Harris County, Texas G. Young D. Gehring and J. Cavitt v. Shirley Nagel, Individually and as Representative of the Estate of Joel Don Casey

Appellants’ Motion for En Banc Reconsideration Denied as Moot; Opinion

of June 7, 2011 Withdrawn; Affirmed, and Substitute Opinion filed August 25,

2011.

In The

Fourteenth Court of

Appeals

___________________

NO. 14-09-00780-CV

___________________

Harris County, Texas; G. Young; D. Gehring;

and J. Cavitt , Appellants

V.

Shirley Nagel, Individually and as

Representative of the Estate of Joel Don Casey , Appellee

On

Appeal from the 11th District Court

Harris County,

Texas

Trial Court Cause No. 2007-08301

SUBSTITUTE OPINION

After

considering the appellants’ motion for en banc reconsideration, our judgment in

this case remains unchanged; however, to address the points raised in the

motion, we withdraw our opinion of June 7, 2011 and issue

this substitute opinion in its place. We deny the motion as moot.

In this

civil-rights action, plaintiff Shirley Nagel, individually and as

representative of the estate of her son Joel Don Casey, sued Harris County and

members of the mental-health warrants division of the Precinct One Constable’s

office. A jury found the County and three deputy constables liable for $3

million in damages. The defendants ask us to reverse the judgment because the

deputies are entitled to qualified immunity, and because the evidence is

legally insufficient to sustain the judgment against the County. Because the

record supports the conclusions that (a) the deputies are not entitled to

qualified immunity, and (b) Constable Jack Abercia ratified his deputies’ unconstitutional

use of excessive force, we affirm.

I. Background

On Joel Don Casey’s 52nd birthday, deputy

constables from Harris County Precinct One arrived at the home he shared with

his mother, Shirley Nagel, to transport him to a psychiatric facility. Because

Casey had thrown away the medication used to treat his schizophrenia and his

doctor had not returned Nagel’s repeated phone calls to request a replacement

prescription, Casey was to be hospitalized to have his medication stabilized. Fifteen

minutes after deputies arrived at his home, Casey was dead. Nagel’s evidence

and witnesses present a version of the events of those fifteen minutes that is

very different from that presented by the deputies and the County. The jury

resolved these conflicts in Nagel’s favor, and in accordance with the standard

of review, we summarize the evidence in the light most favorable to the verdict. [1]

Viewed in this light, the record shows that

Casey had been treated for schizophrenia for decades. He lived nearly his

entire life with his mother, who knew that when he refused to take his

medication, his symptoms worsened. Shortly before the Harris County Precinct

One Constable’s office became involved, Casey threw away his medication. He

became worried that there were bombs in the home’s air vents, and he began

repeatedly rearranging the dishes.

In her attempts to have Casey’s

medication refilled, Nagel called Casey’s doctor every weekday from Friday,

February 11, 2005 through Thursday, February 17, 2005. On Thursday, February

17, 2005, Anthony Green answered the doctor’s phone and said that he could not

refill Casey’s medication and that it sounded as though Casey needed to be

hospitalized to have his medication stabilized. [2]

Green asked Nagel if Casey ever had been suicidal, and because Casey had been

suicidal decades earlier, Nagel answered in the affirmative. Green told Nagel it

was too late to get a mental-health warrant that day, and instructed her to

call back the following morning and “a mental[-]health team from Harris County

Mental Health Association would come and escort [Casey] to the hospital.”

Nagel did not know that law enforcement officers would execute the warrant.

Nagel telephoned Green the next morning,

and he told her to wait outside for the mental-health team to arrive so she

could let them into the house. That afternoon, Green applied for Casey’s

emergency detention. To obtain the mental-health warrant, Green was required

to present evidence that Casey presented a substantial risk of serious harm to

himself or others. In the warrant application, Green wrote that Casey was

having homicidal thoughts and had threatened his mother, but Nagel denies that

she said these things. In a “rap sheet” Green prepared for the deputy

constables who would be assigned to execute the warrant, he again wrote that

Casey had homicidal thoughts and added that Nagel was afraid of her son;

however, he also wrote that Casey would not be violent or try to flee when the

officers arrived.

Sergeant Cindy Leija of the Harris County

Precinct One Constable’s office assigned deputies Gregory Young and Demonte

Gehring to execute the warrant. Young called Nagel to confirm that Casey would

not fight them, and Nagel repeated that he would not. She also informed Young

that police had escorted Casey to the hospital peacefully twice before. [3]

When Young and Gehring arrived, Nagel met

them outside. Gehring asked if Casey would give them any problems. Nagel again

repeated that Casey would not be combative, but she noticed that Young already

had a taser in his hand while they were still outside the house. As Young

later agreed at trial, he already had made up his mind about what he was going

to do before he ever saw Casey.

The deputies knew that the area was safe before

they entered the house—so safe that they asked Casey’s mother to enter the

house first, even though she ambulated with the aid of a cane. When they entered,

Casey was seated on the sofa with his feet on the coffee table; he was listening

to music and smoking a cigar.

According to Nagel, Young immediately

shone the light from the taser on the middle of Casey’s forehead while Gehring

went around the back of the sofa to approach Casey from the other side. Young and

Gehring did not identify themselves or state why they were in the house. Young

only asked, “Are you Joel Don Casey?” When Casey answered, “yes, sir,” Young

ordered him to stand up and place his hands behind his back. Casey immediately

did so, and as Young later testified, Casey was showing no aggression.

Nevertheless, Gehring grabbed Casey and began to handcuff him. When Casey

flinched and said, “That hurts,” Gehring said “Hit him!” Young shot Casey in

the chest with the darts from the taser, and Casey immediately dropped to his

knees with his face on the seat of the couch. Gehring told Young to “hit him

again,” and although Casey said, “Please don’t kill me. Please don’t shoot me

again,” Young shocked Casey with the taser approximately eighteen times. At

some point, Young also radioed for assistance, but then radioed that additional

units should respond slowly.

Young and Gehring next placed the

handcuffed Casey facedown on the floor. According to Nagel, they grabbed Casey

under the arms and dragged him to the entryway of the house where they dropped

him. Young then collected the wires from the taser darts while Gehring moved

the deputies’ car closer to the house. When the deputies returned to Casey,

they again lifted him under his arms and told him to walk. Casey fell, and the

deputies began hitting Casey’s head against the storm door of the house until

his mother opened the door. Once outside, Young held Casey by the neck while

he and Gehring pushed Casey’s face against a brick wall. Although Casey

repeated, “I am your friend. I am your friend,” the two deputies raked Casey’s

face along the brick wall before placing him facedown on the ground near the deputies’

car. They then began to “hogtie” Casey, fastening leg irons around his ankles

and using a chain 6–12 inches long to connect the leg irons to the handcuffs

behind Casey’s back. [4]

At about this time, deputies Henry Thomas

and James Cavitt arrived, and Cavitt told the other deputies, “Relax, guys,

I’ve got it under control.” While the four officers leaned their weight on

Casey’s back, Cavitt, who weighed approximately 250 pounds, placed his knee on

Casey’s neck. Saying, “Bite me and you’ve had a bad day,” Cavitt pulled

Casey’s head backwards with such force that he broke the spinous processes from

one of the vertebrae in Casey’s neck and snapped a tendon on the side of his

neck. As an expert in biomechanics later testified, the injuries to Casey’s

neck indicate that the deputies applied 740 pounds of compressive force. Cavitt

continued to pull Casey’s head back as all four deputies leaned on Casey for approximately

three minutes while they finished hogtying him. As this was happening, Nagel

saw the color drain from Casey’s face, and she told the deputies, “you have

just killed my son.” Gehring said that Casey was fine, and the deputies pushed

Casey’s body—still hogtied—onto the backseat of the deputies’ car.

Once Casey was in the car, one of the

deputies noticed that Casey was not breathing. They called emergency services,

and when the fire department responded, paramedics found that Casey was still

hogtied inside the vehicle, while the four deputies stood outside. Because it

was impossible to perform CPR while Casey was in this position, paramedics

could not attempt to resuscitate him until he first was removed from the vehicle

and the various cuffs and chains were unlocked.

Attempts to revive Casey were

unsuccessful. The Houston Police Department ruled his death a homicide, but no

charges were filed.

Acting for herself and as the

representative of Casey’s estate, Nagel sued the individual deputies and Harris

County, alleging that they caused Casey’s death by seizing him with excessive

force in violation of the Fourth Amendment. See 42 U.S.C. § 1983 .

At trial, Nagel presented evidence that the deputies’ actions left Casey unable

to breathe and caused him to have a fatal heart attack. An autopsy further revealed

abrasions to Casey’s forehead, nose, face, scalp, neck, shoulders, arms, chest,

abdomen, wrists, flanks, and knees; bruises to his head, neck, torso, and

extremities; hemorrhaging on his wrists, ankles, and lower back; more than a

dozen pattern burns from the taser; and the previously described fractures to

the back and side of his neck.

Medical examiner Dr. Mary Anzalone

testified that Casey’s heart attack was precipitated by the “physical process”

that the deputies employed. This process included “everything that

occurred”—not only the extreme restraint and the pressure applied to Casey’s

back, but also “the blunt-force injuries on the body, the abrasions and the

bruises and the fractures . . . [and] the injuries that

occurred from the tasing.” She testified, “Certainly if there was no physical

part of that process on that day, the death probably would not have occurred

that day.” According to Dr. Anzalone, the following passage in Medicolegal

Investigation of Death illustrates the way in which Casey most probably died:

[P]inning down the shoulders

or forcibly pressing down the arms is equivalent to loading the back. A

struggling, agitated individual breathes faster, has a faster heartbeat,

elevated blood pressure, and heightened metabolism. Such an individual

requires more air and more oxygen. Immobilization of the chest, even if only

partially reducing the ability to maintain vital functions, culminates in cardiac

arrhythmia. [5]

Dr. Werner Spitz similarly testified that Casey’s

weight placed him at a high risk of death from prone restraint with pressure

applied to his back, while the repeated shocks from the taser accelerated his

need for oxygen. He explained that hogtying is not harmful unless weight is

applied to the body. According to Dr. Spitz, “the neck and the loading him

down, they undoubtedly are what caused his death.”

