Martha Romero v. City of Grapevine, Texas

Case: 17-10083 Document: 00514439585 Page: 1 Date Filed: 04/20/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

April 20, 2018

No. 17-10083

Lyle W. Cayce

Clerk

MARTHA ANJELICA ROMERO, Individually and as Representative of

Ruben Garcia-Villalpando, Deceased; EDUARDO GARCIA; KEILA GARCIA;

ABDIEL GARCIA, Minor; MARIA ESTELA VILLALPANDO; RUBEN

GARCIA DIAZ,

Plaintiffs - Appellants

v.

CITY OF GRAPEVINE, TEXAS; EDDIE SALAME, Chief of Police; ROBERT

CLARK, Officer,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

Before STEWART, Chief Judge, and CLEMENT, and SOUTHWICK, Circuit

Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Plaintiffs, surviving family members of Ruben Garcia-Villalpando

(“Villalpando”) and the representative of his estate (collectively “Romero”),

appeal the district court’s grant of a motion to dismiss her claims against the

City of Grapevine (“Grapevine”) and Eddie Salame, Chief of the Grapevine

Police Department (“GPD”). Romero further appeals the district court’s

subsequent grant of summary judgment in favor of Officer Robert Clark on

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No. 17-10083

Romero’s remaining excessive force claim under 42 U.S.C. § 1983 on the basis

of qualified immunity. For the reasons stated below, we AFFIRM.

I

On February 20, 2015, shortly after six PM, Officer Clark responded to

a burglar alarm at a commercial building. In the driveway adjacent to the back

of the building, Clark encountered an idling four-door sedan. The car began to

move forward and Clark followed for a short period of time before turning on

his emergency lights, signaling for the car to pull over. The sedan, driven by

Villalpando, did not stop, proceeded to speed up, and ran a stop sign. Clark

activated the full use of his emergency lights and car siren, and began to follow

the vehicle. He informed the police dispatcher that he was in pursuit and that

he believed the sedan’s occupant or occupants were responsible for the “[break]

in” at the commercial building. Villalpando continued to accelerate and

eventually pulled onto the onramp to State Highway 121, southbound.

Clark began a high speed chase of the sedan on the highway, which, at

the time, was heavily trafficked. Villalpando wove the sedan back and forth

across the four lanes of traffic and drove around traffic along the shoulders.

Clark asked dispatch to alert police units in the neighboring city of Euless.

After roughly one-and-a-half minutes of highway pursuit, Villalpando waved

one hand out of his driver’s side window, apparently signaling that he would

pull over. Villalpando proceeded to pull onto the narrow shoulder of a two-lane

exit ramp; Clark pulled over behind Villalpando’s sedan. Clark testified that

because he had followed Villalpando from the scene of a suspected burglary

and engaged in a high speed chase in which Villalpando was driving recklessly,

he treated the stop as a “felony traffic stop.” As Clark explained, “[i]n a felony

traffic stop, the Officer will take additional precautions when encountering the

stopped vehicle and the precautions can include drawing the Officer’s duty

weapon,” which he did before exiting his vehicle.

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Clark immediately instructed Villalpando: “Let me see your hands. Put

your hands out the window.” Villalpando complied and waved both hands out

of his driver’s side window. Clark proceeded to repeat himself several times,

instructing Villalpando to “get [his] hands out the window” and “keep [his]

hands out the window.” During this time frame, Clark testified that

Villalpando “repeatedly moved at least one of his hands back out of view inside

the vehicle.” The dash cam footage shows Villalpando moving his right hand

back inside his window at least once. Throughout this time period, several cars

passed.

