Cordell Davis v. City of Fort Worth

Case: 13-11242 Document: 00512922372 Page: 1 Date Filed: 02/02/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

February 2, 2015

No. 13-11242

Lyle W. Cayce

Clerk

CORDELL DAVIS, Individually; ANTOINETTE TURNER, as next friend for

J.T.T., a minor,

Plaintiffs - Appellants

v.

J. ROMER, in his individual capacity,

Defendant - Appellee

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LESLEE MARIE MARTIN, as next friend for C.T.T., Jr., a minor; ALICIA

DE'SHON WHITE, as next friend for T.L.T., a minor; PATRICIA THOMAS,

as next friend for D.M.G., a minor,

Plaintiffs - Appellants

v.

J. ROMER, Individually and in His Official Capacity,

Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC Nos. 4:13-CV-198 & 4:13-CV-234

Case: 13-11242 Document: 00512922372 Page: 2 Date Filed: 02/02/2015

No. 13-11242

Before STEWART, Chief Judge, BENAVIDES, and OWEN, Circuit Judges.

PER CURIAM:*

Fort Worth Police Officer J. Romer (“Romer”) was attempting to arrest

Charal Thomas (“Thomas”), who was sitting in the driver’s seat of his vehicle.

Although there was a warrant for his arrest, Thomas refused to exit his

vehicle and submit to a lawful arrest. Romer reached inside the driver’s

window, and Thomas suddenly began driving away. Romer then jumped on

the vehicle’s running board and ordered Thomas to stop the vehicle, but

Thomas ignored the order and continued to drive toward the entrance to the

freeway. After Thomas refused to stop the vehicle, Romer, who was still

standing on the running board of the fleeing vehicle, fatally shot Thomas.

Thomas’s four children, three of whom were passengers in Thomas’s vehicle,

and an unrelated passenger brought this suit against Romer, alleging, among

other things, excessive use of force in violation of the Fourth Amendment.

The district court granted summary judgment after determining that Romer

was entitled to qualified immunity. Because we conclude that there was no

constitutional violation in Romer’s use of deadly force, we affirm the district

court’s judgment.

I. FACTUAL AND PROCEDURAL HISTORY

On February 28, 2011, undercover officers observed Thomas leaving a

house that was believed to be involved with drug trafficking. Those officers

then observed Thomas committing traffic infractions while driving and called

uniformed patrol officers to make a traffic stop. Thomas was driving his Ford

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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Expedition in Fort Worth, Texas. His front seat passenger was Cordell Davis

(“Davis”), and three of Thomas’s minor children were seated in the second row.

Officer Romer and Officer C.C. Drew (“Drew”) stopped Thomas based on the

alleged misdemeanor traffic violations. While Thomas waited in the vehicle,

the officers ran his driver’s license through the computer and discovered

outstanding misdemeanor traffic warrants.

Standing by the driver’s door, Drew informed Thomas that they were

going to arrest him and asked him to exit his vehicle. Thomas refused, and

Drew attempted to open the driver’s side door. Romer reached inside the

vehicle through the driver’s side window in an attempt to unlock the door.

With Romer’s arm inside the vehicle, Thomas starting driving to the left

toward the exit of the parking lot and then onto the service road alongside the

freeway. When the vehicle starting moving, Romer jumped on the running

board. Although Romer and Davis were both shouting for Thomas to stop the

vehicle, he continued driving. As the vehicle was traveling on the highway’s

service road, Romer, who was standing on the vehicle’s running board, pulled

his gun from the holster and fatally shot Thomas. Upon hearing the gunshots,

Davis jumped out of the moving vehicle from the passenger side and was

injured as he fell to the ground. The vehicle then came to a stop in the driveway

of a residence along the service road.

In 2013, Davis and Thomas’s four minor children (each acting through a

next friend) brought suit against Romer, individually and in his official

capacity as a police officer, and the City of Fort Worth. The plaintiffs alleged

excessive use of force in violation of the Fourth Amendment pursuant to 42

U.S.C. § 1983 and various state law claims.