The deputies involved also testified

about the events surrounding Casey’s death, their training, and their awareness

of the risks of the methods they used. Gehring stated that he did not learn

how to hogtie people while he was in the police academy, but was taught by his field-training

officer in the mental-health warrants division of the Harris County Precinct

One Constable’s office. He agreed that Casey was under control after he was

handcuffed while the deputies were still in the house. Gehring also knew when

he was restraining Casey that there was a risk that Casey could die.

Young

testified that he never was trained to hogtie anyone, and that he knew it could

be lethal. It was his opinion that all of his actions were in accordance with

the customs, policies, practices, and procedures of the mental-health warrants

division. Young and several other witnesses testified that although the Precinct

One Constable’s office had no written policies on hogtying, it was allowed in

practice.

Because Cavitt

is assigned to the patrol division, he did not address the training and

practices of the mental-health warrants division. He agreed, however, that a

knee to the neck can cause death, and the use of deadly force on a person who already

was restrained by four officers would be excessive.

The jury

found that (a) Gehring, Young, and Cavitt injured Casey through the use of

excessive force; (b) the deputies are not entitled to qualified immunity;

(c) the enforcement of a County policy or custom was the moving force

behind the violation of Casey’s constitutional rights; (d) the County

ratified the deputies’ conduct; (e) the County is liable for the

additional reasons that it failed to train and supervise the deputies in

executing mental-health warrants. Based on these findings, the jury assessed

damages of $2.4 million for Nagel’s mental anguish and the loss of Casey’s

companionship. An additional $600,000 was awarded to Casey’s estate for the

pain and mental anguish he suffered before his death. The jury apportioned 97%

of the responsibility for the damages against the County, and found that

Gehring, Young, and Cavitt were each responsible for 1% of the damages. The

jury did not award exemplary damages.

The

defendants’ motion for new trial was overruled by operation of law, and they timely

filed this appeal.

II. Issues Presented

Deputies Gehring,

Young, and Cavitt argue that this court should reverse the judgment against

them because Nagel failed to overcome their assertion of qualified immunity.

According to the deputies, Nagel failed both to submit the issue to the jury

for a finding and to offer legally sufficient evidence to meet her burden of

proof.

Harris

County raises an additional seven issues challenging the trial court’s

judgment. First, the County argues that the trial court erred in instructing

the jury that “Constable Abercia and the supervising deputy constables in the

chain of command are officials whose acts constitute final official policy of

Harris County with regard to the execution of mental[-]health warrants.” In

its second issue, the County contends the evidence is legally insufficient to

support the jury’s finding that enforcement of a Harris County policy, custom,

or practice regarding the use of force in executing mental-health warrants was

a moving force in the alleged violation of Casey’s constitutional rights. The

County asserts in its third and fourth issues that there is legally insufficient

evidence that the County ratified the use of excessive force, and thus, the

trial court erred in submitting ratification as a theory of recovery. In its

fifth and sixth issues, the County challenges the legal sufficiency of the

evidence supporting the jury’s findings that the failure to train or to

supervise the deputies was a moving force behind the violation of Casey’s

constitutional rights. In its final issue, the County argues that the trial

court erred in denying its motion for directed verdict at the close of all the

evidence.

III. The

Deputies

When a state

actor violates a person’s right to be free from the use of excessive force, a

suit for civil damages “may offer the only realistic avenue for vindication of

constitutional guarantees.” Harlow v. Fitzgerald , 457 U.S. 800,

814 , 102 S. Ct. 2727, 2736 , 73 L. Ed. 2d 396 (1982). On the other hand, there

is a risk that the fear of litigation and personal liability may “unduly

inhibit officials in the discharge of their duties. Anderson v. Creighton ,

483 U.S. 635, 638 , 107 S. Ct. 3034, 3038 , 97 L. Ed. 2d 523 (1987). The

imposition of personal liability therefore “requires a careful balancing of

‘the nature and quality of the intrusion on the individual’s Fourth Amendment

interests’ against the countervailing governmental interests at stake.” Graham

v. Connor , 490 U.S. 386, 396 , 109 S. Ct. 1865, 1871 , 104 L. Ed. 2d 443

(1989) (quoting Tennessee v. Garner , 471 U.S. 1 , 7–8, 105 S. Ct. 1694, 1699 ,

85 L. Ed. 2d 1 (1985)). The Supreme Court has “accommodated these conflicting

concerns by generally providing government officials performing discretionary functions

with a qualified immunity, shielding them from civil damages liability as long

as their actions could reasonably have been thought consistent with the rights

they are alleged to have violated.” Anderson , 483 U.S. at 638 , 107 S.

Ct. at 3038 .

To

determine whether to impose liability or to uphold an officer’s assertion of

qualified immunity, the test is one of objective reasonableness, without regard

to the officer’s intent. Graham , 490 U.S. at 396, 397 , 109 S. Ct. at

1872 . The challenged conduct is considered from the perspective of a hypothetical

reasonable officer who was on the scene at the time the force was used and

possessed the same information as the defendant officer. Id. at 396,

397 , 109 S. Ct. at 1872 . We then consider the officer’s conduct in light of

the clearly established law that would have been known to a reasonable person

at the time the force was used. Harlow , 457 U.S. at 818 , 102 S. Ct. at

2738 . In this way, the Court has allowed for reasonable mistakes, both of fact

and of law. By evaluating the objective “factual” reasonableness from the view

of a reasonable officer with the same information, the Court recognized that

officers may have to make split-second decisions about the amount of force

needed in circumstances that are tense, uncertain, and rapidly evolving. Graham ,

490 U.S. at 396–97, 109 S. Ct. at 1872 . In describing the test for

objective “legal” reasonableness, the Court similarly has acknowledged that

reasonable people may have difficulty determining how even clearly established

law may apply to a particular set of circumstances. See Brosseau v. Hagen ,

543 U.S. 194, 198 , 125 S. Ct. 596, 599 , 160 L. Ed. 2d 583 (2004) (per curiam)

(“Qualified immunity shields an officer from suit when she makes a decision

that, even if constitutionally deficient, reasonably misapprehends the law

governing the circumstances she confronted.”); Anderson , 483 U.S. at

641 , 107 S. Ct. at 3039–40 (explaining that even though it is firmly

established that warrantless searches violate the Fourth Amendment if

unsupported by probable cause or exigent circumstances, officers can reasonably

but mistakenly conclude that probable cause or exigent circumstances are

present in the situation confronting them).

With

this understanding of qualified-immunity law, we turn to the deputies’ challenges

to the judgment.

A. The

trial court did not abuse its discretion by defining the “objective

reasonableness” test for qualified immunity through an instruction in the jury

charge rather than including the definition in a specific interrogatory.

In

their first issue, the deputies ask us to reverse and render judgment that

Nagel take nothing because she failed to request and obtain a finding that, in

effect, the deputies were not entitled to qualified immunity. When evaluating

an allegation of charge error, we must consider the entire charge. See Island

Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n , 710 S.W.2d 551, 555

(Tex. 1986) (op. on reh’g). Here, it is helpful to begin with the instructions

that preceded the challenged jury question.

In the

portion of the jury charge that is relevant to this issue, the trial court

instructed the jury on the governing law as follows:

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. The nature of reasonableness

must embody allowance 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.

This reasonableness inquiry is an objective

one: the question is whether the officer[s’] actions are objectively reasonable

in light of the facts and circumstances confronting them, without regard to

their underlying intent or motivation. [ [6] ]

By these instructions, the trial court explained to

the jurors that the officers’ conduct must be objectively reasonable in a

factual sense.

The instructions continued as follows:

If you find that the Plaintiff has proven her

claims, you must then consider the Defendants’ defense that their conduct was

objectively reasonable in light of the legal rules clearly established at the

time of the incident in issue and that the Defendants are therefore not liable. [ [7] ]

Police officers are presumed to know about the

clearly established constitutional rights of citizens. In February 2005, it

was clearly established law that citizens had a right to be free from excessive

force.

Thus, in this part of the instructions, the trial

court explained that the jury also must consider whether the officers’ use of

force was objectively reasonable in a legal sense.

The trial court concluded this section of

the instructions as follows:

If, after considering the scope of discretion

and responsibility generally given to police officers in the performance of

their duties, and after considering all of the surrounding circumstances as

they would have reasonably appeared at the time of the arrest [sic], you find

from a preponderance of the evidence that Plaintiff has proved either (1) that

the Defendants were plainly incompetent or that (2) they knowingly violated the

law regarding Joel Casey’s constitutional rights, you must find for the

Plaintiff. If, however, you find that the Defendants had a reasonable belief

that their actions did not violate the constitutional rights of Joel Casey,

then you cannot find them liable even if Joel Casey’s rights were in fact

violated as a result of the Defendants’ objectively reasonable action.

