Tammy Cass v. City of Abilene

Case: 14-11134 Document: 00513394264 Page: 1 Date Filed: 02/24/2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

February 24, 2016

No. 14-11134

Lyle W. Cayce

Clerk

TAMMY CASS, Individually, and as Executor of the Estate of Marcus Cass,

Deceased; MATTHEW CASS; JERRY CASS; KYLE CASS; NATHAN CASS,

Plaintiffs – Appellants,

v.

CITY OF ABILENE; CHIEF OF POLICE STAN STANDRIDGE; CHRIS

SMITH,

Defendants – Appellees.

Appeal from the United States District Court

for the Northern District of Texas

Before DAVIS, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:

Officer Chris Smith, a detective with the Abilene Police Department

(APD), fatally shot Marcus Cass during the execution of a warrant to collect

certain business records of Abilene Gold Exchange, where Cass worked. Cass’s

surviving family members (Appellants) sued the City of Abilene, along with

Smith and Chief of Police Stan Standridge in their individual capacities,

alleging retaliation in violation of the First Amendment and various Fourth

Amendment violations. Appellants appeal the district court’s summary

judgment order dismissing their excessive force and retaliation claims against

Smith and Standridge on the basis of qualified immunity. Because Appellants

Case: 14-11134 Document: 00513394264 Page: 2 Date Filed: 02/24/2016

No. 14-11134

produced no summary judgment evidence that Standridge was involved with

the execution of the warrant or Cass’s death, we AFFIRM summary judgment

on all claims against him. Although a reasonable jury could find that the

manner in which Smith executed the warrant was unconstitutional and

neither the district court nor the parties has addressed whether the violation

was clearly established in the law, we AFFIRM summary judgment on

Appellants’ Fourth Amendment claim as it relates to the execution of the

warrant because Appellants have not shown that Smith violated clearly

established law. We AFFIRM summary judgment on Appellants’ remaining

claims against Smith because Appellants have not raised fact issues to support

constitutional claims for retaliation or for excessive force as it relates to

Smith’s shooting of Cass.

I.

A.

Until his death on December 13, 2012, Marcus Cass—together with

Charles Camp—managed Abilene Gold Exchange, one of about eight similar

businesses in Abilene, Texas that purchased jewelry and precious metals for

cash. Cass and Camp maintained firearms at several easily accessible

locations in the store, and signs on the front door warned that the employees

were armed. Although Camp had a thirty-year-old felony conviction for

possessing marijuana, Cass had no criminal record and could legally possess

firearms. Abilene Gold Exchange had cooperated with APD in solving past

crimes, and on several occasions APD officers had walked into the store and

spoken with its employees without incident.

Nevertheless, multiple APD officers testified in depositions that Camp

and Cass displayed an “anti-police” attitude, and particularly that they were

unhappy with the burden of complying with state and local law requiring

reporting of Abilene Gold Exchange’s purchases. Early in 2012, APD began

2

Case: 14-11134 Document: 00513394264 Page: 3 Date Filed: 02/24/2016

No. 14-11134

developing a proposed city ordinance that would require purchasers of precious

metals to—among other things—hold purchased items for at least eleven days

to give officers time to recover stolen items. A week before Cass’s death, the

Abilene City Council held a public meeting to discuss the proposed ordinance.

Chief of Police Stan Standridge was the primary proponent of the ordinance at

the meeting. Cass spoke in opposition to the eleven-day holding requirement,

as did Ronald DeLauney, the owner of another gold exchange store. Both Cass

and DeLauney emphasized that because the price of gold is highly volatile, an

eleven-day holding requirement could have severe consequences when the

price dropped after they purchased items. Cass also stated that APD had

earlier told him that the ordinance was already in effect, which he found “a

little disturbing.” DeLauney testified in his declaration that “Chief Standridge

became visibly angry during Marcus Cass’ testimony.” After hearing from

Standridge, Cass, DeLauney, and others, the city council narrowly adopted the

ordinance with a compromise holding period of seven days.