Romer moved for summary judgment based on qualified immunity. The

district court agreed and entered summary judgment in favor Romer in his

individual capacity. Additionally, the court sua sponte dismissed without

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prejudice all claims against Romer in his official capacity, stating that those

claims are considered by law to be claims against his employer, the City of Fort

Worth. The court then determined that there was no just reason for delay and

entered final judgment as to Romer. See FED. R. CIV. P. 54(b). The plaintiffs

now appeal that judgment. The district court subsequently granted the City

of Fort Worth’s motion for summary judgment and that case is pending by

separate appeal before this Court. Davis et al. v. City of Fort Worth, No. 14-

10759.

II. ANALYSIS

A. Standard of Review

This Court reviews a grant of summary judgment de novo, applying the

same standards as the district court. Am. Home Assurance Co. v. United Space

Alliance, LLC, 378 F.3d 482, 486 (5th Cir. 2004). “A summary judgment

motion is properly granted only when, viewing the evidence in the light most

favorable to the nonmoving party, the record indicates that there is no genuine

issue as to any material fact, and that the moving party is entitled to judgment

as a matter of law.” Id.; see also FED. R. CIV. P. 56(a).

B. Qualified Immunity from Excessive Force Claim

Appellants contend that the district court erred in granting Romer

summary judgment based on his defense of qualified immunity. “To determine

whether a defendant is entitled to qualified immunity, this Court engages in a

two-pronged analysis, inquiring (1) whether the plaintiff has alleged a

violation of a constitutional right and, if so, (2) whether the defendant’s

behavior was objectively reasonable under clearly established law at the time

the conduct occurred.” Hampton v. Oktibbeha Cnty. Sheriff Dep’t, 480 F.3d

358, 363 (5th Cir. 2007) (citing Easter v. Powell, 467 F.3d 459, 462 (5th Cir.

2006)). “If the plaintiff fails to state a constitutional claim or if the defendant’s

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conduct was objectively reasonable under clearly established law, then the

government official is entitled to qualified immunity.” Id. (citing Easter, 467

F.3d at 462). “Qualified immunity gives government officials breathing room

to make reasonable but mistaken judgments,” and “protects all but the plainly

incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, __

U.S. __, 131 S. Ct. 2074, 2085 (2011) (internal quotation marks and citation

omitted). “Once a defendant invokes qualified immunity, the burden shifts to

the plaintiff to show that the defense is not available.” Kovacic v. Villarreal,

628 F.3d 209, 211 (5th Cir. 2010).

Appellants contend that Officer Romer violated the Fourth Amendment

by using excessive force. The Fourth Amendment guarantees the right to be

free from “unreasonable searches and seizures.” U.S. Const. amend. IV. Here,

it is undisputed that Romer’s use of deadly force against Thomas constituted a

seizure. Accordingly, Appellants “need only show that the use of deadly force

was excessive, and that the excessiveness of the force was unreasonable.”

Thompson v. Mercer, 762 F.3d 433, 437 (5th Cir. 2014) (citations and internal

quotation marks omitted). However, an officer’s use of deadly force is not

unreasonable when the officer has reason to believe that the “suspect poses a

threat of serious harm to the officer or others.” Id. (citations and internal

quotation marks omitted). We must determine the reasonableness of the use

of force “from the perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight.” Plumhoff v. Rickard, __ U.S. __, 134 S. Ct.

2012, 2020 (2014) (citation and internal quotation marks omitted).

Appellants’ principal argument is that Romer’s conduct caused the

dangerous encounter. Specifically, Appellants contend that “Romer’s life was

in danger because of his own intervening actions of attempting not once but

twice, to grab a hold of a moving vehicle when Romer had a choice not to do

so.” Blue brief at 14. Appellants contend that the district court erred in

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interpreting this Court’s precedent to limit its analysis to the circumstances

existing at the moment Romer shot Thomas. Recently, this Court has rejected

the same argument. In Thompson v. Mercer, an officer ended a two-hour high-

speed chase by fatally shooting the suspect with an assault rifle. 762 F.3d at

436. The Thompsons argued that the officers created the danger in their

attempts to intercept the fleeing vehicle driven by the suspect. Id. at 439. This

Court held that such an argument was “wholly without merit,” explaining that

it had “consistently rejected similar reasoning.” Id. at 439–40. This Court

explained that the “question is not whether the force would have been avoided

if law enforcement had followed some other police procedures.” Id. at 440

(citations and internal quotation marks omitted). Instead, the Court explained

that “regardless of what had transpired up until the shooting itself, the

question is whether the officer [had] reason to believe, at that moment, that

there was a threat of physical harm.” Id. (citation and internal quotation

marks omitted) (alteration in original). This Court concluded that it was the

fleeing driver and not the officer “who intentionally placed himself and the

public in danger by unlawfully engaging in the reckless, high-speed flight that

ultimately produced the choice that [the officer] had to make.” Id. (citation and

internal quotation marks omitted) (alteration added). Accordingly, this Court

held that the officer’s shooting of the suspect did not violate the Fourth

Amendment. Id.