See Malley v. Briggs ,

475 U.S. 335, 341 , 106 S. Ct. 1092, 1096 , 89 L. Ed. 2d 271 (1986) (explaining

that qualified immunity protects “all but the plainly incompetent or those who

knowingly violate the law”). The deputies did not object to any of these

instructions in the trial court, and do not complain on appeal that these

instructions misstate the governing law. [8]

In the first

question of the charge, the jury was asked, “Did Joel Casey receive an injury

on February 18, 2005 which resulted from the use of force by any of the

officers named below which was excessive to the need and the excessiveness of

which was objectively unreasonable?” The deputies and the County objected on

the ground that the jury was asked only whether there was a constitutional

violation, and not whether the deputies nevertheless were entitled to qualified

immunity. They therefore asked the trial court to add the following words at the

end of Question One: “. . . and the use of which no reasonable officer who knew

the clearly established law and the surrounding circumstances could have

believed to be lawful.” In the alternative, they asked the trial court to

submit a separate question on qualified immunity. [9]

The trial

court agreed with Nagel that the instructions adequately explained her burden

to overcome the assertion of qualified immunity, and therefore overruled the defendants’

objections and refused to submit their proposed question. We review these rulings

for abuse of discretion, Holeman v. Landmark Chevrolet Corp. , 989 S.W.2d

395, 397 (Tex. App.—Houston [14th Dist.] 1999, pet. denied), and will find such

abuse only if the trial court acted arbitrarily, unreasonably, or without

reference to guiding rules and principles. Tex. Dep’t of Human Servs. v.

E.B. , 802 S.W.2d 647, 649 (Tex. 1990); Downer v. Aquamarine Operators,

Inc. , 701 S.W.2d 238 , 241–42 (Tex. 1985).

According

to the deputies, the issue of qualified immunity was not presented to the jury

at all. The instructions belie this contention. Because the record does not

demonstrate otherwise, we presume that the jury followed these instructions. See

Columbia Rio Grande Healthcare, L.P. v. Hawley , 284 S.W.3d 851, 862 (Tex.

2009) (citing Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 771

(Tex. 2003)).

The

jury could not answer Question One without first determining whether the

deputies’ use of force was “objectively unreasonable.” The trial court included

detailed instructions explaining both the factual and legal components of the

objective-reasonableness inquiry. Those instructions are separated from

Question One by a single paragraph defining and explaining the plaintiff’s

burden to prove causation. Thus, the jury reached the first question only

after being expressly instructed to consider whether the deputies’ use of force

was “objectively reasonable in light of the facts and circumstances confronting

them,” and “objectively reasonable in light of the legal rules clearly

established at the time of the incident in issue.”

The

jury additionally was instructed that it could not find the

deputies liable if it concluded that the qualified-immunity standard was met.

The trial court’s instruction provided, “If, however, you find that the

Defendants had a reasonable belief that their actions did not violate the constitutional

rights of Joel Casey, then you cannot find them liable even if Joel Casey’s

rights were in fact violated as a result of the Defendants’ objectively

reasonable action.” This instruction covers the same ground as the deputies’

proposed addition at the end of Question One—and does so in a more

straightforward, easily understandable, and emphatic manner than adding the

phrase “. . . and the use of which no reasonable officer who knew the clearly

established law and the surrounding circumstances could have believed to be

lawful.”

An analysis

of the trial court’s full instructions demonstrates that the deputies’ proposed

addition to Question One was not directed toward a different or additional

finding that otherwise was absent from the charge. The deputies’ proposed

language merely restated the test for objective-reasonableness [10] by referring

again to a reasonable officer’s view of the “circumstances” and the “clearly

established law.” Considering the question actually submitted to the jury in

light of the instructions in the charge, the deputies’ proposed changes to the

charge would have submitted a different shade of the same question or instruction.

We therefore conclude that the trial court acted within its discretion by

refusing to include the deputies’ tendered language either as part of Question

One or in a separate question to the jury. See Tex. R. Civ. P . 278 (“A judgment shall not be reversed

because of the failure to submit other and various phases or different shades

of the same question.”); cf. Dillard v. Tex. Elec. Coop. , 157 S.W.3d

429, 433 (Tex. 2005) (“Because the instruction the trial court gave was

sufficiently broad to include all shades of [the defendant’s] inferential

rebuttal theories . . . , the trial court did not err in

rejecting [the defendant’s] additional request on this same issue.”). We further

conclude that no harm can be demonstrated on this record even if it is assumed,

solely for the sake of argument, that the trial court exceeded its discretion

by addressing qualified immunity in the general instructions rather than

addressing it as an instruction added to Question One or as a separate

question. See Tex. R. App .

P. 44.1 We accordingly overrule the deputies’ first issue.

B. The

evidence is legally sufficient to overcome the deputies’ assertion of qualified

immunity.

The deputies

seek reversal on the additional ground that Nagel failed to meet her burden to

overcome their assertion of qualified immunity. To satisfy that burden, Nagel was

required to present legally sufficient evidence that Casey’s constitutional

rights were violated, and that the violation was objectively unreasonable. See

McIntosh v. Partridge , 540 F.3d 315 , 323 n.8 (5th Cir. 2008).

An officer’s

conduct is objectively unreasonable if it violates clearly established law of

which a reasonable officer would have been aware. Anderson , 483 U.S. at

640 , 107 S. Ct. at 3039 . The deputies assert that Nagel failed to show either that

the law violated was clearly established, or that a reasonable officer would

have been aware that such conduct was unconstitutional. Specifically, the

deputies contend that Nagel failed to offer testimony (1) describing the

state of the clearly established law at the time of Casey’s death, and (2) identifying

beliefs that all reasonable officers would have held about the state of the law

at that time. In particular, they contend that Michael Lyman, Nagel’s expert

witness on police procedures, did not discuss “constitutional standards under

the more specific facts in this case,” and that he did not address “what all

reasonable officers would have known about the law” at the time of these events.

In other words, they complain that Lyman’s testimony was legally insufficient

to establish (1) the true state of the governing law and (2) the deputies’ lack

of an objectively reasonable, but mistaken, belief that their conduct was

constitutional.

1.

Identification of the clearly established law is not a

question of fact to be established by evidence.

In

arguing that Nagel failed to elicit testimony describing the state of the law

in February 2005, the deputies have assumed that the state of constitutional

law at a given time is a question of fact for the jury to decide based on the

evidence. It is not. Judges, not witnesses, determine the state of the

clearly established law. See Littrell v. Franklin , Littrell

v. Franklin , 388 F.3d 578, 585 (8th Cir. 2004). Consequently, Nagel was

not required to identify the clearly established law through evidence presented

to the jury.

Moreover,

Nagel actually attempted to project cases overhead for the jury to read, and

the defendants’ counsel objected. Curiously, the deputies argued that there

could be a question of fact in determining what law was clearly established at

a given time, but asserted that it would be a question of fact on which the

plaintiff could present no evidence. In the ensuing discussion with the trial

court, their attorney represented that unless the trial court concluded that

the deputies were entitled to qualified immunity as a matter of law, then the

jury must decide the issue. The trial court asked, “And then how is the jury

supposed to establish what clearly established law was at the time was [sic] in

order to answer the question?” The deputies’ attorney answered, “Based on the

factual evidence. They’re not supposed to be given cases and -- and testimony

about cases in front of them put up on the screen.” But if the deputies’ view

of the law were correct—if the trial court’s only choice was to conclude either

that the clearly established law favored the officers or that it was a question

of fact on which the plaintiff could offer no evidence—then immunity would

apply in every case. This would not be qualified immunity, but absolute

immunity.

Here, the trial court advised jurors of

the state of the clearly established law by instructing them that “[i]n

February 2005, it was clearly established law that citizens had a right to be

free from excessive force.” The deputies did not object to this instruction at

trial, and do not argue on appeal that this instruction is in any way

inadequate. Cf. Anderson , 483 U.S. at 639–40, 107 S. Ct. at 3038–39. Further,

they do not complain that there is insufficient evidence to support a finding

that they violated Casey’s “right to be free from excessive force,” as the

clearly established law was identified by the trial court. Instead, they contend

Nagel failed to establish that no reasonable officer could have believed—even

mistakenly—that the force they used was constitutional. We disagree.

2. The

evidence is legally sufficient for a jury to conclude that no reasonable

officer would believe that the deputies’ conduct was constitutional.

To determine

whether the evidence is legally sufficient to support the judgment, we review

the entire record, crediting favorable evidence if reasonable jurors could and

disregarding contrary evidence unless reasonable jurors could not. City of

Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005). We assume that jurors

decided questions of credibility or conflicting evidence in favor of the

verdict if they reasonably could do so. Id . at 819, 820. We do not

substitute our judgment for that of the trier-of-fact if the evidence falls

within this zone of reasonable disagreement. Id . at 822. If the

evidence would enable reasonable and fair-minded people to differ in their

conclusions, then it is legally sufficient to support the verdict. Id .

According to

the deputies, Nagel failed to prove that they were not simply mistaken about

the constitutionality of their actions. In support of this argument, they

contend that Nagel’s police-procedures expert Michael Lyman did not identify the

range of reasonable officers’ beliefs about the state of the law in February

2005, but instead testified that the deputies’ actions did not comply with the

recommendations of the International Association of Chiefs of Police (“IACP”).

It is true that Lyman frequently cited manuals and best-practices

recommendations published after the events at issue in this trial, and that

Nagel cannot overcome the deputies’ assertion of qualified immunity simply by

showing that they failed to follow a voluntary organization’s guidelines. [11] Even officers’

violations of their own agency’s procedures or of state law generally are

insufficient to support an excessive-force claim. Marquez v. City of Albuquerque ,

399 F.3d 1216, 1222 (10th Cir. 2005).

But the relevant evidence consists of

more than just the testimony challenged by the deputies. Lyman also accurately

testified that “an officer can only use that amount of force that is

objectively reasonable . . . . And reasonable must mean

considering all the circumstances.” See Graham , 490 U.S. at 396 , 109 S.

