Salinas v. City of Houston

Case: 23-20617 Document: 123-1 Page: 1 Date Filed: 05/23/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

____________ Fifth Circuit

FILED

No. 23-20617 May 23, 2025

____________ Lyle W. Cayce

Clerk

Brittany Salinas; Nelda Cordova Salinas,

Plaintiffs—Appellants,

versus

City of Houston; Officer M. Salazar; Officer N.

Garcia,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:22-CV-4120

______________________________

Before Elrod, Chief Judge, Higginbotham, and Southwick,

Circuit Judges.

Patrick E. Higginbotham, Circuit Judge:

Houston police officers Manual Salazar and Nestor Garcia, members

of the Gang Division Crime Reduction Unit, fatally shot David Anthony

Salinas on July 14, 2021, following a pursuit in a sting operation. His widow

Brittany Salinas brings this suit against Officers Salazar and Garcia and the

City of Houston, asserting claims under 42 U.S.C. § 1983, the Texas Tort

Claims Act, and the state-created danger theory of constitutional liability.

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The district court granted Defendants’ motion to dismiss in full. We

AFFIRM.

I.

The facts described below are based on Plaintiff-Appellants’ Second-

Amended Complaint and attached exhibits, which include body-worn camera

(“BWC”) footage from Officers Garcia and Salazar, and the Affidavit of

Jason De La Cruz, a friend of David Salinas. 1

In the early evening of July 14, 2021, Houston Police Officers Manuel

Salazar and Nestor Garcia (collectively, “the Officers”) were on patrol when

they received a dispatch call with vehicle information, including vehicle type

and plate number. 2 At this time, David Anthony Salinas (“Salinas”) was

going home after stopping at a gas station and was on the phone with his

friend, Jason De La Cruz. Upon locating the vehicle, a Nissan, the Officers

turned on their lights. 3 When Salinas did not pull over for 20 seconds, a high-

speed chase ensued, ending when Salinas crashed into a cement pillar of a

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1

The district court, in its November 2023 memorandum opinion and order,

declined to consider BWC footage from the Officers’ body cameras, stating: “The court

may not look beyond the pleadings in ruling on a 12(b)(6) motion.” But this Court has held

that “on a motion to dismiss, the court is entitled to consider any exhibits attached to the

complaint, including video evidence.” Beroid v. LaFleur, No. 22-30489, 2023 WL 3034706,

*5 (5th Cir. Apr. 21, 2023). See also Villareal v. Wells Fargo Bank, N.A., 814 F.3d 763, 766

(5th Cir. 2016). Plaintiff-Appellants attached BWC footage from Officers Salazar and

Garcia, as well as the Affidavit of De La Cruz, to their Second-Amended Complaint. We

consider them all on appeal.

2

BWC footage from Officer Salazar shows that the Officers received vehicle

information. At 0:02:40 of the video, Officer Garcia asks: “What kind of car is it?” Officer

Salazar responds: “It’s … Frank X-Ray John. I think it’s a Nissan. Check—I ran it I think.”

3

BWC footage from Officer Salazar at 0:03:59 shows the Officers saying: “Alright,

we’re lighting him up” before engaging their lights. At 0:04:07, the Officers say: “He’s

refusing to stop.” At 0:04:14, the Officers repeat: “He’s refusing to stop.” At 0:04:21, the

Officers say again that Salinas is “refusing to stop.”

2

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freeway underpass. The Nissan was disabled with significant front-end

damage, a cracked windshield, and a deployed airbag.

The Officers parked their cruiser next to Salinas’ driver-side door,

preventing Salinas from exiting the car, jumped from the cruiser, and

surrounded Salinas’ car with their weapons drawn and pointed at Salinas.

Salinas, at this point, appeared to be in the passenger seat. Officer Salazar

stood by the driver-side door of Salinas’ vehicle while Officer Garcia stood

near the passenger-side door.

Officer Salazar shouted commands for Salinas to show his hands,

yelling: “Let me see your hands! Let me see your hands! Let me see your

hands! Hey! Hands! Hands! Hands! Hands! Let me see your hands!” Officer

Garcia also shouted at Salinas: “Hey let me see your hands! Hands! Hands!