Five days later, Smith, a detective newly assigned to APD’s property

crimes unit, called Abilene Gold Exchange as part of his investigation into a

recent jewelry theft. Smith testified in his deposition that Camp answered the

phone, Smith identified himself and told Camp what he was looking for,

including the names of some individuals Smith was investigating, and Camp

“was obviously upset, got upset on the phone, [and] started ranting and yelling

at [Smith].” Smith testified that this reaction was unusual and made him

suspicious, and that when Smith discussed it with his colleagues, they

informed him that Abilene Gold Exchange should have been reporting its

purchases in Leads Online, an online database used by purchasers of fine

3

Case: 14-11134 Document: 00513394264 Page: 4 Date Filed: 02/24/2016

No. 14-11134

metals to satisfy the reporting requirements of the Texas Occupations Code. 1

Smith investigated Abilene Gold Exchange’s recent Leads Online reporting

and discovered that no new purchases had been entered during the prior three

weeks and that some earlier transactions had not been reported within forty-

eight hours as required by law.

Based on his research, Smith suspected that Abilene Gold Exchange

might be fencing stolen property and that he had probable cause to obtain a

warrant for the reporting violations. On December 12, the day after he spoke

with Camp, Smith submitted an affidavit to a state district judge and obtained

a warrant authorizing him to search Abilene Gold Exchange’s physical and

electronic records for evidence pertaining to the reporting violations.

The next morning, the property crimes unit met to discuss executing the

warrant, as is customary in APD. Although Smith’s initial plan had been to

simply walk in with another officer and serve the warrant, other officers who

“were more familiar with the Gold Exchange” raised concerns about officer

safety due to Cass and Camp’s “anti-police” attitude, the presence of readily-

accessible weapons in the store, and the possibility that Cass and Camp might

be “hiding something” that would cause them to shoot police officers. 2 Camp’s

felony conviction was also discussed as a factor to consider. Lieutenant Gary

1 See Tex. Occ. Code § 1956.062(a) (“A dealer shall . . . report all identifiable crafted

precious metal that the dealer purchases, takes in trade, accepts for sale on consignment, or

accepts for auction.”). The Texas Occupations Code requires that the purchaser “deliver” the

required information to the chief of police within forty-eight hours, id. § 1956.062(d)(2), and

APD had approved of purchasers using Leads Online to satisfy this requirement.

2 Smith testified that he had never met or seen Camp or Cass, and that he had never

been to Abilene Gold Exchange; his phone call with Camp the day before was his sole contact

with the business. Smith also testified that he was uninvolved with any discussions or

planning related to the reporting ordinance, that he was unaware of and did not attend the

city council meeting at which Cass opposed the ordinance, and that he did not learn of Cass’s

opposition to the ordinance until after he had requested the warrant. This testimony is

uncontroverted, although Appellants argue that it is not credible.

4

Case: 14-11134 Document: 00513394264 Page: 5 Date Filed: 02/24/2016

No. 14-11134

Bone, the head of the Criminal Investigation Division which included the

property crimes unit, decided that for the safety of the officers, a team in body

armor led by a uniformed officer would enter the business quickly with guns

drawn to secure the premises and execute the warrant.

The available officers of the property crimes unit, led by Sergeant

Kenneth Robinson and joined by patrol officer Tim Pipes, caravanned to

Abilene Gold Exchange and parked down the street, out of sight of the

business. Pipes was in his regular police uniform, and the other three officers

who would enter the business were wearing street clothes under bullet-proof

vests. Smith’s vest was solid black; the only indication of his identity as a

police officer was his badge, which was attached to his belt on Smith’s right

side. Smith was also wearing dark sunglasses, which he did not remove upon

entering the building. Unlike Smith, the other two officers on the entry team,

Chris Collins and Chris Adams, had “POLICE” written in large white letters

across their bullet-proof vests. Collins carried an assault rifle and the other

officers entered with drawn handguns. Other officers waited at the back of the

building.