Ct. at 1872 . He further explained that the reasonableness of an officer’s

conduct is evaluated objectively and without the benefit of hindsight by

measuring it against that of a reasonable officer who knew the same things the

defendant officers knew and was on the scene at the time. See id. at

396–97, 109 S. Ct. at 1872 . Thus, Lyman correctly described the test, and applying

that test, he concluded that the deputies’ actions were not reasonable. In

particular, he testified that it was not objectively reasonable for the

deputies to apply force or weight to Casey while he was restrained, and that

such conduct served no legitimate law-enforcement purpose. He also stated that

a reasonable officer should know that when a 250-pound officer places his knee

on the neck and shoulder area of someone who is hogtied, there is a risk of

serious physical injury.

Moreover, it is not necessary in every

case that the plaintiff introduce expert testimony to identify beliefs about

constitutional law that reasonable officers could or could not have held at a

given time. As the Seventh Court of Appeals has said, “[i]t would create

perverse incentives indeed if a qualified immunity defense could succeed

against those types of claims that have not previously arisen because the

behavior alleged is so egregious that no like case is on the books.” McDonald

ex rel. McDonald v. Haskins , 966 F.2d 292, 295 (7th Cir. 1992) (holding

that despite absence of analogous case law, no reasonable officer could believe

it was constitutional to hold a gun to the head of an unarmed nine-year-old boy

and threaten to pull the trigger when the boy posed no threat to officers and

was not under arrest, suspected of a crime, attempting to flee, or interfering

in the officers’ search of his home).

We have found no case addressing all of

the uses of force at issue here—which include tightening handcuffs until they

left deep furrows in Casey’s wrists, shocking him with a taser approximately

eighteen times, dropping him at least twice, striking his head against a door

and a brick wall, hogtying him, and pulling his head and neck backwards while

applying 740 pounds of compressive force. We nevertheless consider it

self-evident that, for example, no reasonable officer would believe that the

use of force Young describes below was constitutional:

Q. At

the time that we are talking about [i.e., after Young first shot Casey with the

darts from the taser], Joel Don Casey had his face down in the couch; isn’t

that right?

A: Yes, sir, he did.

Q. All

it would take was for you two officers to come over here and put your hands on

him and keep him in that position; isn’t that right? That is one of your

options?

A. In theory.

Q. But you are continuing to taser him; isn’t that

true?

A. I

continued to dry tase him because he wasn’t just standing still. It wasn’t

like I was just dry tasing him. He was letting me tase him.

. . .

Q. You

are not telling this jury that it was a fight because a man is being shocked

with electricity that his body is involuntarily moving, are you?

A. That is exactly what I am saying.

No reasonable

officer could believe that the constitution permits a law enforcement officer

to use pain compliance measures to stop someone who is mentally ill from flinching

in response to electric shock. This is easily derived from the general

constitutional rule, even without a prior case addressing this very topic. See

United States v. Lanier , 520 U.S. 259, 271 , 117 S. Ct. 1219, 1227 , 137 L.

Ed. 2d 432 (1997) (“‘The easiest cases don’t even arise. There has never been . . . a

section 1983 case accusing welfare officials of selling foster children into

slavery; it does not follow that if such a case arose, the officials would be

immune from damages . . . .’” (quoting United States v. Lanier ,

73 F.3d 1380, 1410 (6th Cir. 1996) (Daughtrey, J., dissenting))).

Moreover,

the jury watched a videotaped reenactment of Gehring, Young, Cavitt, and Thomas

restraining another deputy who was playing the part of Casey. Because the

County prepared the reenactment, the deputies depicted their own versions of

their actions. They did not repeatedly shock, drop, and strike the head of the

person playing the part of Casey; Cavitt did not place his knee directly on the

man’s neck; and of course, Casey’s role was played by someone who knew who the

other participants were, what they proposed to do, and why. Despite these

advantages, the deputy playing Casey’s part was placed in so much pain that the

reenactment had to be aborted. The jury was entitled to consider this fact

when evaluating what a reasonable officer on the scene could have believed

about the constitutionality of the force that the deputies used against Casey.

Further, before

these events occurred, cases clearly established that officers use excessive

force if they apply significant pressure to a person who is hogtied. See Champion

v. Outlook Nashville, Inc ., 380 F.3d 893, 903 (6th Cir. 2004) (“[P]utting

substantial or significant pressure on a suspect’s back while that suspect is

in a face-down prone position after being subdued and/or incapacitated

constitutes excessive force.”); Simpson v. Hines , 903 F.2d 400 , 402–03

(5th Cir. 1990) (affirming denial of qualified immunity to officers who subdued

detainee by putting an arm around his neck, lowering him to the floor, sitting

on his chest, then rolling him over and cuffing his hands and feet as he lay

prone); Johnson v. City of Cincinnati , 39 F. Supp. 2d 1013 , 1019–20

(S.D. Ohio 1999) (finding that information existed in the law enforcement

community that put officers on notice of the dangers of positional

asphyxiation); Swans v. City of Lansing , 65 F.

Supp. 2d 625 , 633–34 (W.D. Mich. 1998) (affirming verdict in favor of heirs of

mentally-ill arrestee who asphyxiated after officers restrained his hands and

legs behind his back to a strap around his waist and applied their weight to

him while he lay prone); Estate of Smith ex rel. Kirksey v. Pierce , No.

247154, 2004 WL 2951889 , at *1, *4 (Mich. App. Dec. 21, 2004) (per curiam) (affirming

verdict against police officers for causing asphyxiation by restraining the

detainee, who was agitated and under the influence of cocaine, in a prone

position with his legs or feet held while a heavy officer leaned on his back

for ten to fifteen minutes), pet. denied , 706 N.W.2d 202 (Mich. 2005); cf.

Price v. San Diego , 990 F. Supp. 1230 , 1239–40 (S.D. Calif. 1998)

(concluding that where plaintiffs offered no evidence of the amount of pressure

applied and no evidence that the pressure significantly affected arrestee’s

breathing, no excessive force was used by deputies who applied “incidental

pressure” rather than “significant pressure” to hogtied arrestee’s back).

Lastly, there

is evidence that the deputies were aware that they were employing deadly force

against a person who not only was compliant, but who also was already restrained

so as to present no threat. [12]

For example, Cavitt admitted he knew that if a 250-pound man used his knee to

deliver a blow to someone’s neck, the person could die. Young testified that

if a 250-pound man dropped his knee one inch from the neck of a person who was

hogtied, it “probably would cause some damage” and “possibly” would break the

person’s neck. Gehring admitted he knew that Casey could die from positional asphyxia

while he was hogtied and held down. Young testified that he knew before these

events that hogtying could be lethal. Captain Harry Cunningham admitted he had

known since 2002 or 2003 that there was a risk that a person so restrained

could die; and testified, “I think all of the officers were aware of that.”

For all of

these reasons, we conclude that the evidence is legally sufficient to support

the conclusion that no reasonable officer who was present when Casey was

detained could believe the deputies’ conduct was constitutional. We therefore overrule

the deputies’ second issue and affirm the judgment against them.

IV . The

County

A

county can be held liable for constitutional torts caused either by (1) an

ordinance, regulation, policy, or decision promulgated and officially adopted

by the county’s officers, or (2) its unofficial customs and policies. City

of St. Louis v. Praprotnik, 485 U.S. 112, 121 , 108 S. Ct. 915, 923 , 99 L. Ed.

2d 107 (1988) (plurality op.) (citing Monell v. Dep’t of Social Servs. of

N.Y. , 436 U.S. 658, 690 , 98 S. Ct. 2018, 2036 , 56 L. Ed. 2d 611 (1978)); Merritt

v. Harris County , 775 S.W.2d 17, 24 (Tex. App.—Houston [14th Dist.] 1989,

writ denied). An official policy is one that has been adopted by the official

or officials responsible under state law for making policy in that area of the county’s

business. See Praprotnik , 485 U.S. at 123 , 108 S. Ct. at 924

(citing Pembaur v. City of Cincinnati , 475 U.S. 469 , 482–83 & n.12, 106

S. Ct. 1292 , 1299–1300 & n.12 (1986) (plurality op.)). A custom or widespread

practice may form the basis of liability if the practice is so permanent and

well settled as to constitute a custom or usage with the force of law. Adickes

v. S.H. Kress & Co ., 398 U.S. 144 , 167–68, 90 S. Ct. 1598 , 1613–14, 26 L.

Ed. 2d 142 (1970).

The United States Supreme Court also has

recognized ratification as a basis for governmental liability as follows:

[W]hen a subordinate’s decision is subject to review by the

municipality’s authorized policymakers, they have retained the authority to

measure the official’s conduct for conformance with their policies. If the

authorized policymakers approve a subordinate’s decision and the basis for it,

their ratification would be chargeable to the municipality because their

decision is final.

Praprotnik , 485 U.S. at 127 , 108 S. Ct. at

926 . Thus, unlike liability based on custom, ratification ultimately is based

on the conduct of the authorized policymaker, who in effect affirms that in

performing the challenged conduct, the employee was executing official policy.

Only

officials who have “final policymaking authority” may subject the government to

liability. See id. at 123 , 108 S. Ct. at 924 (citing Pembaur ,

475 U.S. at 483 , 106 S. Ct. at 1300 ). The issue of whether a particular

official has “final policymaking authority” is a question of state law, which may

include valid local ordinances and regulations . Id. at 123, 125, 108 S.

Ct. at 924 , 925 (citing Pembaur , 475 U.S. at 483 , 106 S. Ct. at 1300 ).

Here, the

jury found (a) the enforcement of a County policy or custom was the moving

force behind the violation of Casey’s constitutional rights, (b) the

County was liable for the additional reasons that it failed to train and

supervise the deputies in executing mental-health warrants, and (c) the

County ratified the deputies’ conduct. Because we find the ratification issue

dispositive, we address only that point. See Tex. R. App. P. 47.1.

A. It is unnecessary—and

impossible—to prove that a constitutional violation was caused by its

ratification.