Hands! Hands! Hands! Hands! Let me see your f--king hands! Hands! Let

me see your hands!” Officer Garcia knocked on the windshield several times

as he was shouting the commands. Officer Salazar then radioed in for

assistance.

During this interaction, as Salinas moved around from side to side and

raised and lowered his hands intermittently, Officer Salazar shouted: “Hey!

Stop reaching! Stop reaching! Stop reaching!”, and shouted to Officer

Garcia: “Hey, watch the crossfire!” before again shouting at Salinas to “stop

reaching.” At the same time, Officer Garcia yelled: “He’s reaching, he’s

reaching!” Officer Garcia then shouted at Salinas: “Let me see your hands!

Stop reaching motherf--ker! Stop—your hands! Hands! Hands! Against the

door! Against the door! Stop your f--king hands!”

Officer Salazar shouted at Salinas: “Hey! Let me see your hands!

Hands! Hands! Hands! Hands! Hands! Keep them up! Keep them up!”

When Salinas again began reaching, with his hands disappearing from the

Officers’ view, Officer Salazar shouted: “Keep—he’s reaching! He’s

3

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reaching! Hey! He’s reaching!” De La Cruz, who was still on the phone with

Salinas at the time, stated that he heard Salinas telling the Officers: “Don’t

shoot, I am looking for my phone.”

As Salinas appeared to reach for something behind the driver’s seat of

his vehicle, leaning over the center console, Officer Salazar took a few steps

back before firing at Salinas. Officer Garcia similarly stepped back from the

car and fired through the passenger-side of the windshield. The Officers fired

11-12 rounds at Salinas. At no point did the Officers see Salinas wield a gun.

After firing, Officer Salazar radioed: “Shots fired. Shots fired,” and reported

the incident. When backup arrived, medical aid was rendered.

In sum, both Officers shouted multiple warnings at Salinas to comply

before firing their weapons. In total, Officer Salazar yelled “show me your

hands” or “hands” to Salinas at least fourteen times and shouted “stop

reaching” to Salinas at least four times. Officer Garcia shouted “let me see

your hands” or “hands” to Salinas at least fifteen times and yelled “stop

reaching” or “he’s reaching” at least three times. It signifies that from the

moment the Officers jumped out of their cruiser to the first firing of shots, 38

seconds had elapsed.

II.

Brittany Salinas (“Brittany”) filed suit in June 2023, in the United

States District Court of the Southern District of Texas, 4 asserting claims

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4

Nelda Córdova Salinas, Salinas’ mother, and the Estate of David Anthony Salinas

were also named plaintiffs in the complaint. After Defendant-Appellees jointly argued that

Plaintiff-Appellants lacked standing to bring claims, the district court dismissed Nelda

Córdova Salinas and the Estate of David Anthony Salinas from the suit. Because their

dismissals are not challenged on appeal, these claims are forfeited, see Rollins v. Home Depot

USA, 8 F.4th 393, 397 (5th Cir. 2021), and Brittany Salinas is the only remaining Plaintiff-

Appellant on appeal. We focus our analysis on Brittany Salinas and her claims.

4

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against Officer Salazar, Officer Garcia, and the City of Houston under 42

U.S.C. § 1983, the Texas Tort Claims Act, and the state-created danger

theory of constitutional liability. 5

Defendants argued that Brittany lacked standing to bring her claims

and moved to dismiss all claims under FED. R. CIV. P. 12(b)(6). Though the

district court found that Brittany had standing, it ultimately granted the

motion and dismissed Brittany’s claims with prejudice, concluding that the

Officers were entitled to qualified immunity, and the claims against Houston

were meritless. Brittany timely appealed.

III.

This Court reviews de novo a district court’s grant of a motion to

dismiss under Rule 12(b)(6), 6 accepting all well-pleaded facts as true and

viewing those facts in the light most favorable to the plaintiff, 7 mindful that

“the court is entitled to consider any exhibits attached to the complaint,

including video evidence.” 8 To avoid dismissal, “a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is

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5

The claims before this court are made in Plaintiff-Appellant’s Second-Amended

Complaint. On appeal, Plaintiff-Appellants have forfeited their claims under the state-

created danger theory, claims regarding the Officers’ failure to render medical aid to

Salinas, and their TTCA claims against the Officers because they do not raise them in their

briefs. See Rollins, 8 F.4th at 397.