The raid was captured on Abilene Gold Exchange’s three video cameras.

Pipes entered first, immediately walking to the counter in the center of the

room and pointing his gun toward Camp, who was seated in a small office

behind the counter on the officers’ right. Smith entered second, walking

around the counter along the left-most wall toward a second back office in

which Cass was located, to the left of Camp’s office from the officers’ point of

view. Adams and Collins followed Smith. As Smith approached Cass’s office,

Cass was walking toward the doorway from inside the back room. It appears

from the video recording that the officers and Cass could not see each other,

but that Cass heard someone enter and was walking to the doorway to greet

the person. As Smith walked forward along the wall, his drawn gun, which

5

Case: 14-11134 Document: 00513394264 Page: 6 Date Filed: 02/24/2016

No. 14-11134

was extended in front of him, crossed the open doorway and was the first thing

Cass saw. At that point, Cass began to draw his own gun, which was holstered

at his right hip. Smith continued walking forward, and as he came to the

doorway, he saw Cass drawing his gun and raising it toward Smith. Because

Smith was not wearing a vest marked “POLICE” and his badge was on his

right side opposite Cass, nothing Cass could see indicated that Smith was a

police officer; Cass saw only a gunman dressed in black body armor and dark

sunglasses. Smith stepped to the right and fired twice, causing Cass to drop

his gun and slump to the floor. The entire sequence occurred rapidly; Cass was

shot about seven seconds after Pipes first set foot in the building.

The videos of the raid do not include audio recording, and the parties

dispute what the officers said as they entered. Smith, Pipes, Adams, and

Collins each testified that they personally yelled some variation of “police” and

“search warrant.” Officer Cati Shriver, who remained outside until after Cass

had been shot, testified that she was “maybe 50 feet” from the door and heard

someone yelling loudly “Police, search warrant” just before the two gunshots.

Bill Adams, a bystander, testified in his declaration that he was standing

“about 20 to 25 feet from the front door of [Abilene Gold Exchange]” when the

raid occurred, and that “I was expecting to hear [the officers] yell ‘police’ [or]

‘search warrant,’ but did not hear them yell anything. A few seconds later, I

heard two gunshots.” In a declaration made in connection with his subsequent

criminal prosecution, Camp gave the following account:

On the morning of December 13, 2012, the warrant was executed

in a military fashion with all officers entering rapidly and yelling

instructions. . . . While the police claimed they yelled “police,

search warrant,” the only statement heard by Camp as he sat at a

desk in an adjoining office was “get your hands up.” Camp never

heard anyone yell “police, search warrant.” Camp contends the

police were yelling loudly and it was difficult to discern the words

they were yelling.

6

Case: 14-11134 Document: 00513394264 Page: 7 Date Filed: 02/24/2016

No. 14-11134

It is undisputed that Camp was compliant with the officers’ instructions

throughout the raid.

After the shooting, the officers quickly secured the premises, handcuffed

Cass, and began administering first aid. Paramedics arrived within minutes,

but Cass succumbed to his wounds. In the following hours, APD officers

obtained separate warrants for Abilene Gold Exchange and the neighboring

business, and conducted a thorough search of the premises. Camp was

arrested for unlawful possession of a firearm, and was later indicted for not

paying approximately $150 in state taxes for purchases made over the internet.

Appellants argue that APD has harassed and intimidated parties and

witnesses to the shooting in an effort to cover up its misconduct.

Standridge was in San Antonio on the day of Cass’s death and there is

no summary judgment evidence that he was involved with procuring and

executing the warrant or planning the raid.

B.

Cass’s widow, children, and mother sued the City of Abilene, along with

Smith and Standridge in their individual capacities, alleging under 42 U.S.C.

