Hathaway v. Bazany

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 1, 2007

No. 06-50602 Charles R. Fulbruge III

Clerk

HARRY HATHAWAY, Individually and as Personal Representative of the

Estate of Jon-Eric Hathaway, Deceased; ERICA HATHAWAY, Individually

and as Personal Representative of the Estate of Jon-Eric Hathaway, Deceased

Plaintiffs - Appellants

v.

STEVEN BAZANY

Defendant - Appellee

Appeal from the United States District Court for the

Western District of Texas, San Antonio

Before GARWOOD, JOLLY, and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal raises questions of excessive force under the Fourth

Amendment involving the shooting death of a teenage driver by a policeman who

was struck by the car as it sped away after a traffic stop. Harry and Erica

Hathaway, parents of the teenager, appeal the summary judgment granting

police officer Steven Bazany qualified immunity. The Hathaways also appeal

the district court’s exclusion of expert witness evidence offered in reply to

Bazany’s summary judgment motion. We hold that the exclusion of evidence

was justified and that Bazany, facing a grave threat to personal safety and with

only seconds to make a decision, acted reasonably under the circumstances, and

No. 06-50602

thus meets the requirements for qualified immunity. We therefore AFFIRM the

judgment dismissing the case.

I.

Steven Bazany, an officer with the San Antonio Police Department, was

providing security for City Hall on the afternoon of April 1, 2003. The San

Antonio City Hall is bounded on the north by West Commerce Street and on the

east by Flores Street. West Commerce Street, the street on which Bazany was

stationed, is four lanes wide and open only to west-bound traffic.

While on Commerce Street—and west of the intersection with Flores

Street—Bazany was approached by Marc Vargas, an off-duty Bexar County

Sheriff’s Deputy. Deputy Vargas stopped his vehicle beside Bazany to report a

possible gang altercation occurring farther down Commerce Street, east of the

intersection of Commerce and Flores. Officer Vargas told Bazany that a silver

Mustang was swerving at a blue car while the occupants of the Mustang were

hanging out of a window making gang signs and yelling “Sureño,” the name of

a well-known gang.

Bazany saw the Mustang stopped at the Flores and Commerce traffic light

and facing west with its doors open. Two or three males, the occupants of the

silver Mustang, were standing over the blue car, yelling and flailing their arms.

In order to get a better view, Bazany walked to the third lane from the south

curb of Commerce Street, the lane in which the Mustang was stopped on the

other side of the intersection. Bazany then walked east, towards the

intersection, at which time the men standing over the blue car returned to the

Mustang. The Mustang traveled through the intersection, and Bazany motioned

for it to pull over to the south curb of Commerce Street and stop. The Mustang

did so. Bazany then entered the southernmost lane so that he could approach

the Mustang from the driver’s side.

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Bazany testified that when he reached a point approximately eight to ten

feet from the front right corner of the Mustang, the vehicle suddenly accelerated

towards him, turning first to the right, then back to the left, and then finally

back towards the center of the roadway as Bazany attempted to get out of the

way. When Bazany realized that he was not going to be able to get out of the

Mustang’s path, he decided to fire his weapon. The Mustang struck Bazany on

the left leg, causing him to spin down the side of the vehicle. Bazany did fire his

weapon, though he does not know whether he drew and fired before, during, or

immediately after he was struck by the Mustang. These events took place, on

his account, in the snap of a finger.

The bullet fired by Bazany hit the Mustang’s driver, Jon-Eric Hathaway,

at a point immediately below Hathaway’s lower left shoulder blade, traveled

laterally through Hathaway’s lungs and heart, and came to rest on the right side

of his chest, between his right nipple and armpit. Hathaway died from this

wound.

II.

Harry and Erica Hathaway brought a 42 U.S.C. § 1983 lawsuit against

Bazany and the city of San Antonio. The Hathaways claimed that Bazany used

excessive force in seizing their son and that the city had failed to train its police

officers in the proper use of deadly force. The city filed a motion to dismiss and

Bazany filed a motion for summary judgment, claiming an entitlement to

qualified immunity. The Hathaways failed to respond to either motion and both

were granted by the magistrate judge. The Hathaways subsequently asked for,

and were granted, additional time to respond to Bazany’s motion for summary

judgment.