6

Butts v. Aultman, 953 F.3d 353, 357 (5th Cir. 2020).

7

See Alexander v. City of Round Rock, 854 F.3d 298, 303 (5th Cir. 2017).

8

Beroid, No. 22-30489, 2023 WL 3034706 at*5. See also Villareal, 814 F.3d at 766.

As mentioned in n.1, this Court is permitted to review the BWC footage of Officers Salazar

and Garcia, despite the district court’s declining to do so. This Court is also permitted to

consider De La Cruz’s affidavit.

5

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plausible on its face.” 9 A claim is facially plausible “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” 10

IV.

On appeal, the City and the Officers continue to maintain that Brittany

did not meet the demands of the Texas Survival Statute. 11 This Court,

however, has made clear that “a party must have standing under the state

wrongful death or survival statutes to bring [claims] under 42 U.S.C. [§

1983].” 12 Brittany, as the surviving spouse of Salinas, has sufficiently pleaded

facts to establish standing to sue under the Texas Wrongful Death Statute,

which provides a cause of action for the benefit of the surviving spouse,

children, and parents of the deceased. 13 As such, we find that Brittany has

standing to bring her claims, and need not reach her standing under the Texas

Survival Statute. 14

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9

Butts, 953 F.3d at 357 (quoting Masel v. Villarreal, 924 F.3d 734, 743 (5th Cir.

2019)).

10

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)).

11

See TEX. CIV. PRAC. &. REM. CODE § 71.021(b).

12

Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir. 2004) (emphasis added).

13

The Texas Wrongful Death Statute provides “an action to recover damages as

provided by this subchapter is for the exclusive benefit of the surviving spouse, children,

and parents of the deceased.” TEX. CIV. PRAC. & REM. CODE § 71.004(a).

14

This is not to infer that Brittany’s standing lacks force under the Texas Survival

Statute, which states that “[a] personal injury action survives to and in favor of the heirs,

legal representatives, and estate of the injured person.” TEX. CIV. PRAC. & REM. CODE §

71.021(b). The district court noted—and Brittany pleaded—that Brittany is the surviving

spouse of Salinas and the Executrix (or Administrator) of the Estate of David Anthony

Salinas. Brittany also included information about the probate court proceedings in her

complaint, and we take judicial notice of the fact that Brittany was appointed as

Administrator of the Estate of David Anthony Salinas in July 2022, Estate of David Anthony

6

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V.

As to the Officers, Brittany argues that the district court erred when

it dismissed her § 1983 claims against Officers Salazar and Garcia, asserting

that Salinas’ Fourth Amendment rights were violated, and that his rights

were clearly established. As we find no constitutional violation, we find no

error and end our analysis here. The Officers are entitled to qualified

immunity.

A.

“Under the doctrine of qualified immunity, government officials

performing discretionary functions generally are shielded 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.” 15 When reviewing a motion to dismiss based on the affirmative

defense of qualified immunity, courts engage in a two-part inquiry “asking:

first, whether taken in the light most favorable to the party asserting the

injury . . . the facts alleged show the officer’s conduct violate a constitutional

right; and second, whether the right was clearly established.” 16 And, “judges

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Salinas, No.505036 (Prob. Ct. No. 2, Harris County, Tex. July 18, 2022), and took an Oath

of Administratrix in September 2022, Id. at (Prob. Ct. No. 2, Harris County, Tex.

September 21, 2022). Norris v. Hearst Tr., 500 F.3d 454, 461 n.9 (5th Cir. 2007) (“[I]t is

clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters of public

record.”); United States v. Herrera-Ochoa, 245 F.3d 495, 501 (5th Cir. 2001) (“An appellate

court may take judicial notice of facts, even if such facts were not noticed by the trial

court.”). See also FED. R. EVID. 201. Brittany has pleaded “sufficient factual matter” to

prove standing under the Texas Survival Statute for her claims. Butts, 953 F.3d at 357

(citation omitted).

15

Aguirre v. City of San Antonio, 995 F.3d 395, 406 (5th Cir. 2021) (cleaned up)

(citation omitted).