§ 1983 that: (1) Smith and Standridge retaliated against Cass for speaking out

against the proposed ordinance in violation of the First Amendment; and (2)

Smith and Standridge used excessive force when they “unlawfully arrested,

assaulted, used force against, seized and detained Cass without probable

cause, or reasonable suspicion that any violation or crime had been committed”

and “Smith’s actions in undertaking the unnecessary raid and doing so without

announcing his position as a police officer are objectively unreasonable” in

violation of the Fourth Amendment. 3 Smith and Standridge moved for

3 Cass’s widow, Tammy Cass, as executor of Cass’s estate, also brought § 1983 claims

against “Defendants” for wrongful seizure of Cass’s property under the Fourth and

Fourteenth Amendments. These claims were not addressed in the summary judgment

7

Case: 14-11134 Document: 00513394264 Page: 8 Date Filed: 02/24/2016

No. 14-11134

judgment on the pleadings and for summary judgment, arguing that they were

entitled to qualified immunity, and also objected to various statements in the

evidence proffered by Appellants.

The district court sustained Smith and Standbridge’s evidentiary

objections and granted their summary judgment motion in full. The district

court determined that Appellants’ excessive force claim failed because Smith’s

use of force was a reasonable response to Cass’s drawing his gun on Smith and

Standridge was uninvolved in the shooting. The district court agreed that “the

style and manner of executing the search warrant” was not “the wisest plan,”

but that it was “at best negligent conduct and cannot form the basis of a

constitutional violation.” The district court also determined that no genuine

issue of material fact existed regarding the officers’ announcement that they

were police officers. Finally, the district court rejected Appellants’ First

Amendment retaliation claim because there was no evidence that Smith was

aware of Cass’s protected speech when obtaining and executing the warrant

and because Standridge, who was aware of the speech, was uninvolved in the

decisions relating to the warrant.

In light of its summary judgment ruling, the district court denied as moot

Smith and Standridge’s motion for judgment on the pleadings and signed a

final judgment dismissing with prejudice all claims against Smith and

Standridge in their individual capacities.

Appellants appeal the district court’s summary judgment ruling. 4

motion or the district court’s order, but the district court’s final judgment order dismissed

“all claims” against Smith and Standridge in their individual capacities. To the extent that

these additional claims were alleged against Smith and Standridge in their individual

capacities, Appellants have not appealed their dismissal. Appellants’ claims against the City

of Abilene were not part of the district court’s summary judgment ruling or final judgment

and are not before us on appeal.

Appellants also appeal the district court’s exclusion of two statements by Robert

4

DeLauney, another gold buyer who occasionally worked at the Abilene Gold Exchange. The

8

Case: 14-11134 Document: 00513394264 Page: 9 Date Filed: 02/24/2016

No. 14-11134

II.

A.

“A grant of summary judgment is reviewed de novo, applying the same

standard on appeal that is applied by the district court.” Tiblier v. Dlabal, 743

F.3d 1004, 1007 (5th Cir. 2014). A district court “shall grant summary

judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56. “A court considering a motion for summary judgment must

consider all facts and evidence in the light most favorable to the nonmoving

party.” Haverda v. Hays Cty., 723 F.3d 586, 591 (5th Cir. 2013). “However, to

avoid summary judgment, the non-movant must go beyond the pleadings and

come forward with specific facts indicating a genuine issue for trial.” LeMaire

v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007). Furthermore,

“when there is video evidence available in the record, the court is not bound to

adopt the nonmoving party’s version of the facts if it is contradicted by the

record, but rather should ‘view[] the facts in the light depicted by the

videotape.’” Harris v. Serpas, 745 F.3d 767, 771 (5th Cir. 2014) (quoting Scott

v. Harris, 550 U.S. 372, 381 (2007)), cert. denied, 135 S. Ct. 137 (2014).

B.

Qualified immunity protects government officials from civil liability in

their individual capacity to the extent that their conduct does not violate

clearly established statutory or constitutional rights. Trent v. Wade, 776 F.3d

368, 377 (5th Cir.), reh’g denied, 801 F.3d 494 (2015). “A good-faith assertion

district court did not abuse its discretion in determining that DeLauney lacked personal

knowledge that Camp “never threatened police and always complied with their requests” or

that Standridge “was trying to intimidate [Cass and DeLauney],” and in any event, any error

was harmless. See United States v. Tuma, 738 F.3d 681, 687 (5th Cir. 2013) (review of district

court’s evidentiary rulings is for abuse of discretion, subject to harmless error analysis).