In the fourth question of the charge, the trial

court asked the jury if the County ratified the deputies’ use of excessive

force against Casey. The following instruction accompanied this question:

You

are instructed that Harris County ratified the conduct of the officers only if

you find by a preponderance of the evidence that the Harris County Precinct One

Constable final policymaker reviewed the events of February 18, 2005, knew the

force used by officers was clearly excessive to the need and agreed with the

officers’ illegal conduct by not imposing discipline. You may find Harris

County responsible if you find that the deputies’ decisions that you found were

unconstitutional in Question No. 1 were subject to review by the county’s

authorized policymakers and the authorized policymakers approved the deputies’

decisions and the basis for them. You are instructed that Harris County is not

liable under a ratification theory if you find it merely approved the officers’

conduct without knowing the basis for it, or merely failed to investigate the

facts.

The County objected to the submission of a

ratification question on the ground that there was no evidence of ratification,

and more specifically, that “an after the fact ratification of a completed

constitutional violation can never be the moving force behind that violation.”

In its appellate brief, the County argued that the trial court erred in

overruling those objections and that the evidence was legally insufficient to

support the jury’s affirmative finding.

In referring to “the moving

force,” the County was alluding to the Supreme Court’s language in Monell explaining

that a governmental entity is liable for its employee’s use of excessive force only

if the employee’s execution of official policy caused the violation of

constitutional rights. See Monell , 436 U.S. at 694 , 98 S. Ct. at

2037–38 (holding government liable because the case “involves official policy

as the moving force of the constitutional violation”). This requirement is

necessary because governmental entities cannot be held vicariously liable under

§ 1983 for violation of the constitutional right to be free from the use

of excessive force. Id. at 691–92, 98 S. Ct. at 2036 . Absent proof of

causation, there is a danger that the governmental entity will be held liable

for the claimant’s injuries solely because it employed the actor who actually

violated the claimant’s constitutional rights. See id. at 694 , 98 S.

Ct. at 2037–38; Bd. of Cnty. Comm’rs v. Brown , 520 U.S. 397, 408 , 117 S.

Ct. 1382, 1390 , 137 L. Ed. 2d 626 (1997).

In a purely semantic sense, the County is partially

correct: an effect cannot precede its cause. No constitutional violation could

be caused by its ratification, because by definition, ratification can occur

only after the act that is ratified. See, e.g. , Bocanegra v. Aetna

Life Ins. Co. , 605 S.W.2d 848, 851 (Tex. 1980) (“A ratification rests upon

a manifestation of assent to confirm one’s prior act or that of another.”)

(emphasis added); Avary v. Bank of Am., N.A ., 72 S.W.3d 779, 788 (Tex.

App.—Dallas 2002, pet. denied) (“Ratification is the adoption or confirmation

by a person, with knowledge of all material facts, of a prior act that

did not then legally bind that person and which that person had the right to

repudiate.”) (emphasis added). Thus, it is impossible for a later ratification

to cause an earlier constitutional violation. Consequently, if ratification gave

rise to municipal liability only when it was the cause-in-fact of the

constitutional violation, then municipal liability never could be based on

ratification.

The County argues that governmental liability

based on ratification is subject to a restriction not mentioned in Praprotnik ,

i.e., that ratification is possible only if the act to be ratified has not yet

been completed. In support of this argument, the County relies on Thomas ex

rel. Thomas v. Roberts , 261 F.3d 1160 , 1174 (11th Cir. 2001), vacated ,

536 U.S. 953 , 122 S. Ct. 2653 , 153 L. Ed. 2d 829 (2002), reinstated with

supp. op. , 323 F.3d 950 (11th Cir. 2003). In that case, a fifth-grade

student reported to his teacher that an envelope of cash he had placed on the

teacher’s desk was missing. Id. at 1163. Without individualized

suspicion that any particular child had taken the money, school district

personnel strip-searched the boy’s classmates. Id. at 1163–64. The

Eleventh Circuit Court of Appeals reversed the judgment against the school district

because “the clear import of Praprotnik is that a local government may

be held liable for a constitutional tort when policymakers have had the

opportunity to review subordinates’ decisions before they become final.” Id.

at 1174. Because the search was over before the district had an

opportunity to review the decision to strip-search the children, the court

concluded that the district could not have ratified the decision. Id. at

1174–75.

We agree that when a subordinate decides to

engage in unconstitutional conduct and the final policymaker reviews and

approves that decision before it becomes final, then the governmental entity is

liable. See Praprotnik , 485 U.S. at 127 , 108 S. Ct. at 926 . But that

is not because the policymaker ratified the subordinate’s conduct; it is because

the final act was authorized by the final policymaker. When the policymaker authorizes

the violation of constitutional rights, causation is straightforward. See

Brown , 520 U.S. at 406 , 117 S. Ct. at 1389 . In such a case, proof

that the policymaker made such a decision is sufficient to prove causation. Id.

at 405–06, 117 S. Ct. at 1389. This is true even if the policy is not one

of general application, but instead was the policymaker’s decision in a single

specific case. See, e.g. , City of Newport v. Fact Concerts, Inc. ,

453 U.S. 247, 252 , 101 S. Ct. 2748, 2752 , 69 L. Ed. 2d 616 (1981) (city council

voted to cancel license for concert); Owen v. City of Independence , 445

U.S. 622, 629 , 100 S. Ct. 1398, 1404 , 63 L. Ed. 2d 673 (1980) (city council

censured and discharged an employee without a hearing).

In a practical sense, however, there is no

difference between prior authorization and subsequent ratification. Gernetzke

v. Kenosh Unified Sch. Dist. No. 1 , 274 F.3d 464 , 469 (7th Cir. 2001). “[R]atification is ‘the equivalent of authorization,

but it occurs after the fact . . . .’” ABN AMRO, Inc.

v. Capital Int’l Ltd. , 595 F. Supp. 2d 805, 822 (N.D. Ill. 2008) (quoting Progress

Printing Corp. v. Jane Byrne Political Comm. , 601 N.E.2d 1055, 1067 (Ill. App. 1992); see also Restatement (Third) of Agency

§ 4.01(1) (2006) (“Ratification is the affirmance of a prior act done by

another, whereby the act is given effect as if done by an agent acting with

actual authority .”) (emphasis added); Restatement (Second) of Agency , § 82 (1958) (“Ratification

is the affirmance by a person of a prior act which did not bind him but which

was done or professedly done on his account, whereby the act, as to some or all

persons, is given effect as if originally authorized by him .”) (emphasis

added). And as previously mentioned, causation can be inferred from

authorization. Brown , 520 U.S. at 405–06, 117 S. Ct. at 1389. Thus, if the official policymaker ratified the

subordinate’s conduct, the factfinder can treat the action as directly

authorized or performed by the policymaker and infer that the execution of official

policy caused the constitutional violation. See Santibanes v. City of

Tomball , 654 F. Supp. 2d 593, 614 (S.D. Tex. 2009) (describing the

plaintiff’s ratification theory of liability as one in which official policy is

alleged to have caused the deprivation of constitutional rights).

Although we decide

this issue under federal law, our own state’s treatment of ratification in another

context illustrates the same tenet. Under Texas law, for example, a principal who

ratifies its agent’s criminal act is liable for exemplary damages just as

though it authorized the act in advance. Compare Tex. Civ. Prac. & Rem . Code Ann .

§ 41.005(c)(1) (West 2008) (authorization) with id. § 41.005(c)(4)

(ratification). [13] A principal who ratifies its agent’s act is directly

culpable, Shearson Lehman Hutton, Inc. v. Tucker , 806 S.W.2d 914, 925

(Tex. App.—Corpus Christi 1991, writ dism’d w.o.j.), because an act that has

been ratified is “directly attributable” to the principal. Mobil Oil

Corp. v. Ellender , 968 S.W.2d 917 , 921–22 (Tex. 1998) .

In effect, then,

the County’s objection that “an after the fact ratification of a completed

constitutional violation can never be the moving force behind that violation” is no different from an objection that “advance

authorization to commit a constitutional violation can never be the moving

force behind that violation.” This is incorrect; a governmental entity’s

advance authorization of a constitutional violation can be the moving force

behind the violation. See Pembaur , 475 U.S. at 481 , 106 S. Ct. at

1299 . Thus, the trial court did not abuse its discretion in overruling the

deputies’ objection.

B. The evidence is

legally sufficient to support the jury’s finding of ratification.

Because the County

did not object to the instruction that accompanied the ratification question,

we measure the legal sufficiency of the evidence in light of that instruction.

See Larson v. Cook Consultants, Inc. , 690 S.W.2d 567, 568 (Tex. 1985). [14] As charged, the jury could find ratification if

there was legally sufficient evidence that the final policymaker for the Harris

County Precinct One Constable’s Office (1) reviewed the events of February 18,

2005; (2) knew the force used by the officers was clearly excessive to the

need; and (3) did not discipline the deputies for their conduct. The jury

also was instructed it could find that the County ratified the deputies’

decisions to use excessive force if the County’s authorized policymakers

approved the deputies’ decisions and the basis for them.

Only an official “responsible under state law for making

policy in that area of the [governmental entity’s] business” can subject

a governmental unit to § 1983 liability. Praprotnik , 485 U.S. at

123 , 108 S. Ct. at 924 (emphasis in original) (citing Pembaur , 475 U.S. at

482–83 & n.12, 106 S. Ct. at 1298–300 & n.12). Thus, to determine

whether the County ratified the deputies’ decisions, the jury had to begin its

analysis by considering the actions and knowledge of those responsible for

making final official policy as to the way in which deputies execute

mental-health warrants.

It is the trial court’s responsibility to

identify for the jury, as a matter of state law, those officials who “speak

with final policymaking authority” for the defendant governmental entity

concerning the action that allegedly caused a violation of constitutional

rights. Jett v. Dallas Indep. Sch. Dist. , 491 U.S. 701, 737 , 109 S. Ct.