Keeping his left hand raised and visible, Villalpando opened his driver’s

side door. He then raised both of his hands in the air. Clark immediately

ordered Villalpando to “stay right there . . . stay right there and keep your f-

cking hands out the window.” Villalpando appears to move both of his hands

back inside of the car. Clark again repeated his instructions, yelling “get your

hands out,” “keep your f-cking hands up,” and “dude, I’m telling you keep your

hands right there.” He also radioed the police dispatcher, telling them that

Villalpando was trying to get out of the vehicle and requesting that his backup

“step it up.” Villalpando again briefly moved his right arm back inside his

vehicle, after which Clark screamed “hey! Keep your f-cking hands where I can

see ‘em.” Again, several cars drove past the scene developing on the highway

shoulder.

Despite Clark’s instructions, Villalpando proceeded to open his door, exit

his car, and turn towards Clark. He initially kept his arms raised above his

head. Clark yelled several more warnings: “you better stand right there

motherf-cker,” “stay right there,” “keep your hands where I can see them and

stay right there.” Though Clark’s exact position at this point is not visible on

the film, a photograph taken by a passing motorist shows Clark standing no

more than a few feet in front of his driver’s side headlight with his gun drawn.

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Villalpando’s right foot was nearly touching the white line separating the

shoulder from the traffic lanes. Clark testified that he was “concerned

[Villalpando] had a weapon on his person.” Clark radioed dispatch, telling

them that he “got [Villalpando] outta the vehicle, his hands are up, he’s facing

me right now. Kept tryin’ to reach for somethin’.” Villalpando then lowered his

hands and placed them on his head. Clark told dispatch that he had

Villalpando at gunpoint and that Villalpando was currently obeying his

commands but repeated that he “kept trying to reach for somethin’” in his

vehicle.

Villalpando asked Clark “what’s your problem?” and “who you calling

motherf-cker?” Clark responded: “[you] kept reaching for stuff, you’re not

gonna listen to me.” Villalpando tapped his chest and said “kill me.” Clark

assured him “nah, I’m not gonna kill you,” and again radioed dispatch that

backup “might want to step it up. He’s saying kill me.” As several more cars

passed in view of the dash cam—including at least one in the lane closest to

the shoulder—Villalpando turned his back to Clark. He then dropped his

hands briefly to the back of his waistband and clasped his right wrist with his

left hand. Clark again screamed “hey. Get your f-cking hands up now.”

Villalpando turned and raised his hands in the air and told Clark “I’m gonna

walk to you.” Clark yelled “no, stand right there” and “hey. Get your hands up”

as Villalpando again dropped his hands briefly to his waist. Clark repeated

himself: “stand right there . . . get to the back of the car.” Villalpando again

said to Clark “nah. Kill me.”

Over the next several seconds, Villalpando began to walk slowly towards

Clark with his hands on his head. Four times, Clark told Villalpando to “stand

right there,” and he instructed him twice to “get to the back of the car” and to

“stop . . . stop right there.” Villalpando twice verbally refused to comply, stating

“no . . . no, I’m not.” Fumbling slightly with his hat, Villalpando turned his

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back to Clark, and continued moving towards him while spinning again to face

him. Clark continued to yell repeated instructions: “back up . . . dude, back up.

Back up, motherf-cker . . . Back up. Get to the back of the car.”

As cars continued to pass in the traffic lanes, Villalpando kept walking

slowly towards Clark with his hands on his head; Clark told Villalpando four

more times to “get to the back of the car.” Eventually, Villalpando got so close

to Clark’s vehicle on the driver’s side that he was no longer visible on the dash

cam. Seconds after Villalpando stepped off camera, Clark fired two gunshots.

Clark yelled at Villalpando several times to “get your hands where I can see

them” as he radioed to dispatch “shots fired.” Clark told dispatch “he was

coming at me . . . he kept coming at me. I gave him commands to stop. He kept

coming at me, he wouldn’t stop.” Villalpando died several hours later. He was

ultimately found to be unarmed.

Romero filed her original complaint in the district court on September

23, 2015, and defendants moved to dismiss. In her first amended complaint,

Romero brought claims under 42 U.S.C. § 1983 against the City, Salame, and

Clark, for failure to provide adequate training, excessive force, and deliberate

indifference to medical needs. Romero also alleged that defendants conspired

to deprive Villalpando of his Fourth Amendment rights in violation of 42 U.S.C.