9

Case: 14-11134 Document: 00513394264 Page: 10 Date Filed: 02/24/2016

No. 14-11134

of qualified immunity alters the usual summary judgment burden of proof,”

shifting it to the plaintiff to show that the defense is not available. Trent, 776

F.3d at 376 (internal quotation marks omitted); accord McClendon v. City of

Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc).

A plaintiff seeking to overcome qualified immunity must show: “(1) that

the official violated a statutory or constitutional right, and (2) that the right

was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-

Kidd, 131 S. Ct. 2074, 2080 (2011). Courts of appeal are free to decide which

of the two prongs of the qualified immunity analysis to address first. Id.; see

also Camreta v. Greene, 131 S. Ct. 2020, 2032 (2011) (“[I]t remains true that

following the two-step sequence—defining constitutional rights and only then

conferring immunity—is sometimes beneficial to clarify the legal standards

governing public officials.”). The second prong is satisfied only if “the state of

the law at the time of the incident provided fair warning to the defendants that

their alleged [conduct] was unconstitutional.” Tolan v. Cotton, 134 S. Ct. 1861,

1866 (2014) (internal quotation marks omitted).

III.

A.

The district court correctly concluded that Standridge is entitled to

qualified immunity on all of Appellants’ claims because there is no summary

judgment evidence that he was involved in the alleged constitutional

violations. The uncontroverted summary judgment evidence is that: (1)

Standridge did not direct Smith or any other APD employee to investigate

Cass, Camp, or Abilene Gold Exchange or to obtain or execute a warrant on

them; (2) Standridge did not participate in the preparation of and request for

the warrant and was unaware of the warrant until the morning it was

executed; and (3) Standridge was in San Antonio on December 12 and 13, 2012

when APD obtained and executed the warrant, resulting in Cass’s death.

10

Case: 14-11134 Document: 00513394264 Page: 11 Date Filed: 02/24/2016

No. 14-11134

Although Appellants argue that this evidence is not credible, they conceded at

oral argument that there is no evidence that Standridge knew about or was

involved in planning the raid. This ends our inquiry. See Celotex Corp. v.

Catrett, 477 U.S. 317, 322–23 (1986) (“[T]he plain language of Rule 56(c)

mandates the entry of summary judgment, after adequate time for discovery

and upon motion, against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial. In such a situation,

there can be ‘no genuine issue as to any material fact,’ since a complete failure

of proof concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.”). With no evidence that

Standridge was involved in the acts that allegedly violated Cass’s

constitutional rights, Standridge cannot be liable under § 1983, and he is

therefore entitled to qualified immunity on all of Appellants’ claims against

him. See Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983) (“Personal

involvement is an essential element of a civil rights cause of action.”) (citing

Rizzo v. Goode, 96 S. Ct. 598, 604-05, 607 (1976)).

B.

Appellants’ claims against Smith, who personally investigated Abilene

Gold Exchange, procured the warrant, and shot Cass, merit closer

examination. As articulated in their briefs and at oral argument, Appellants’

three claims are that: (1) Smith retaliated against Cass for speaking out

against APD’s proposed ordinance in violation of the First Amendment; (2)

Smith used excessive force in violation of the Fourth Amendment when he

fatally shot Cass; and (3) the unnecessarily forceful execution of the warrant

violated Cass’s Fourth Amendment rights.

11

Case: 14-11134 Document: 00513394264 Page: 12 Date Filed: 02/24/2016

No. 14-11134

1.