2702, 2724 , 105 L. Ed. 2d 598 (1989). Here, neither the general instructions

of the jury charge nor the instruction accompanying the ratification question

identified the relevant final policymaker, and the County presented no objection

in the trial court or argument in its appellate brief about the omission.

1. The

County’s objection to an instruction accompanying a different question does not

apply by implication to the instructions accompanying the ratification question.

In an instruction to a different

question, the trial court defined the “officials whose acts constitute the

County’s final official policy” in the execution of mental-health warrants to

include everyone in the chain of command. The County objected to that

identification, but did not object to the absence of a instruction identifying

the policymaker referred to in the ratification question. After we issued our

original opinion in this case, the County moved for en banc reconsideration and

argued for the first time that its objection to the instruction accompanying an

earlier question in the charge applied to the ratification question. For several

reasons, that argument does not affect our analysis.

First, this contention was raised for the

first time in the motion for en banc reconsideration. We generally do not base

our rulings on arguments that were raised for the first time in a motion for

rehearing. See AVCO Corp. v. Interstate Sw., Ltd. , 251 S.W.3d 632, 676

(Tex. App.—Houston [14th Dist.] 2007, pet. denied) (supp. op. on reh’g).

Second, the Texas Rules of Civil

Procedure specifically provide that “[n]o objection to one part of the charge

may be adopted and applied to any other part of the charge by reference only.”

Tex. R. Civ . P. 274. Here, the

County did not direct the trial court’s attention to its earlier objection at

all, and we decline to hold that silence suffices where an overt reference would

not.

Third, the County’s objection that an earlier instruction

identified the wrong policymaker does not apply to an instruction that does not

identify the policymaker at all. In the preceding question in the charge, the

jury was asked if “Harris County Precinct One Constable’s enforcement of a

Harris County policy, custom or practice regarding the use of force” in

executing mental-health warrants was “a moving force of a violation” of Casey’s

constitutional rights. An accompanying instruction provided that “Harris

County Precinct One Constable Abercia and the supervising deputy constables in

the chain of command of the Harris County Precinct One mental[-]health warrant

division are officials whose acts constitute final official policy of Harris

County with regard to the execution of mental[-]health warrants.” The County

objected “because the accompanying instruction is incorrect as a matter of

law. Neither Constable Abercia nor any supervising deputy constables are final

policymakers for Harris County.” In contrast, the instruction accompanying the

ratification question refers to “the Harris County Precinct One Constable final

policymaker” and to “the county’s authorized policymakers,” but does not define

either term. Thus, even if the County could adopt its earlier objection by

reference (which it cannot), and even if it had referred the trial court to its

earlier objection (which it did not), the objection would have been

inapplicable.

Fourth, the County reasons that because

references to the policymaker are undefined in the instruction accompanying the

ratification question, the jury would have relied on the instruction in the

preceding question, but the County ignores a later question in which

“policymaker” is used differently. In the question submitting Nagel’s

failure-to-train theory of municipal liability, “policymaker” is used to refer

to Abercia alone. The County did not object that the policymaker was

incorrectly identified in this part of the charge and does not explain its

assumption that jurors would believe that any reference to a “policymaker”

included the entire Precinct One chain of command (consistent with the

instructions to Question Three) and not Abercia alone (consistent with the

instructions to Question Six). [15]

2. As a

matter of law, Constable Abercia was Harris County’s final policymaker

concerning the manner in which mental-health warrants were executed.

In its motion

for en banc reconsideration, the County also made two additional but

contradictory arguments. First, the County treated identification of the final

policymaker as a question of fact, and asserted that the record was “[w]ithout

evidence of a policymaker.” The County nevertheless acknowledged that

“Constable Abercia responded affirmatively to a question asking whether he was

the “‘ultimate policymaker.’” To avoid this testimony (to which no objection

was made at trial), the County then reversed its position and argued that

“whether an official is a final policymaker is a question of law and Constable

Abercia’s legal opinion on the subject is irrelevant.” [16] Given the

apparent confusion about how a “final policymaker” is identified, we address

the County’s arguments and the governing law in greater detail.

On appeal, the County does not identify any

person or entity as its final policymaker concerning the manner in which

mental-health warrants are executed, but instead argues only that Abercia and

the deputy constables are not policymakers. In particular, the County contends

that under binding precedent from this court, a constable is not a final

policymaker for the purposes of § 1983 liability. In support of this

contention, the County relies on Merritt v. Harris County , 775 S.W.2d 17

(Tex. App.—Houston [14th Dist.] 1989, writ denied).

In Merritt , the appellants

complained that after deputy constables executed a writ of restitution (now known

as a writ of possession) [17]

evicting them from their homes, the appellants’ property was sent to a private

warehouseman who either charged excessive fees or did not allow the appellants

to redeem the property at all. Id. at 21 . We wrote that “[u]nder Texas law, Harris County Constables are not

policymaking officials of county government when performing their narrowly

circumscribed duty to execute a writ of restitution .” Id. at 24

(emphasis added). But, as previously discussed, the person or entity capable

of subjecting the government to Monell liability must be an official or

body “responsible under state law for making policy in that area of the

[governmental entity’s] business.” Praprotnik , 485 U.S. at 123 , 108 S.

Ct. at 924 (emphasis in original) (citing Pembaur , 475 U.S. at 482–83

& n.12, 106 S. Ct. at 1298–300 & n.12). Merritt does not apply

here, because the area of the county’s business at issue in that case was

the disposition of property removed in the course of executing a writ of restitution,

whereas the area of the county’s business at issue here is the manner in

which mental-health warrants are executed. These are different areas of the

County’s business, and the final policymaker is not necessarily the same in

both areas. See Pembaur , 475 U.S. at 483 , 106 S. Ct. at 1300

(“[M]unicipalities often spread policymaking authority among various officers

and official bodies. As a result, particular officers may have authority to

establish binding county policy respecting particular matters and to adjust

that policy for the county in changing circumstances.”). Moreover, we

concluded in Merritt that the complained-of misconduct did not

occur until after the writ was executed, and even then, any misconduct was

performed by a private person over whom the constable and deputies exercised no

control. Id. at 23 . Because we held that there was no constitutional

violation by a person or entity acting under color of state law, the question

of who makes policy for the execution of writs of restitution was not before us.

See id. at 24 . Thus, t he entire

discussion in Merritt concerning the identification of the relevant

policymaker is dicta.

Although the County has consistently

maintained that, as a matter of law, neither a constable nor a deputy constable

can be a final policymaker for the County, that contention is only partially

correct. D eputies and constables differ

significantly in their authority to make and enforce policy. A deputy is an

at-will employee [18]

appointed by the constable. Tex.

Loc. Gov’t Code Ann . § 151.001 (West 2008).

As such, a Harris County deputy constable’s actions are subject to review by

the constable, and the constable can terminate the employment of a deputy whose

actions do not conform to departmental policy. See, e.g. , Harris

County v. Vernagallo , 181 S.W.3d 17 , 20–22, 29 (Tex. App.—Houston [14th

Dist.] 2005, pet. denied) (reversing and rendering judgment that deputy

constable take nothing by his wrongful-termination suit where constable fired

deputy for violating departmental policy). As a matter of state law, a deputy

constable is not a final policymaker, because by statute, “[t]he constable is

responsible for the official acts of each deputy of the constable.” Tex. Loc. Gov’t Code Ann .

§ 86.011(c) (West 2008).

In

contrast, a constable, like a justice of the peace or a county commissioner, is

a county officer elected on a precinct-wide basis. Compare Tex. Const . art. V, § 18(a) (providing

for election of constables and justices of the peace by precinct) with id. art.

V, § 18(b) (providing for election of commissioners by precinct) and

id. , art. V, § 24 (setting forth the conditions for removing from

office “County Judges, county attorneys, clerks of the District and County

Courts, justices of the peace, constables, and other county officers ”)

(emphasis added). The constable is not subject to discipline, and the

constable’s actions are not reviewable for conformance to policy. See Tex. Const . art. V, § 24; Tex. Loc. Gov’t Code Ann. § 87.013.

Unlike a deputy, a constable can be removed from office only “for incompetency,

official misconduct, habitual drunkenness, or other causes defined by law, upon

the cause therefor being set forth in writing and the finding of its truth by a

jury.” See Tex. Const .

art. V, § 24; Tex. Loc. Gov’t Code

Ann. § 87.013 .

Although the county commissioners court

exercises “such powers and jurisdiction over all county business” conferred on

it by the state constitution or state law, Tex. Const.

art. V, § 18(b), the parties have not cited, and we have not found,

any legislation, ordinance, or similar enactment authorizing it to set the

policies governing the way in which the deputy constables of a given precinct

execute mental-health warrants. Cf. Brady v. Fort Bend County , 145 F.3d

691, 700, 702 (5th Cir. 1998) (explaining that when Texas law allows no other

official or governmental entity to exert control over a county elected

official’s discretion, the elected official is the final policymaker in that

area of the county’s business). O nly the constable

has supervisory authority over the deputy constables; the commissioners court’s

only authority over the deputies is budgetary. See Renken v. Harris County ,

808 S.W.2d 222 , 225–26 (Tex. App.—Houston [14th Dist.] 1991, no writ). The

constable applies to the commissioners court for the authority to appoint

employees, and in populous counties such as Harris County, the constable also

must describe the duties that these employees will perform. Tex. Loc. Gov’t Code Ann .

§ 151.001. The commissioners court then allocates the funds to pay the

constable and employees. See Tex.

Const. art. XVI, § 61; Tex. Loc.

Gov’t Code Ann . §§ 151.001, 152.001. It approves the number of

deputies the constable may appoint, Tex.

