The opinion
UNITED STATES DISTRICT COURT September 30, 2024
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION
STEPHEN BENAVIDES,
Plaintiff, §
§
VS. § CIVIL ACTION NO. 4:21-CV-1289
§
HARRIS COUNTY, TEXAS, §
and DEPUTY J. NUNEZ, Individually, §
Defendants. §
MEMORANDUM OPINION AND ORDER
This case turns on whether a deputy intentionally or accidentally shot an unarmed
man in the doorway of a home. This is a quintessential genuine issue of material fact that
must be resolved by a jury. Pending before the Court is a motion for summary judgment
filed by Harris County Sheriff Deputy Jose Nunez (“Nunez”). (Dkt. 81). After carefully
reviewing the motion, response, reply, applicable law, and the entire record, the motion is
DENIED.
FACTUAL BACKGROUND
One evening in 2019, Sandra Garibay (“Garibay”) called 911 and said she needed
police because she thought an intruder had been in her house. She was home with her
children. She said her father, Stephen Benavides, was on his way to her house and would
be driving a white Chevy pickup truck. Nunez and another deputy responded, and much of
what followed was captured on Nunez’s body camera footage.1 Nunez approached the
1 See Walker v. City of Houston, No. 22-20537, 2023 WL 6457926, at *3 (5th Cir. Oct. 4, 2023)
(“Although we view the evidence favorably to the nonmovant, we nevertheless ‘assign greater
house, which had a white pickup truck parked on its front lawn, and said, “Looks like a
crash.” Turning on his flashlight, he stopped to inspect the truck. He pulled out his gun as
he proceeded toward the house. He inspected the areas around the house quietly including
the lawn to either side of the house, the front door, and the vehicle parked on the driveway.
He then went to the front door and put his right hand on the doorknob. The door appeared
to move. (Benavides testified that he “went to go open the front door.) Nunez raised his
gun in his left hand as the door opened and shot Benavides in his left leg. As Nunez lowered
the gun, he switched it into his night hand.
a ro
‘ A a ek □
= □
= pe a
Rh | i ie
ne —
Both of Nunez’s hands were on the gun when he fired, as can be seen in this picture
taken from the body camera footage. The video, however, does not establish whether
weight, even at the summary judgment stage, to the ... video recording[ | taken at the scene.’”)
(quoting Betts v. Brennan, 22 F 4th 577, 582 (Sth Cir. 2022)).
2/8
Nunez was transitioning the gun from one hand to other when he fired or he was putting
both hands on the gun in preparation to shoot whoever was behind the door. Nunez claims
the former and that he accidentally shot Benavides. Benavides argues the video shows
Nunez intentionally shooting Benavides.
Benavides brought an excessive force claim against Nunez under the Fourth
Amendment. In his pending motion, Nunez argues that his action was not objectively
unreasonable. He also argues that he shot Benavides accidentally and that accidental
shootings do not violate the Fourth Amendment.
APPLICABLE LAW
I. Summary Judgment Standard
Under Federal Rule of Civil Procedure Rule 56, summary judgment is appropriate
“if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322‒24
(1986). “A genuine dispute of material fact exists when the ‘evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Burrell v. Prudential Ins.
Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016) (quoting Anderson v. Liberty Lobby, 477
U.S. 242, 248 (1986)). A fact is material if “its resolution could affect the outcome of the
action.” Nunley v. City of Waco, 440 Fed. App’x 275, 277 (5th Cir. 2011). The court must
view the facts and draw all reasonable inferences in the light most favorable to the
nonmoving party. Darden v. City of Fort Worth, 880 F.3d 722, 727 (5th Cir. 2018). The
Court does not, however, “in the absence of any proof, assume that the nonmoving party
could or would prove the necessary facts to survive summary judgment.” Salazar-Limon
v. City of Houston, 826 F.3d 272, 277 (5th Cir. 2016), as revised (June 16, 2016) (internal
quotation marks and citation omitted).
“Where the non-movant bears the burden of proof at trial, ‘the movant may merely
point to the absence of evidence and thereby shift to the non-movant the burden of
demonstrating . . . that there is an issue of material fact warranting trial.” Kim v. Hospira,
Inc., 709 F. App’x 287, 288 (5th Cir. 2018) (quoting Nola Spice Designs, L.L.C. v. Haydel
Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015)). If the movant produces evidence that
tends to show that there is no dispute of material fact, the nonmovant must then identify
evidence in the record sufficient to establish the dispute of material fact for trial. Celotex,
477 U.S. at 321‒23. The nonmovant must “go beyond the pleadings and by her own
affidavits, or by depositions, answers to interrogatories and admissions on file, designate
specific facts showing that there is a genuine issue of material fact for trial.” Giles v. Gen.
Elec. Co., 245 F.3d 474, 493 (5th Cir. 2001) (citing Celotex, 477 U.S. at 324). “This burden
will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertion, or by only a scintilla of evidence.’” Jurach v.
Safety Vision, L.L.C., 642 F. App’x 313, 317 (5th Cir. 2016) (quoting Boudreaux v. Swift
Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)).
ANALYSIS
The Court concludes that there is a genuine issue of material fact in the record that
precludes summary judgment as a matter of law.
In his pending motion Nunez asserts the defense of qualified immunity to this
action. In civil rights actions in which the non-movant is suing a government official, the
issue of qualified immunity alters the summary judgment analysis. Brown v. Callahan, 623
F.3d 249, 253 (5th Cir. 2010). If the defense of qualified immunity is raised, the burden
shifts to the non-movant to rebut it. Id. All inferences are still drawn in the non-movant’s
favor. Id.