“The First Amendment prohibits not only direct limits on individual

speech but also adverse governmental action against an individual in

retaliation for the exercise of protected speech activities.” Keenan v. Tejeda,

290 F.3d 252, 258 (5th Cir. 2002). To establish a First Amendment retaliation

claim, a plaintiff must show that: (1) he was engaged in constitutionally

protected activity; (2) the defendant’s actions caused him to suffer an injury

that would chill a person of ordinary firmness from continuing to engage in

that activity, and (3) the defendant’s adverse actions were substantially

motivated by the constitutionally protected conduct. Id.

It is undisputed that Appellants have established the first two elements

of their claim against Smith. Cass’s public opposition to APD’s proposed

reporting ordinance was protected speech under the First Amendment.

Smith’s procurement of a warrant to inspect Abilene Gold Exchange’s business

records, and the execution of that warrant through a tactical raid with drawn

guns would likely deter an ordinary person from further similar speech.

Appellants argue that the investigation and raid on Abilene Gold Exchange

were substantially motivated by Cass’s protected speech at the city council

meeting a week before his death. Smith counters that Appellants cannot prove

retaliation because the warrant was supported by probable cause and Smith

did not make the decision to tactically execute the warrant.

In Keenan, we considered “a situation in which law enforcement officers

might have a motive to retaliate but there was also a ground to charge criminal

conduct against the citizen they disliked,” and concluded that “[i]n that

situation, the objectives of law enforcement take primacy over the citizen’s

right to avoid retaliation.” Id. at 261–62. In applying the test for qualified

immunity, we explained that “[i]f probable cause existed . . . or if reasonable

police officers could believe probable cause existed, they are exonerated.” Id.

12

Case: 14-11134 Document: 00513394264 Page: 13 Date Filed: 02/24/2016

No. 14-11134

at 262. Although Keenan involved allegedly retaliatory criminal charges, its

standard is readily applicable to Smith’s request for a warrant in this case,

which also required probable cause.

The evidence is uncontroverted that Smith, in the course of investigating

a property theft, discovered that Abilene Gold Exchange had submitted over

two dozen entries on Leads Online after the forty-eight hour window allowed

by the Texas Occupation Code, and that it had not reported any transactions

in the past three weeks, despite having been open for business. Based on these

facts, the state district judge correctly found probable cause to believe that

Abilene Gold Exchange had committed a Class B misdemeanor under §

1956.069 of the Texas Occupation Code by not properly reporting its purchases.

Accordingly, under Keenan, Smith is entitled to qualified immunity from

Appellants’ retaliation claim as it relates to obtaining the warrant.

Appellants argue, however, that even if the warrant was based on

probable cause, the decision to execute the warrant as a surprise tactical raid

with guns drawn was motivated by Cass’s protected speech. It is undisputed

that Smith originally intended to serve the warrant with a simple walk-in, and

Appellants argue that he changed his mind and decided to execute a raid only

after learning of Cass’s public opposition to the proposed ordinance, such that

“the only logical inference is that Smith’s decision to change the execution plan

was motivated by . . . his fellow officer’s views regarding Cass’ comments at the

recent City Council meeting.”

Appellants’ retaliation claim against Smith fails because it is premised

on the incorrect assumption that it was “Smith’s decision to change the

execution plan.” Instead, the officers present at the meeting—including Smith

and Bone—uniformly testified that the decision to conduct a raid rather than

calmly walk in with the warrant was made by Bone, who as head of the whole

Criminal Investigation Division was two levels above Smith in the chain of

13

Case: 14-11134 Document: 00513394264 Page: 14 Date Filed: 02/24/2016

No. 14-11134

command. Appellants offer no contrary evidence. This is fatal to their claim,

because even assuming arguendo that the decision was retaliatory, 5 Smith was

not the decision-maker, and he cannot be held liable for retaliation on the basis

of Bone’s decision to execute the warrant with more force than Smith had

initially intended. See Meadours v. Ermel, 483 F.3d 417, 421–22 (5th Cir. 2007)

(holding that even where police officers acted in unison, district court erred in

considering their actions together rather than addressing each officer’s actions

individually for qualified immunity analysis). Accordingly, Smith is entitled

to qualified immunity on Appellants’ First Amendment retaliation claim.