§ 1985. Lastly, Romero brought claims under the Texas wrongful death and

survival statutes, Texas Civil Practice and Remedies Code §§ 71.001 and

71.021. The district court granted defendants’ motion to dismiss all claims

against the City and Salame, as well as the § 1985 claim against Clark and the

portion of Romero’s § 1983 claim alleging indifference to Villalpando’s medical

needs. 1 Only Romero’s excessive force claim under § 1983 against Clark was

1 In her brief on appeal, Romero does not address her conspiracy claim under

§ 1985, her claim under § 1983 for indifference to Villalpando’s medical needs, or her

state law claims. Accordingly, these claims are waived. See United States v. Lindell,

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allowed to proceed, and the district court allowed discovery limited to qualified

immunity issues. The district court ultimately granted Clark’s motion for

summary judgment, holding that he was entitled to qualified immunity.

Romero timely appeals.

II

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

same standard as the district court. Rogers v. Bromac Title Servs., L.L.C., 755

F.3d 347, 350 (5th Cir. 2014). “Summary judgment is proper ‘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.’” Id. (quoting Fed. R. Civ. P. 56(a)).

A genuine dispute of material fact exists “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We construe “all facts and

inferences in the light most favorable to the nonmoving party,” Dillon v.

Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (citation omitted); but, “[s]ummary

judgment may not be thwarted by conclusional allegations, unsupported

assertions, or presentation of only a scintilla of evidence.” McFaul v.

Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012). The plaintiffs bear the burden

of demonstrating that a defendant is not entitled to qualified immunity. Trent

v. Wade, 776 F.3d 368, 376 (5th Cir. 2015); Brown v. Callahan, 623 F.3d 249,

253 (5th Cir. 2010). “Further, although courts view evidence in the light most

favorable to the nonmoving party, they give greater weight, even at the

summary judgment stage, to the facts evident from video recordings taken at

the scene.” Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016) (citing Carnaby

v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011).

881 F.2d 1313, 1325 (5th Cir. 1989). The portion of Romero’s briefing addressing the

claims disposed of by defendants’ motion to dismiss discusses only her failure to train

and inadequate screening/hiring claims against the City and Salame.

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We review the district court’s grant of a motion to dismiss under Rule

12(b)(6) de novo. Quinn v. Guerrero, 863 F.3d 353, 363 (5th Cir. 2017). To

survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain

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

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal

quotations omitted). The court accepts all well-pleaded facts as true and must

consider those facts in the light most favorable to the plaintiff. Stokes v. Gann,

498 F.3d 483, 484 (5th Cir 2007).

III

We first address the district court’s grant of summary judgment in favor

of Clark on Romero’s § 1983 excessive force claim on the basis Clark was

entitled to qualified immunity.

Qualified immunity shields from liability “all but the plainly

incompetent or those who knowingly violate the law.” Malley v. Briggs, 475

U.S. 335, 341 (1986). Accordingly, “qualified immunity represents the norm,”

Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982), and courts should deny a

defendant immunity only in rare circumstances, see Brady v. Ford Bend Cty.,

58 F.3d 173, 173 (5th Cir. 1995). Again, once Clark asserted his qualified

immunity defense, the burden shifted to the plaintiffs to demonstrate that

Clark is not entitled to its protection. See Trent, 776 F.3d at 376; Brown, 623

F.3d at 253.

In determining whether an officer is entitled to qualified immunity,

courts engage in a two-step inquiry. Tolan v. Cotton, 134 S.Ct. 1861, 1865

(2014). First: “Taken in the light most favorable to the party asserting the

injury, do the facts show the officer’s conduct violated a constitutional right[.]”