16

Byrd v. Cornelius, 52 F.4th 265, 271 (5th Cir. 2022). See also Beroid, No. 22-30489,

2023 WL 3034706, at *4 (applying qualified immunity analysis to a motion to dismiss).

7

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of the district courts and the courts of appeals should be permitted to exercise

their sound discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in

the particular case at hand.” 17

B.

Brittany argues that Salinas’ Fourth Amendment rights were violated,

alleging an unlawful detention claim and an excessive force claim. We address

each in turn, looking first at Brittany’s unlawful detention claim. Specifically,

she asserts that the Officers’ attempted stop and subsequent pursuit of

Salinas were unlawful detentions that violated Salinas’ Fourth Amendment

rights because the Officers lacked probable cause.

1.

“The Supreme Court has defined probable cause as the ‘facts and

circumstances within the officer’s knowledge that are sufficient to warrant a

prudent person, or one of reasonable caution, in believing, in the

circumstances shown, that the suspect has committed, is committing, or is

about to commit an offense.’” 18 The facts must be known to the officer at the

time of the seizure, and must be particularized to the detainee. 19

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17

Pearson v. Callahan, 555 U.S. 223, 236 (2009). We note that the district court

here skipped to the second prong of the two-part inquiry and held that the Officers were

entitled to qualified immunity because Brittany Salinas did not sufficiently show that

Salinas’ allegedly violated rights were clearly established. Under de novo review, we affirm

the district court but find that the Officers are entitled to qualified immunity under the first

prong: Salinas did not suffer a constitutional injury.

18

Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009) (quoting Piazza v.

Mayne, 217 F.3d 239, 245-46 (5th Cir. 2000)).

19

Id.

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But even in the absence of probable cause, “[t]he police can stop and

briefly detain a person for investigative purposes if the officer has a

reasonable suspicion . . . that criminal activity may be afoot[.]” 20 Reasonable

suspicion requires the consideration of the totality of the circumstances, and

“must be supported by particular and articulable facts, which, taken together

with rational inferences from those facts, reasonably warrant an intrusion.” 21

An officer must articulate something more than an “inchoate and

unparticularized suspicion or hunch.” 22

2.

Brittany asserts that the Officers lacked probable cause to detain

Salinas because he was not in violation of any known law at the time. She

alleges that Salinas was driving home from the gas station when the police

pursuit occurred, that he was “randomly selected for no apparent reason

other than he was at the wrong place at the wrong time,” that he was not a

“fleeing” suspect, 23 and that BWC footage does not show that identifying

information on Salinas was transmitted through radio dispatch. 24

We find, however, that the Officers had—at the very least—

reasonable suspicion to detain Salinas. Contrary to Brittany’s assertions,

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20

United States v. Neufeld-Neufeld, 338 F.3d 374, 378 (5th Cir. 2003).

21

United States v. Michelletti, 13 F.3d 838, 840 (5th Cir. 1994) (en banc).

22

United States v. Sokolow, 490 U.S. 1, 7 (1989) (cleaned up).

23

To support this argument, Brittany points to De La Cruz’s Affidavit to assert

that Salinas was not aware that he was being pursued by the Officers, and therefore was not

fleeing. This assertion, however, cannot be considered by this Court because it is

speculative. Twombly, 550 U.S. at 555.

24

Relatedly, Brittany argues that there are “facts in the record casting doubt on

whether a reasonable officer would have concluded that the man who crashed his car

underneath the freeway overpass was the same one who the VICE division wanted for

questioning.”

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BWC footage from Officer Salazar shows that the Officers had information

on a vehicle partially matching Salinas and that they had previously run his

license plate in their system, that Salinas did not pull over after the Officers

engaged their lights, and that the Officers reported to dispatch multiple times

that Salinas was “refusing to stop” over the course of 20 seconds. 25 And

Brittany’s pleadings further undermine her argument that Salinas was not

“fleeing[,]” as Brittany admits that there was a police “pursuit” and a police

“chase” of Salinas’ car.

Taken together, these factors—the Officers’ knowledge of identifying

information on Salinas’ vehicle, coupled with the context of a sting operation

and Salinas’ refusal to stop—provide sufficient “particular and articulable

facts” to warrant reasonable suspicion. 26

C.