2.

Appellants argue that Smith’s use of deadly force against Cass was

excessive under the Fourth Amendment. The use of deadly force is subject to

the Fourth Amendment’s reasonableness requirement. Tennessee v. Garner,

471 U.S. 1, 7 (1985). “In the Fifth Circuit, to succeed on an excessive force

claim, the plaintiff bears the burden of showing: (1) an injury (2) which resulted

directly and only from the use of force that was clearly excessive to the need

and (3) the force used was objectively unreasonable.” Goodson v. City of Corpus

Christi, 202 F.3d 730, 740 (5th Cir. 2000) (citation and internal quotation

marks omitted). “The ‘[u]se of deadly force is not unreasonable when an officer

5 Smith argues that the change in plans came about after officers who were more

familiar with Abilene Gold Exchange than Smith brought up Camp’s “anti-police” attitude,

his criminal conviction, his unwillingness to cooperate with APD, and most importantly, the

presence of easily accessible firearms at the business. Appellants counter that the presence

of firearms was well-known before the morning of the raid, and Camp’s felony conviction was

for possession of marijuana and was thirty years old. Appellants also note that two of the

officers at the planning meeting the morning of the raid had been at the city council meeting

a week earlier when Cass had spoken against the proposed ordinance, and one of them had

been the ordinance’s primary proponent for over a year. Because Appellants’ claim goes to

the decision to change the manner of executing the warrant and Appellants have not sued

Bone, the decision-maker, we need not determine whether these facts support a claim of

retaliation.

14

Case: 14-11134 Document: 00513394264 Page: 15 Date Filed: 02/24/2016

No. 14-11134

would have reason to believe the suspect poses a threat of serious harm to the

officer or others.’” Carnaby v. City of Houston, 636 F.3d 183, 188 (5th Cir. 2011)

(quoting Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003)); accord

Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir. 2008). “The ‘reasonableness’

of a particular use of force must be judged from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of hindsight.” Graham

v. Connor, 490 U.S. 386, 396 (U.S. 1989). “[T]he 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.” Id. at 397. “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

396–97.

The video evidence in this case shows that as Smith crossed the doorway

to Cass’s office, he saw Cass approaching him and drawing his handgun, at

most a few yards from Smith. As Cass continued to raise his gun and pointed

it at Smith, Smith fired twice, causing Cass to drop his gun and slump to the

floor. The encounter lasted no more than a couple seconds; neither man had

time for reflection. As the district court correctly concluded, “[n]o reasonable

juror could conclude that at the time of the shooting Defendant Smith did not

reasonably perceive a threat to himself and the other officers.” Indeed, we have

held that officers were entitled to qualified immunity for their use of deadly

force when facing less immediate threats. See, e.g., Ramirez, 542 F.3d at 128–

31 (reversing denial of summary judgment on qualified immunity grounds

where officer shot plaintiff who held gun but did not raise, discharge, or point

it at officers).

15

Case: 14-11134 Document: 00513394264 Page: 16 Date Filed: 02/24/2016

No. 14-11134

Appellants argue that “[t]he district court erred in allowing the

Individual Defendants to create a dangerous, deadly situation and then avoid

liability for their acts due to the alleged ‘necessity’ of having to respond with

deadly force to the very situation they created.” We agree that by choosing to

conduct the raid with surprise and with guns drawn, APD created a dangerous

situation that led to Cass’s death. Nevertheless, our precedent forecloses

consideration of this context in evaluating Appellants’ excessive force claim:

The excessive force inquiry is confined to whether the officer was

in danger at the moment of the threat that resulted in the officer’s

shooting. Therefore, any of the officers’ actions leading up to the

shooting are not relevant for the purposes of an excessive force

inquiry in this Circuit.