Saucier v. Katz, 533 U.S. 194, 201 (2001). Second, we ask “whether the right

in question was ‘clearly established’ at the time of the violation.” Tolan, 134

S.Ct at 1866 (citing Hope v. Pelzer, 536 U.S. 730, 739 (2002)). Thus, the first

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question is whether Clark violated Villalpando’s Fourth Amendment right to

be free from excessive force. See Flores v. City of Palacios, 381 F.3d 391, 396

(5th Cir. 2004) (citing Graham v. Connor, 490 U.S. 386, 388 (1989)).

To state a claim for excessive force, Romero must demonstrate: “(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) (quoting

Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999)). Because Clark used

deadly force, “our ‘objective reasonableness’ balancing test is constrained.”

Flores, 381 F. 3d at 399 (quoting Tennessee v. Garner, 471 U.S. 1, 3 (1985)).

The use of deadly force violates the Fourth Amendment unless “the officer has

probable cause to believe that the suspect poses a threat of serious physical

harm, either to the officer or to others.” Garner, 471 U.S. at 11; see also Manis

v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) (“An officer’s use of deadly force

is not excessive, and thus no constitutional violation occurs, when the officer

reasonably believes that the suspect poses a threat of serious harm.”).

Recognizing 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,” Graham,

490 U.S. at 396, the Supreme Court has warned against “second-guessing a

police officer’s assessment, made on the scene, of the danger presented by a

particular situation,” Ryburn v. Huff, 565 U.S. 469, 477 (2012). Accordingly,

reasonableness “must be judged from the perspective of a reasonable officer on

the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S.

at 396. In evaluating whether an officer acted reasonably, courts may consider

“the severity of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officer or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.” Hogan v. Cunningham, 722 F.3d

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725, 734 (5th Cir. 2013) (quoting Graham, 490 U.S. at 396). The court “must

consider all of the circumstances leading up to [the moment deadly force is

used], because they inform the reasonableness of [the officer’s]

decisionmaking.” Mendez v. Poitevent, 823 F.3d 326, 333 (5th Cir. 2016).

Contrary to Romero’s assertions, the salient factual circumstances are

uncontroverted and supported by the dash cam footage. First, Clark

encountered Villalpando’s car while responding to the scene of a suspected

burglary—a felony offense. Villalpando did not stop when Clark activated his

emergency lights and used his siren. Instead, Villalpando fled at a high rate of

speed, ran a stop sign, and accelerated onto the highway. Once on the highway,

Villalpando recklessly wove back and forth across four lanes of traffic and

drove on the shoulder. Given his dangerous behavior, Clark reasonably

suspected that the occupant or occupants of Villalpando’s car “were involved in

burglarizing or attempting to burglarize” the commercial building. When

Villalpando finally stopped the vehicle on the shoulder of a highway exit, Clark

issued several commands for him to make his hands visible, which Villalpando

ignored at least once, reaching his right hand back into his driver’s side

window. 2 Despite several more clear commands to remain in his vehicle and

keep his hands out of the window, Villalpando opened his driver’s side door

and stepped out. Clearly worried for his own safety, Clark told dispatch on

more than one occasion to “step it up” and that Villalpando “kept trying to

reach for somethin’.” Villalpando twice told Clark: “kill me.” All of this unfolded

Romero disputes the number of times Villalpando reached his hands back

2

into the vehicle, but this disagreement between the parties is immaterial. The video

establishes that his right hand disappeared inside the vehicle at least once and

possibly as many as three or four times. Even if Villalpando’s hand suspiciously

reached back inside the vehicle only once, it was reasonable for Clark to fear he may

have been reaching for a weapon.

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as multiple cars were passing in the traffic lines immediately to the left of the

shoulder.