Brittany also raises an excessive force claim, arguing that the Officers

used “unwarranted deadly force” when they shot and killed Salinas following

the pursuit and crash of his vehicle. In doing so, she emphasizes De La Cruz’s

affidavit, asserting that the district court erred when it disregarded it and

failed to give full weight to all available evidence.

1.

The Fourth Amendment “protects the right to be free from excessive

force during a seizure. A violation of this right occurs when a seized person

suffers an injury that results directly and only from a clearly excessive and

objectively unreasonable use of force.” 27 Assessing whether an officer’s use

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25

See supra n.3.

26

Michelletti, 13 F.3d at 840.

27

Joseph on behalf of Est. of Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020).

10

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of force was excessive is “necessarily [a] fact-intensive” endeavor that

“depend[s] on the facts and circumstances of each particular case.” 28 “In

making this determination, a court should consider the totality of the

circumstances, ‘including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade arrest by

flight.’” 29 These are the now twenty-seven-year-old Graham factors. 30

Additionally, 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.” 31 A court’s inquiry must allow “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.” 32

2.

Viewing the facts in the light most favorable to Brittany, 33 we find that

she has not alleged a plausible claim of excessive force. 34 As we explained,

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28

Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012) (citation omitted).

29

Amador v. Vasquez, 961 F.3d 721, 727-28 (5th Cir. 2020) (quoting Graham v.

Connor, 490 U.S. 386, 396 (1989)).

30

Graham, 490 U.S. at 396.

31

Amador, 961 F.3d at 728.

32

Id. (quoting Darden v. City of Fort Worth, 880 F.3d 722, 729 (5th Cir.), cert. denied

sub nom. City of Fort Worth v. Darden, 139 S. Ct. 69, 202 L.Ed.2d 23 (2018)).

33

See Alexander, 854 F.3d at 303.

34

Applying the Graham factors to the case at hand, we note here that there are

limited facts available to determine the severity of the crime here. As we find that the other

two Graham factors weigh in favor of justifying the Officers’ use of deadly force against

Salinas, we focus our analysis there.

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Salinas was “attempting to evade arrest by flight.” 35 And, Brittany’s

pleadings and the Officers’ BWC footage provide sufficient support for a

reasonable officer’s belief that Salinas posed an immediate threat of harm

when the Officers fired their weapons. 36

First, it is undisputed that the Officers did not deploy deadly force

immediately, but only after Salinas continually disregarded their commands

and began continuously reaching within his vehicle. The Officer’s BWC

footage shows that the Officers—in total—commanded Salinas to show his

hands at least 30 times and to stop reaching at least seven times. Though

Brittany asserts—using De La Cruz’s Affidavit—that Salinas was injured

and disoriented after crashing his car and likely did not hear the Officers’

commands, these details, at best, are speculation upon Salinas’ state of

mind. 37

Second, the Officers did not shoot at Salinas until after he began

reaching within his vehicle. Brittany argues that the Officers did not see

Salinas with a gun, and that he reached within his vehicle to find his cell

phone. Perhaps, but “officers use lethal force justifiably if they reasonably

believe the individual is reaching for a gun . . . even in cases when officers had

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35

Graham, 490 U.S. at 396. See also Op. at Section V(B).

36

See Graham, 490 U.S. at 396.

37

See Twombly, 550 U.S. at 555. Furthermore, Brittany Salinas’ assertion that

Salinas likely did not register the Officers’ commands given the “high noise level

underneath the freeway overpass” is undermined by De La Cruz’s statements and Plaintiff-

Appellant’s own admissions in her Second-Amended Complaint. In his affidavit, De La

Cruz stated that he heard the Officers yelling: “stop moving, stop moving your hands!”

over the phone. Furthermore, Brittany Salinas admits in her Second-Amended Complaint

that Salinas held “his hands up on several occasions for a few seconds at a time” and

“moved around from side to side” while the Officers were issuing commands. The

Officers’ BWC footage independently confirms this, indicating that Salinas registered

their commands to keep his hands up.

12

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not yet seen a gun when they fired, or when no gun was ever found at the

scene.” 38 The Officers did not violate Salinas’ Fourth Amendment right to

be free from excessive force.

D.