“The qualified immunity defense has two prongs: whether an official’s conduct
violated a statutory or constitutional right of the plaintiff; and whether the right was clearly
established at the time of the violation.” Id. For the right to have been clearly established
for purposes of qualified immunity, the contours of the right must have been sufficiently
clear that a reasonable official would have understood that what he was doing violated that
right. Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008). The unlawfulness of the official’s
actions must have been readily apparent from sufficiently similar situations, though there
need not have been commanding precedent holding the very action in question unlawful.
Id. at 236–37. The first prong of the qualified immunity analysis is governed by current
law, while the second prong is governed by the law as it was clearly established at the time
of the conduct in question. Petta v. Rivera, 143 F.3d 895, 899–900 (5th Cir. 1998). The
legal standards can, and sometimes will, conflict, but both prongs must be satisfied. Id.
A. The video and the Court’s prior Graham analysis
The Fourth Amendment guarantees the right to be free from excessive force during
an arrest. Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). To succeed on
the merits of a Fourth Amendment claim, “a plaintiff must demonstrate (1) an injury, which
(2) resulted directly and only from the use of force that was clearly excessive to the need;
and the excessiveness of which was (3) objectively unreasonable.” Jackson v. Gautreaux,
3 F.4th 182, 186 (5th Cir. 2021) (quoting Hutcheson v. Dallas County, 994 F.3d 477, 480
(5th Cir. 2021)).
“Excessive force claims are necessarily fact-intensive; whether the force used is
‘excessive’ or ‘unreasonable’ depends on ‘the facts and circumstances of each particular
case.’” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)). In assessing the reasonableness of the officers’ actions,
the courts look to the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether the suspect is actively resisting
arrest or attempting to flee. Graham, 490 U.S. at 396. Courts also “consider ‘the
relationship between the need [for force] and the amount of force used.’” Betts v. Brennan,
22 F.4th 577, 582 (5th Cir. 2022) (alterations in original). “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.” Graham, 490 U.S. at 396.
The Court previously applied Graham to the facts of this case as alleged by
Benavides and, based on that analysis, denied Nunez’s motion for judgment on the
pleadings. (Dkt. 75). On this summary judgment record, the Court sees no reason to
reconsider its conclusion that Nunez is not entitled to qualified immunity.
Nunez argues that the Court’s previous analysis of the Graham factors, in light of
the summary judgment evidence, “is wrong.” (Dkt. 81 at 24). To the contrary, Nunez’s
application of the summary judgment standard is wrong, as his analysis of the Graham
factors relies wholly on his (the movant’s) version of the facts and evidence and ignores
Benavides’s (the non-movant’s) version—including Benavides’s eminently reasonable
interpretation of Nunez’s own body camera footage.
According to Nunez, the evidence shows that “this is clearly not a case of excessive
force but an accident.” (Dkt. 81 at p. 26). Nunez contends that
[t]here is no dispute that he reached for the door with his right hand, and moved the
gun to his non-dominant left hand. It can be seen on the video. When the door
suddenly opened, his weapon accidentally discharged.
Dkt. 81 at p. 22.
The Court disagrees with Nunez that his body camera footage conclusively
establishes that the shooting was accidental. The body camera footage shows that Nunez
had both hands on his weapon when he fired it. One could reasonably view the footage as
showing that Nunez was deliberately aiming his weapon, intending to shoot whoever was
behind the door. Since there are at least two different reasonable ways to view the body
camera footage—and since at least one of those ways supports Benavides’s account of the
shooting—the Court will not “play[] junior-varsity jury” and will let an actual jury decide
which view of the footage is the correct one. See Spiller v. Harris County, Texas, 113 F.4th
573, 582 (5th Cir. 2024) (Willett, J., concurring).
The fact that Benavides’s view of the video is reasonable also renders unavailing
Nunez’s reliance on Bryant v. Gillem, 965 F.3d 387 (5th Cir. 2020). In Gillem, dashcam
footage showed a deputy approaching a suspect who was on the ground in the grass. Id. at
390. The deputy put his pistol into his left hand and drove his right knee into the suspect’s
back. Id. Still holding the firearm with his left hand and reaching with his right for the
suspect’s hands, the deputy shot the suspect in his left shoulder. Id. The Fifth Circuit
affirmed the district court’s grant of summary judgment in favor of the deputy, holding that
the district court was correct in concluding that the summary judgment record contained
“no competent summary judgment evidence reasonably showing that [the deputy’s] failure
to holster his firearm and his discharge of the firearm were intentional acts.” /d. at 392
(quotation marks omitted).
Gillem is distinguishable. According to the Fifth Circuit’s description of the video
in that case, “there [wa]s no fact dispute that [the deputy] unintentionally kept his firearm
in his hand as he sought to restrain [the plaintiff].” /d. at 393. Here, by contrast, a person
viewing Nunez’s body camera footage could reasonably conclude that Nunez intentionally
drew his weapon, intentionally aimed it with both hands, and intentionally fired it at
Benavides. And the mere fact that Nunez may have believed Benavides was an intruder
does not justify shooting him “without warning” or “sufficient time to respond.” Cole v.
Carson, 935 F.3d 444, 449 (Sth Cir. 2019) (en banc).
CONCLUSION
There is a genuine issue of material fact about whether Nunez shot Benavides
intentionally or accidentally. This fact will determine whether Nunez violated the Fourth
Amendment and ultimately whether he is entitled to qualified immunity. Therefore,
summary judgment cannot be granted as a matter of law. Nunez’s motion is DENIED.
SIGNED at Houston, Texas on September 30, 2024.
UNITED STATES DISTRICT JUDGE
8/8