Loc. Gov’t Code Ann . § 151.002, but not the individual

appointments. Id. § 151.003. It has no

authority to appoint or terminate deputy constables. Id. T he

commissioners court can choose to allocate all of the funds for serving

mental-health warrants to a single precinct constable’s office, or to transfer

all such funds—and the accompanying responsibility—to another official

authorized to execute such warrants. Cf. Griffin v. Birkman , 266 S.W.3d

189, 193 , 201–03 (Tex. App.—Austin 2008, pet. denied) (commissioners court

first gave funds and responsibility for executing mental-health warrants to the

constable of a single precinct, then transferred the funds and responsibility

to the sheriff).

Where the commissioners court allocates

all such funds and responsibility to a single precinct constable’s office, that

constable can be said to represent the county in that particular area of the

county’s business. This is so because the identification of the final

policymaker in a given area is a matter of state law, “which may include valid

local ordinances and regulations.” Praprotnik , 485 U.S. at 124–25, 108

S. Ct. at 924–25. The “authority to make municipal policy may be granted

directly by a legislative enactment,” Pembaur , 475 U.S. at 483 , 106 S.

Ct. at 1300 , but policymaking power does not belong exclusively to the

legislature. Id. at 480 , 106 S. Ct. at 1298–99.

Under Texas law, the principal organ of

county government is the commissioners court. Comm’rs Court of Titus County

v. Agan , 940 S.W.2d 77, 79 (Tex. 1997) (citing Tex. Const. art. V, § 1). Its powers and duties “include

aspects of legislative, executive, administrative, and judicial functions.” Id.

In creating the county budget, the commissioners court performs a

legislative function. Griffin , 266 S.W.3d at 194–95. The allocation of

county funds is a policymaking determination. Hooten v. Enriquez , 863

S.W.2d 522, 529 (Tex. App.—El Paso 1993, no writ). And in adopting a budget in

which all of the County’s funds for the service of mental-health warrants were

allocated to the Harris County Precinct One Constable’s office, the County effectively

designated the constable of that precinct as the final official policymaker

concerning the manner in which those warrants were served.

As Abercia testified, the Precinct One

Constable’s office has sought and received responsibility and funding for the

execution of all of the mental-health warrants in Harris County since the early

1970’s. He further affirmed that, should such warrants be issued initially to another

precinct or to the police or sheriff’s department, the warrants are routed to

the Precinct One Constable’s office for execution. Moreover, the County conceded in its appellate brief that the Precinct

One Constable’s office executes all of the mental-health warrants in Harris

County. See Tex. R. App .

P. 38.1(g). And as we have shown, the constable is the only official who has

supervisory authority over the deputies and is responsible for their official

conduct as a matter of state law. Thus, at all relevant times, Abercia has

been the final policymaker concerning the manner in which mental-health

warrants are executed in Harris County. [19] Although we measure the sufficiency of the

evidence against the charge given, we need not consider whether a rational jury

so charged could have found that anyone else ratified the deputies’ decisions

if the evidence is legally sufficient for the jury to conclude that Abercia did

so.

3. A rational jury

could have concluded that Abercia ratified the deputies’ decision to use

excessive force.

We must sustain the jury’s ratification finding

if, after reviewing all of the evidence in the light most favorable to the

verdict, we conclude that a rational jury could have found that Abercia either approved

the deputies’ decisions and the basis for them, or (a) reviewed the events that occurred on the day of Casey’s death, (b) knew

that the deputies used excessive force, and (c) did not discipline the deputies

for their conduct. The evidence is sufficient under either formulation.

First, there

is legally sufficient evidence that Abercia reviewed the events surrounding

Casey’s death. In particular, Abercia testified that before speaking with his

second-in-command, Chief Michael Butler, and Butler’s subordinate, Captain Harry

Cunningham, Abercia independently investigated the events of February 18,

2005. As Abercia stated, “I’ve been in that office 38 and a half years, so I’m

well-versed on what can be right and what can be wrong.” According to Abercia,

his own review was sufficient to allow him to determine if the deputies did

anything wrong. We acknowledge that Abercia made many other statements that cannot

be reconciled with this statement. For example, Abercia also testified, “I can

only tell you what I’m told,” and stated that he did not speak to any of the

eyewitnesses; did not read Nagel’s statement; did not read any of the deputies’

reports of the incident; did not review the autopsy report; did not know how

many times Casey was shocked with the taser; did not know what restraints were

used; did not know that Casey was hogtied; did not know that deputies in the

mental-health warrants division routinely receive field-training in hogtying;

did not know that one of the deputies involved in this incident placed his knee

on Casey’s neck; did not know what injuries Casey received; did not know

Casey’s cause of death; and did not know that Casey’s death was determined to

be a homicide. In accordance with the legal-sufficiency standard of review, however,

we presume that the jury resolved conflicts in the evidence in a manner that

supports the verdict.

The evidence also is legally sufficient to allow

a reasonable jury to conclude that Abercia knew the force used was clearly

excessive to the need, but did not discipline the deputies. Abercia stated

that leg restraints of the type used to restrain Casey are “very dangerous,”

and he agreed that hogtying—which he described as “[b]uckling them down where

they can’t move anywhere” and “they can’t move their legs or arms

independent[ly]”—is “abusive.” It is beyond dispute, however, that this is what

the deputies did to Casey.

Abercia also agreed that if his subordinates

engaged in a practice he thought was dangerous or wrong, he would stop it. He

nevertheless testified, “I didn’t see anything that I could pinpoint as being

wrong because we run into similar to this almost every day.” And

significantly, he agreed that his deputies “can just keep carrying on out there

handling mentally-ill medical patients the same way they have in this case.”

Concealment also can support an inference that

the constitutional violation was officially approved. See, e.g. , Marchese

v. Lucas , 758 F.2d 181 , 187–88 (6th Cir. 1985); Webster v. City of Houston , 689

F.2d 1220, 1227 (5th Cir. Tex. 1982). Here, there is ample evidence from which

a reasonable jury could conclude that there was a concerted effort to conceal

the extent of the force used against Casey. Chief Butler testified that

Abercia told him not to investigate the deputies’ conduct, but to leave the

investigation to the Houston Police Department. As Butler stated, “The

Constable is of the opinion that if it’s an independent investigation to clear

his officers, then that’s good enough for him.” In accordance with Abercia’s

directives, his subordinates “have to stand down and do what the Constable has

instructed us to do.” Butler therefore did not review relevant evidence,

because, as he explained, “My focus was to make sure that the deputies were

cleared of any wrongdoing.”

A reasonable jury

could infer that Sergeant Leija and the deputies acted under similar

instructions. According to Thomas’s witness statement, Sergeant Leija, the

mental-health warrants division supervisor who was on duty when these events

occurred, arrived at Casey’s house even before emergency medical services. She

immediately ordered the deputies to go to the hospital and find out if they

needed treatment for exposure to Casey’s hepatitis. While paramedics attempted

to revive Casey—and before detectives from the Houston Police Department

arrived at the scene—the deputies drove away, thereby removing the vehicle and

any evidence it contained. According to the written statements they prepared

the next day, Gehring and Young initially put Casey into their car while he was

merely handcuffed, and used additional restraints only after he tried to kick through

a window. But according to Mrs. Nagel and the precinct’s own dispatch log, the

only time Casey was placed in the deputies’ vehicle was immediately before the

deputies noticed that he wasn’t breathing. [20] Because the deputies had removed the vehicle from

the scene at Leija’s direction, the car was not examined for scratched windows,

scuffed doors, or other evidence of resistance to resolve the discrepancy.

After leaving the

scene, the deputies discussed the events that occurred at Casey’s home. Gehring

called his lawyer; Young called his union representative; [21] and while they were still at the hospital, the

deputies had a group meeting with an attorney. According to Cavitt, the

attorney told them “what we needed to be aware of before we filled out

statements.” In several important respects, the dispatch log and the data

retrieved from the taser—both of which were created contemporaneously with the

events they record—contradict the deputies’ statements prepared the next day. [22]

Leija and another

officer, Sergeant Sigue, reviewed the deputies’ statements, and based on that

review, Sigue prepared a taser-use report. One of the sergeants’ purposes in

preparing the report was “to be sure that all of the Constable’s policies and

procedures were being followed,” and as Leija agreed at trial, the deputies

“did just what they were supposed to do.” In the report, Sigue identified the

number of taser cycles applied as “1” and denied there was a “need for an

additional shot” from the taser. The report also called for an officer to

state whether an “authorized control hold” was applied, and Sigue responded in

the affirmative, but he identified the authorized control hold used as

“handcuffs.” Leija testified that she reviewed the report for accuracy before

it was passed to the homicide detectives investigating Casey’s death, but if

the jury credited Thomas’s statement that Leija arrived at Casey’s home even

before the paramedics, then she would have been on the scene while Casey was

still hogtied. She nevertheless maintained at trial that the report was

accurate even though leg restraints were not mentioned.

Although the length

of the leg restraints was vigorously disputed, the restraints themselves were

not preserved as evidence, but were returned to Gehring. On the second day of

trial, it was reported that this evidence was missing.

Finally, the evidence is uncontroverted that no

one involved in these events was disciplined—indeed, in the four years between

Casey’s death and this trial, Leija was promoted from sergeant to captain—and

Abercia has made no changes in policy regarding the use of force in executing

mental-health warrants. Cf . Grandstaff v. City of Borger , 767

F.2d 161 , 171–72 (5th Cir. 1985) (where unconstitutional use of deadly force

was followed by “little attention and action,” no discipline, and no policy

changes, jury was entitled to infer that the unconstitutional conduct

“demonstrated the policy of the [police force] as approved by its

policymaker”).