In Rockwell v. Brown, police officers were called because a mentally ill

individual had threatened suicide and barricaded himself in his room. 664

F.3d 985, 989 (5th Cir. 2011). The individual refused to leave the room, and

the officers decided that because he was a threat to himself and his family,

they were going to arrest him. Id. When the officers breached the bedroom

door, the individual was wielding two eight-inch knives and rushed out of his

room toward the officers. The officers fatally shot him. Relying on precedent

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from other circuits, the decedent’s family asked this Court to consider the

circumstances surrounding the breach of the bedroom door in determining the

reasonableness of the officers’ use of deadly force. Id. at 992. This Court found

the argument unavailing, explaining that at the time the officers used deadly

force, the decedent was armed, and the officers had a reasonable belief that he

posed an imminent risk of serious harm. Id. at 993. Indeed, this Court stated

that “[w]e need not look at any other moment in time.” Id.; see also Harris v.

Serpas, 745 F.3d 767, 772 (5th Cir. 2014) (explaining that “any of the officers’

actions leading up to the shooting are not relevant for the purposes of an

excessive force inquiry in this Circuit”).

Additionally, in Fraire v. City of Arlington, a police officer fatally shot

the driver of a truck that was headed toward the officer. 957 F.2d 1268 (5th

Cir. 1992). The plaintiffs alleged that the officer may not have followed

established police procedure in identifying himself while in plain clothes. Id.

at 1275. The gist of their argument was that the officer’s failure to follow

procedure “manufactured the circumstances that gave rise to the fatal

shooting.” Id. This Court explained that “regardless of what had transpired

up until the shooting itself, [the suspect’s] movements gave the officer reason

to believe, at that moment, that there was a threat of physical harm.” Id. at

1276. Thus, the force was not excessive and the officer was entitled to qualified

immunity.

Appellants recognize the above precedent and seek to distinguish it,

stating that Davis and the minor children testified that Romer’s arm was not

trapped in the window as Romer claims. Brief at 13. Appellants asserted at

oral argument that Romer should have made the “better decision . . . to let

[Thomas] go.” Appellants argue that Romer caused the danger by jumping on

the running board of the vehicle. In other words, their argument is that

instead of jumping on the vehicle Romer should have moved away from the

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fleeing vehicle. Appellants’ argument that the “officer[ ] could have moved

away from the car is, unfortunately, a suggestion more reflective of the ‘peace

of a judge’s chambers’ than of a dangerous and threatening situation on the

street.” Ramirez v. Knoulton, 542 F.3d 124, 130 (5th Cir. 2008) (quoting Elliott

v. Leavitt, 99 F.3d 640, 643 (4th Cir. 1996)). Viewing the evidence in the light

most favorable to Appellants, there is testimony that Romer removed his arm

from the window after Thomas began driving toward the service road.

Nonetheless, this does not constitute a genuine issue of material fact because

Appellants’ brief concedes that Romer’s arm was inside the vehicle at the time

Thomas began driving away. Brief at 17. Moreover, the evidence, including

Davis’s testimony, demonstrates that Thomas’s driving away with Romer’s

arm inside the vehicle and Romer subsequently jumping on the vehicle’s

running board occurred very rapidly. Under such chaotic, dangerous

circumstances, Appellants have not shown that Romer’s conduct was

objectively unreasonable. As previously discussed, the definitive question is

whether Romer had a reasonable belief that Thomas posed a risk of serious

harm at the time Romer used deadly force. Appellants have conceded that

Romer was on the running board of the fleeing vehicle when he fired the fatal

shots. We therefore conclude that at the time of the shooting, Romer had

reason to believe that there was a serious threat of physical harm to him. 1

Nonetheless, Appellants argue that Romer did not kill Thomas in an act

of self-preservation. Instead, Appellants claim Romer’s “actions were

motivated by a violent and sadistic rage to kill Charal Thomas when he left the

scene of a traffic stop.” Id. at 10. However, the “reasonableness inquiry is

1 Appellants point out that Romer knew that Thomas was an amputee with only one

leg and thus could not elude the officers once the vehicle was stopped. Brief at 16. However,

that does not change the fact that Romer was at serious risk of harm when he used deadly

force while traveling down the service road on the running board.

