements: a

policymaker; an official policy; and a violation of constitutional rights whose

‘moving force’ is the policy or custom.” Piotrowski v. City of Hous., 237 F.3d

567, 578 (5th Cir. 2001) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

694 (1978)). “‘[I]t is well established that there must be an underlying

constitutional violation for there to be a claim under Monell.’” Landry v.

Laborde-Lahoz, 852 Fed. App’x 123, 127 (5th Cir. 2021) (quoting Taite v. City

of Fort Worth Texas, 681 F. App’x 307, 309 (5th Cir. 2017)). But no

constitutional violation took place here. Supra III(B)–(C). So, the Monell

claim lacks an underlying constitutional claim and therefore fails.

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F. Appellants’ ADA claims.

Finally, Appellants argue that Young County violated the ADA. An

ADA plaintiff must show: “(1) that he has a qualifying disability; (2) that he

is being denied the benefits of services, programs, or activities for which the

public entity is responsible, or is otherwise discriminated against by the

public entity; and (3) that such discrimination is by reason of his disability.”

Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011). Key here is Hainze v.

Richards, which foreclosed ADA claims where police officers face exigent

circumstances. See 207 F.3d 795, 801 (5th Cir. 2000) (qualified immunity

case where an officer shot a suicidal, mentally ill man threatening and

advancing toward him with a knife) (Title II of the ADA “does not apply to

an officer’s on-the-street responses to reported disturbances, whether or not

those calls involve subjects with mental disabilities”); see also Windham v.

Harris Cnty., Tex., 875 F.3d 229, 235 (5th Cir. 2017) (ADA allows

“individuals to sue local governments for disability discrimination

committed by police in non-exigent circumstances.” (emphasis added)).

As discussed above, there were indeed exigent circumstances—Steve

“was a suicide risk and had the means to act on it.” Clark, 850 F. App’x at

211 (emphasis added); see supra III(B). These exigent circumstances

(circumstances resembling those in Hainze itself) foreclose ADA relief. See

207 F.3d at 801. Moreover, Appellants cannot show that Steve was

discriminated against “by reason of his disability” (here, depression).

Appellants point to no facts showing that Deputy Gallardo shot Steve because

Steve was depressed. Instead, they assert that Young County lacked policies

to “protect [Steve’s] welfare” or “respond[] to threatened suicide calls with

well-established crisis intervention techniques, including responding with a

mental-health professional.” But this doesn’t demonstrate that Deputy

Gallardo shot Steve “by reason of” his depression. Deputy Gallardo shot

Steve “by reason of” circumstances that would lead an objectively

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reasonable officer to reasonably believe that Steve was reaching for or had a

gun. Supra III(C).

IV. Conclusion

We AFFIRM the District Court in full for the reasons stated.

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