In the alternative, Brittany asserts that that the district court abused

its discretion when it denied leave to amend her Second-Amended

Complaint under FED. R. CIV. P. 15(a). Though leave to amend under Rule

15(a) is to be freely given, “[d]enying a motion to amend is not an abuse of

discretion if allowing an amendment would be futile.” 39 Here, Brittany has

already amended her complaint twice, and in her motion for leave to replead

a third time, did not explain how she would amend her pleadings to cure

defects. We affirm the district court’s denial. 40

VI.

As to the City of Houston, Brittany Salinas argues that the district

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38

Cloud v. Stone, 993 F.3d 379, 387 (5th Cir. 2021). See also Manis v. Lawson, 585

F.3d 839, 844 (5th Cir. 2009) (discussing several cases in which this Court had “found an

officer’s use of deadly force to be reasonable when a suspect moves out of the officer’s line

of sight such that the officer could reasonably believe the suspect was reaching for a

weapon.”). Though Defendant-Appellees also assert that Salinas “actually had a gun under

the seat[,]”we need not to consider it in our analysis. Here, it is enough that the Officers

saw Salinas reaching in his vehicle and reasonably believed that he was reaching for a gun,

especially as he did not cease his movements on command.

39

Strickland v. Bank of New York Mellon, 838 F. App’x 815, 821 (5th Cir. 2020)

(quoting Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir.

2014)).

40

This Court has affirmed a district court’s denial of leave to amend for similar

reasons. See Strickland, 838 F. App’x at 821; Goldstein v. MCI Worldcom, 340 F.3d 238, 255

(5th Cir. 2003) (finding no abuse of discretion when the plaintiff did not proffer a proposed

second amended complaint to the district court, and did not suggest in their responsive

pleadings any additional facts not initially plead that could, if necessary, cure the pleading

defects raised by the defendants).

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court erred when it dismissed her § 1983 and TTCA claims, asserting that

her pleadings sufficiently establish municipal liability. We disagree.

A.

Brittany first argues that the City of Houston is liable under § 1983,

alleging that two municipal policies led to Salinas’ death, 41 and that

Houston’s failure to establish a policy to investigate and review misconduct

constitutes deliberate indifference.

To establish municipal liability under § 1983, Brittany “must show

that (1) an official policy (2) promulgated by the municipal policymaker (3)

was the moving force behind the violation of a constitutional right.” 42 As

explained, we find no constitutional injury. And, we affirm the dismissal of

the § 1983 claims against the City of Houston.

B.

Brittany also argues that the City of Houston is liable under the

TTCA, asserting that the Officers’ use of government-issued firearms

against Salinas was an act of gross negligence.

Brittany’s claims, however, are foreclosed by our ruling on qualified

immunity. And in any event, they are also barred by this Court’s case law.

Though the TTCA waives Houston’s sovereign immunity for limited claims

of negligence, this Court has held that in determining whether sovereign

immunity has been waived under the TTCA, “[t]he determinative question

is whether the negligence claim arises from the same facts that form the basis

_____________________

41

The two City of Houston policies are: (1) Houston failed to promulgate proper

guidelines for the use of deadly force, and (2) Houston failed to train, supervise, and

discipline officers who use excessive force in making arrests.

42

Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 847 (5th Cir. 2009).

14

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of the intentional-tort claim.” 43 In such cases, sovereign immunity has not

been waived. 44 Here, despite Brittany’s assertions to the contrary, the

Officers’ firing of their weapons at Salinas is “inextricably intertwined with

the intentional tort” of striking Salinas. 45 Because the TTCA does not waive

the City of Houston’s sovereign immunity here, we affirm the district court’s

dismissal of Brittany’s claims.

VII.

For these reasons, we AFFIRM the district court’s dismissal of

Brittany Salinas’ claims against the Officers and the City of Houston.

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43

Pena v. City of Rio Grande City, 879 F.3d 613, 625 (5th Cir. 2018).

44

See id.

45

Id. On appeal, Brittany argues that the Officers’ firing of their weapons at Salinas

constitutes gross negligence, and that “[i]n the context of police shootings, whether it’s

classified as gross negligence or intentional tort would depend on the specific

circumstances and the officers’ intent.” This assertion, however, is unsupported by this

Court’s case law. We also note that Brittany’s own pleadings undermine her claim, as she

states that the Officers “shot the Decedent multiple times at close range with the intent of

causing serious bodily harm of death.”

15