Over the next several minutes, Clark instructed Villalpando over and

over again to stay where he was and keep his hands up. Villalpando

deliberately ignored Clark’s commands, walking towards Clark on the narrow

shoulder, dropping his arms once to his waist, and fiddling with his hat. Clark

testified that he “was concerned [Villalpando] could have a weapon on his

person, and he may have been hiding a weapon on his person when he kept

reaching back inside the car.” As Villalpando walked towards Clark—

deliberately flouting his repeated commands—Clark “feared for [his] life

because all it would take from Villalpando was for him to push or shove [Clark]

and he would easily end up in the traffic lanes,” and Clark “knew cars were

driving past [him] on the exit ramp at speeds that were high enough to be

deadly.”

Given the tense and evolving factual circumstances, Clark “reasonably

believe[d] that [Villalpando] pose[d] a threat of serious harm.” Manis, 585 F.3d

at 843. Villalpando fled the scene of a suspected crime, drove recklessly and

endangered other drivers, refused to obey roughly thirty commands to keep his

hands visible and to stay in or near his vehicle, and approached Clark on a

narrow highway shoulder directly adjacent to speeding traffic. At the time

Clark shot Villalpando, he had walked so close to Clark’s vehicle that he was

no longer visible on the dash cam. Clark was forced to make a “split-second

judgment[]—in circumstances that [were] tense, uncertain, and rapidly

evolving—about the amount of force that [was] necessary.” Graham, 490 U.S.

at 396. That Villalpando was ultimately found to have been unarmed is

immaterial—Clark reasonably feared for his own safety. We will not “second-

guess[] a police officer’s assessment, made on the scene, of the danger

presented by a particular situation.” Ryburn, 565 U.S. at 477. In light of the

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information available to him at the time of the shooting, Clark’s decision to use

deadly force was reasonable, and he did not violate Villalpando’s Fourth

Amendment right. 3

Accordingly, the district court properly granted summary judgment to

Clark on the basis of qualified immunity.

IV

Because Romero has failed to demonstrate that Villalpando’s Fourth

Amendment rights were violated, her claims against the City and Salame for

failure to train and inadequate screening/hiring cannot survive. See Rios v.

City of Del Rio, 444 F.3d 417, 425 (5th Cir. 2006). In order to confer liability on

the City and Salame for deficient supervisory conduct, there must be “a

‘sufficient causal connection’ between [the City’s] conduct and the

constitutional violation.” Id. (quoting Evett v. DETNTFF, 330 F.3d 681, 689

(5th Cir. 2003). “[I]t is facially evident that this test cannot be met if there is

3 Even if Clark had used excessive force in violation of Villalpando’s Fourth

Amendment right, Clark would still be entitled to qualified immunity because the

right, defined at a fact specific level, was not clearly established at the time of the

violation. See Mullenix v. Luna, 136 S.Ct. 305, 308 (2015). “A clearly established right

is one that is ‘sufficiently clear that every reasonable officer would have understood

that what he is doing violates that right.’” Id. (quoting Reichle v. Howards, 566 U.S.

658, 664 (2012)). The Supreme Court has explained that courts must not “define

clearly established law at a high level of generality.” Id. (quoting Ashcroft v. al-Kidd,

563 U.S. 731, 742 (2011)). Instead, the question is “whether it was clearly established

that the Fourth Amendment prohibited the officer’s conduct in the ‘situation [he or

she] confronted.’” Id. at 309 (emphasis added) (quoting Brosseau v. Haugen, 543 U.S.

194, 199 (2004)). Romero does not cite to any controlling authority nor does she point

to a “robust consensus of persuasive authority” that suggests Clark’s actions were

obviously unconstitutional. Morgan v. Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011)

(en banc). While authority need not be exactly analogous to aid the court in

determining whether a right was clearly established, “this area is one in which the

result depends very much on the facts of each case,” and the authority must “squarely

govern[]” the circumstances. Brosseau, 543 U.S. at 201. There simply is no such

authority.

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no underlying constitutional violation.” Id. Accordingly, the claims were

properly dismissed.

V

For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment in favor of Clark, and AFFIRM the district court’s

dismissal of the claims against the City and Salame.

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