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objective: the 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.” Rockwell, 664 F.3d at 991

(citation and internal quotation marks omitted). Thus, Romer’s subjective

intent is irrelevant to the reasonableness determination.

Appellants further attempt to distinguish the above-discussed

precedent, stating that unlike those cases, in the instant case, Thomas was

unarmed. The Supreme Court has held that it is constitutionally unreasonable

to use deadly force on an unarmed suspect by shooting him while he was fleeing

on foot. Tennessee v. Garner, 471 U.S. 1 (1985). This is because the officer

“could not reasonably have believed” that the suspect “posed any threat,” and

the officer “never attempted to justify his actions on any basis other than the

need to prevent an escape,” Id. at 21. That case is inapposite. Here, the

testimony and the diagram of the scene demonstrate that Romer was standing

by the driver’s door when Thomas suddenly drove to the left with Romer’s arm

inside the vehicle. Moreover, it is undisputed that Romer was standing on the

running board of the vehicle as it was being driven on the service road and

headed toward the freeway. Clearly, Thomas’s actions put the officer in harm’s

way, and there was a very real danger that Romer would sustain serious injury

or death. Thus, unlike in Garner, Thomas’s actions were posing a threat to

Romer at the time of the shooting.

Additionally, Appellants contend that the force was unjustified because

the warrants for Thomas’s arrest were for outstanding misdemeanor traffic

violations and not for the commission of any felony. Brief at 16. This Court

has rejected just such an argument, explaining that the important question is

whether the suspect is “dangerous or benign” and “not whether the suspect is

suspected of committing a felony or a misdemeanor.” Fraire, 957 F.2d at 1276

n.29. Appellants also point to the fact that Romer fired 12 rounds as opposed

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to a single shot in self-defense. Blue brief at 13-14 (citing Fraire, 957 F.2d

1275). The Supreme Court has rejected the argument that an officer’s firing of

15 rounds constituted excessive force because “if police officers are justified in

firing at a suspect in order to end a severe threat to public safety, the officers

need not stop shooting until the threat has ended.” Plumhoff, 134 S. Ct. at

2022.

Accordingly, because Romer’s use of force was objectively reasonable,

Appellants have not shown a Fourth Amendment violation. Thus, Appellants

cannot show that Romer’s use of deadly force was objectively unreasonable

under clearly established law at the time the incident occurred. Cf. Brosseau

v. Haugen, 543 U.S. 194 (2004) (per curiam) (holding that a police officer did

not violate clearly established law when she fired at a fleeing vehicle to prevent

possible harm to others in the immediate area). The district court properly

granted summary judgment as to the Fourth Amendment claim based on

qualified immunity.

C. Qualified Immunity from State Law Claims

The district court ruled that Romer was entitled to qualified immunity

under Texas state law with respect to the state law claims. Romer asserts that

Appellants have abandoned their state law claims by failing to address them

in their opening brief. 2 Appellants do not address the district court’s

disposition of their state law claims in their brief. Thus, Appellants have

abandoned any state law claims. Yohey v. Collins, 985 F.2d 222 (5th Cir. 1993).

2 Romer also asserts that Appellants’ claims against him in his official capacity have

been abandoned because Appellants did not brief them. Red brief at 27. On October 15,

2013, the district court sua sponte dismissed without prejudice the claims against Romer in

his official capacity and stated that those claims are considered by law to be claims against

his employer, City of Fort Worth. As previously mentioned, the separate appeal involving

the City of Fort Worth is separately pending before this Court. Davis et al. v. City of Fort

Worth, No. 14-10759.

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D. Conclusion

For the above reasons, the judgment of the district court is AFFIRMED.

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