Considering this record in the light most

favorable to the jury’s verdict, we conclude that there was legally sufficient

evidence to support the ratification finding; thus, the trial court did not err

in denying the County’s motion for directed verdict, submitting the ratification

question, and entering judgment against the County. We therefore overrule the

County’s third, fourth, and seventh issues.

V. Conclusion

On this record,

the evidence is legally sufficient to support the jury’s findings against

deputies Gehring, Young, and Cavitt, and to support the conclusion that they

are not entitled to qualified immunity. The evidence also is legally

sufficient to support the finding that the County, acting through Constable

Jack Abercia as the final policymaker in this area of the County’s business,

ratified the deputies’ excessive use of force. We therefore affirm the

judgment without addressing the County’s remaining issues.

/s/ Tracy

Christopher

Justice

Panel consists of Justices

Seymore, Boyce, and Christopher.

[1] See infra , section

III.B.2.

[2] Green is not a doctor; he

is a pharmacy technician.

[3] On those occasions, Nagel

telephoned 911 and knew that police would respond. This time, however, she

arranged for Casey’s transport through his doctor’s office, and expected a

mental-health team to escort him to the hospital. Nagel further testified that

when she called the telephone number Green had given her, Sergeant Leija

answered the phone by saying, “Harris County Psychiatric Center” or “Harris

County Mental Health.” Leija actually works for the Precinct One Constable’s

office in the mental-health warrants division.

[4] See La Grange

v. Nueces County , 989 S.W.2d 96 , 103 & n.3 (Tex. App.—Corpus Christi

1999, pet. denied) (explaining that a four-point restraint applied to someone

who is lying face-down is known as a “hog-tie”); see also Webster’s Third New International Dictionary 1077 (Philip Babcock Gove ed., 3d ed.

1993) (“Hog-tie: to make (a thrown animal) helpless by tying the hind legs

together and then to one or both front legs with a short line < hog-tying

calves for branding>”).

[5] Spitz and Fisher’s Medicolegal Investigation of Death: Guidelines

for the Application of Pathology to Crime Investigation 833 (Werner U.

Spitz ed., 4th ed. 2006).

[6] This language was taken

directly from Graham v. Connor . See Graham , 490 U.S. at 396 , 109

S. Ct. at 1872 (“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 396–97, 109 S. Ct. at 1872

(“The calculus of reasonableness must embody allowance 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 397, 109 S. Ct. at 1872

(“As in other Fourth Amendment contexts, however, the ‘reasonableness’ inquiry

in an excessive force case is an objective one: 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.”).

[7] See Anderson , 483

U.S. at 639 , 107 S. Ct. at 3038 (“[W]hether an official protected by qualified

immunity may be held personally liable for an allegedly unlawful official

action generally turns on the ‘objective legal reasonableness’ of the action .

. . assessed in light of the legal rules that were ‘clearly established’ at the

time it was taken.” (quoting Harlow , 457 U.S. at 818, 819 , 102 S. Ct. at

2738, 2739 )).

[8] The quoted instructions

were drawn almost verbatim from the Fifth Circuit’s pattern jury instruction

for use in Fourth-Amendment excessive-force cases, and are similar to the

pattern jury instructions recommended nationally for use in such cases. Compare

Fifth Circuit Pattern Jury Instructions

(Civil) No. 10.2 (2009) with Kevin

F. O’Malley et al., 3B Fed. Jury Prac. & Instr . § 165.23 (5th

ed. 2001). The Fifth Circuit Court of Appeals not only encourages the use of

pattern jury instructions, see United States v. Tomblin , 46 F.3d 1369 ,

1380 n.16 (5th Cir. 1995), but for at least a decade has specifically approved

the submission of qualified immunity in the form of an instruction. See,

e.g. , Sikes v. Gaytan , 218 F.3d 491, 494 (5th Cir. 2000); see

also Meadours v. Ermel , No. 09-20150, 2011 WL 334679 , at *2 (5th

Cir. Feb. 3, 2011) (per curiam) (holding that this language was an adequate

instruction to the jury that qualified immunity applies to actions that

violated the decedent’s constitutional rights if a reasonable officer could

believe, even mistakenly, that those actions were constitutional); Littrell

v. Franklin , 388 F.3d 578, 587 (8th Cir. 2004) (“Importantly, the Supreme

Court has not censured the Fifth Circuit’s practice. This is true even though

there exists a split among the circuits as to the proper apportionment of

responsibility between juries and judges in this context.”); Rigdon Marine

Corp. v. Roberts , 270 S.W.3d 220, 230 (Tex. App.—Texarkana 2008, pet.

denied) (finding no abuse of discretion where the trial court relied on a Fifth

Circuit pattern jury instruction in charging the jury on federal law).

[9] The defendants’ attorney

stated that they were tendering a proposed question on qualified immunity, but

it is not in the record. The trial court stated on the record that the

proposed question “in effect says: Do you find that no reasonable officer who

knew the clearly established law on February 18, 2005, and the circumstances

surrounding the use of force against Joel Casey by the officers could have believed

that this use of force was lawful?”

[10] The instruction is

framed in terms of objective reasonableness, but the jury was asked whether the

deputies’ conduct was objectively unreasonable. The parties do not complain of

this difference.

[11] There is no evidence

that any of the deputies was a member of that organization.

[12] We do not imply that a

different standard applies when deadly force is used. Regardless of the type

or extent of force used, courts reviewing excessive-force cases under the

Fourth Amendment focus on whether the officers’ conduct was objectively

reasonable. See Scott v. Harris , 550 U.S. 372, 382 , 127 S. Ct. 1769,

1777 , 167 L. Ed. 2d 686 (2007).

[13] Texas state courts use

the term ratification in such exemplary-damages cases in the same way

that the United States Supreme Court used the term in Praprotnik : in

both, a principal ratifies its agent’s act if the principal knows how and why

the agent acted and approves. Compare Praprotnik , 485 U.S. at

127 , 108 S. Ct. at 926 (explaining that governmental liability can arise from

ratification when “the authorized policymakers approve a subordinate’s decision

and the basis for it”) with Restatement

of Torts § 909 (1939), cmt. a (“[A] person on whose account another

has acted should be responsible for an outrageous act where otherwise he would

not be if, with full knowledge of the act and the way in which it was done, he

ratifies it . . . .”) and King v. McGuff , 149 Tex.

432 , 434–35, 234 S.W.2d 403, 405 (1950) (holding, under the common-law

predecessor to Texas Civil Practice and Remedies Code section 41.005, that

section 909 of the Restatement of Torts expresses Texas’s prevailing rule

governing a principal’s liability for punitive damages based on the agent’s

wrongdoing).

[14] Unlike the issue of

qualified immunity, there is no pattern jury charge in the Fifth Circuit for

governmental liability based on ratification. But see Third Circuit Model Jury Instructions (Civil) ,

No. 4.6.5, cmt. (2010) (explaining that a policymaker’s agreement with a

subordinate’s decision to violate another’s constitutional rights can occur

after the violation has occurred); Manual

of Model Civil Jury Instructions for the

District Courts of the Ninth Circuit , Instruction No. 11.3.1 (1997)

(defining “official policy” to include “an act or omission ratified by the

[County’s] lawmaking officer or policy-making official”).

[15] The instructions in this

question refer to the policymaker of the constable’s office rather than the

policymaker of the County, but another instruction informed the jury that the

County was liable if a Precinct One policy was “the moving force of an injury”

to Casey. In effect, the jury was told that the policies of the Precinct One

Constable’s office were the County’s policies. And, as explained in the next

section, it is correct that Abercia is the County’s final policymaker as to the

way in which mental-health warrants are executed.

[16] This is similar to the

County’s argument in the trial court, discussed at III.B.1, supra , that

the state of the clearly established law is a question of fact on which the

plaintiff is not allowed to present evidence.

[17] See 1925 Tex. Rev. Civ. Stat. art. 3993, repealed

by Act of May 12, 1939, 46th Leg., R.S., ch. 25, § 1, 1939 Tex. Gen.

Laws 201 , 201 (current version at Tex.

R. Civ . P. 755); see also Tex.

R. Civ . P. 749a, cmt. to 1990 amendment, 53 Tex . B.J. 1033, 1035 (1990) (“The term writ of restitution is

corrected to writ of possession.”).

[18] County of Dallas v.

Wiland , 216 S.W.3d 344 , 347–48 (Tex. 2007); Gillis v. Wooten , No.

14-03-01134-CV, 2004 WL 1406299 , at *4 (Tex. App.—Houston [14th Dist.] June 24,

2004, no pet.) (mem. op.) (affirming summary judgment against former Harris

County deputy constable in his wrongful-termination suit against the constable

and the county on the ground that deputy was an at-will employee).

[19] Abercia further

confirmed at trial that the county commissioners court appropriated funds for

the Harris County Precinct One Constable’s office to serve all of the

mental-health warrants in the county; that he has the right to change anything

in his department; and that he is the “ultimate policymaker,” the “head

policymaker,” the “head man,” and “the buck stops with [him].” As Abercia phrased

it, “I’ve got the last say-so . . . .”

[20] According to the

dispatch log, there were a series of five transmissions at 4:48 p.m. These

included “pt still fighting”; “all units priority one”; “advise slow down units

subject in vehicle”; and “pt in vehicle under control.” At 4:49 p.m., one of

the deputies radioed, “request EMS subject not breathing/unresponsive . . . .”

[21] Gehring and Young each

may be referring to a single attorney retained by their union.

[22] According to the

dispatch log, Deputy E.G. Lopez arrived on the scene at 4:50 p.m., and at 4:59

p.m., Lopez radioed “taser darts deployed/uneffective on the scene.” Thus, the

Constable’s office was not notified that a taser had been used until advised by

an officer who arrived on the scene after Casey’s death. Young wrote in his

statement that he used the taser twice, but he initially testified at trial

that he used the taser once.