Harris v. Serpas, 745 F.3d 767, 772 (5th Cir.) (internal citation, quotation

marks, and modifications omitted), cert. denied, 135 S. Ct. 137 (2014). Because

Smith reasonably believed himself to be in immediate danger when he shot

Cass, the shooting did not violate the Fourth Amendment and Smith is entitled

to qualified immunity on Appellants’ deadly force claim.

3.

In a distinct Fourth Amendment excessive force claim, Appellants argue

that APD’s execution of the warrant was unreasonable, creating a dangerous

situation with a high likelihood of serious bodily injury or death. Appellants

cite evidence that Abilene Gold Exchange had a history of cooperating with

police, none of the officers had ever been threatened by an employee of the

business, and the alleged crime upon which the warrant was predicated—

failure to properly report purchases of precious metals—was only a Class B

misdemeanor. Appellants also argue that a fact issue exists as to whether the

police announced themselves upon entry.

Viewing this evidence in the light most favorable to Appellants, a

reasonable juror could find APD’s use of force, coupled with the failure to

16

Case: 14-11134 Document: 00513394264 Page: 17 Date Filed: 02/24/2016

No. 14-11134

announce, to be objectively unreasonable in violation of the Fourth

Amendment. 6 Smith argues that the raid was justified by the presence of guns,

Camp’s felony conviction, a general sentiment that Camp and Cass had an

“anti-police attitude,” and the suspicion that Abilene Gold Exchange might be

involved in criminal activity more serious than the bookkeeping violations that

were the subject of the warrant. However, neither an unsubstantiated

suspicion that crime may be afoot nor a general consensus among officers that

business owners have an “anti-police attitude” justifies a surprise tactical raid

on a lawful business, particularly one with a history of cooperating with the

police. Nor does the mere presence of guns or a decades-old nonviolent

conviction automatically permit the use of force employed here by APD. See

Gould v. Davis, 165 F.3d 265, 272 (4th Cir. 1998) (rejecting officers’ argument

that mere presence of handguns in house justified forceful entry and denying

qualified immunity despite officers’ having obtained no-knock warrant).

Viewing the evidence in the light most favorable to Appellants, various APD

officers had entered Abilene Gold Exchange on numerous occasions as part of

criminal investigations without ever being threatened, giving APD no reason

to expect a violent response. On these facts, a reasonable juror could find that

Smith’s use of force violated Cass’s Fourth Amendment rights and

unnecessarily created a dangerous situation that made Cass’s death likely.

However, Appellants also have the burden to show that Smith violated

Cass’s clearly established rights. Appellants’ entire argument on this second

prong of the qualified immunity test is that “it is clearly established in the law

that citizens are protected against unjustified, excessive police force.” This

6 We are troubled by the unwillingness of the City of Abilene’s counsel to concede at

oral argument even that there was anything unwise about the raid, which suggests that

nothing will be done to prevent a repetition of this tragedy the next time APD needs to inspect

the records of a business whose owners are known to be armed.

17

Case: 14-11134 Document: 00513394264 Page: 18 Date Filed: 02/24/2016

No. 14-11134

general statement is insufficient to meet Appellants’ burden. See Ashcroft v.

al-Kidd, 131 S. Ct. 2074, 2084 (2011) (“We have repeatedly told courts . . . not

to define clearly established law at a high level of generality. The general

proposition, for example, that an unreasonable search or seizure violates the

Fourth Amendment is of little help in determining whether the violative

nature of particular conduct is clearly established.”) (citations omitted).

We note that the district court did not reach the “clearly established”

prong. Moreover, Smith entirely failed to argue that Cass’s right was not

clearly established, and on an ordinary affirmative defense, Smith would bear

the burden of proving the defense. Nevertheless, our precedent dictates that

“once a defendant invokes qualified immunity, the burden shifts to the plaintiff

to show that the defendant is not entitled to qualified immunity.” Kovacic v.

Villarreal, 628 F.3d 209, 214 (5th Cir. 2010). We conclude that on this record,

Appellants have not shown a violation of clearly established law so as to satisfy

this burden.

IV.

For the foregoing reasons, we AFFIRM the judgment of the district court.

18