The Hathaways’ response objected to the expert testimony upon which

Bazany’s motion relied. The response also included the expert testimony of

Harry Hathaway, to which Bazany objected. The magistrate judge ruled that

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the testimony of both expert witnesses should be excluded. On the basis of the

remaining evidence, which was primarily Bazany’s own testimony, the

magistrate judge held that the Hathaways had failed to show that Bazany had

violated Jon-Eric Hathaway’s constitutional rights, and granted the motion for

summary judgment again. The District Court adopted the magistrate judge’s

conclusions. The Hathaways now appeal the exclusion of the testimony of their

expert and the grant of summary judgment.

III.

The Hathaways raise two issues on appeal: the exclusion of Harry

Hathaway’s testimony as an expert witness and the grant of qualified immunity

to Bazany. With respect to the expert witness issue, the Hathaways argue that

Harry Hathaway has presented all the indicia of reliability required by Fed. R.

Evid. 702, including a detailed account of his methodology and his own expert

background as a police officer. Bazany, in turn, points to numerous paragraphs

in the affidavit that he claims have virtually no evidentiary support and range

from purely legal determinations to psychological speculation.

The second issue on appeal, the grant of summary judgment denying the

Hathaways’ Fourth Amendment claims, is closer. The Hathaways argue that

the evidence was sufficient to merit jury consideration. To support this

argument, the Hathaways cite alleged inconsistencies in Bazany’s deposition,

the autopsy report describing their son’s injury, and the excluded evidence of

their expert. This evidence, the Hathaways argue, supports their theory that

Bazany fired at Jon-Eric well after the threat to Bazany’s safety had dissipated.

Bazany, for his part, notes that no admitted evidence controverts his deposition

testimony, and that his deposition evinces a scenario characterized by a threat

to both his safety and the safety of others and an extremely limited period of

time in which to develop a response to that same threat. These characteristics,

on Bazany’s account, justify his use of deadly force.

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IV.

A.

There is, first of all, a dispute over the proper standard of review to apply

to the exclusion of Harry Hathaway’s testimony. The Hathaways argue that an

abuse of discretion standard is appropriate here, see Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 152 (1999), while Bazany, claiming that the

Hathaways failed to preserve their objection to the magistrate judge’s order,

urges the more restrictive plain error standard of review, see Douglass v. United

Services Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc). Both

standards give deference to the trial court, however, and both support excluding

Harry Hathaway’s testimony here.1

Assuming that the Hathaways properly preserved their objections, “[w]ith

respect to expert testimony offered in the summary judgment context, the trial

court has broad discretion to rule on the admissibility of the expert’s evidence

and its ruling must be sustained unless manifestly erroneous.” Boyd v. State

Farm Ins. Co., 158 F.3d 326, 331 (5th Cir. 1998). The district court excluded

Harry Hathaway’s testimony on the ground that he failed to provide an adequate

basis to support his conclusions.

Federal Rule of Evidence 702 permits opinion testimony from “a witness

qualified as an expert by knowledge, skill, experience, training, or education” if

such testimony will assist the trier of fact and “(1) the testimony is based upon

1

That Harry Hathaway is both the father of the decedent and a party to this suit does

not affect our analysis. Although Hathaway evidently has an interest in the outcome of this

suit, that potential bias is likely not alone grounds for disqualification. See Rodriguez v.

Pacificare of Texas, Inc., 980 F.2d 1014, 1019 (5th Cir. 1993) (“Nothing in the Federal Rules

of Evidence prohibits a party from serving as an expert witness.”). See, e.g., Gideon v. Johns-

Manville Sales Corp., 761 F.2d 1129, 1135–36 (5th Cir. 1985) (finding that the alleged bias of

a medical doctor with extensive credentials did not foreclose the doctor’s ability to qualify as

an expert witness). In any case, as the issue of bias was not pursued by the parties and there

is ample other reason to support excluding Hathaway’s expert testimony, we need not pass

upon the relevance of Hathaway’s interest in this suit.

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No. 06-50602

sufficient facts or data, (2) the testimony is the product of reliable principles and

methods, and (3) the witness has applied the principles and methods reliably to

the facts of the case.” In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993), the Supreme Court assigned to trial courts the responsibility of

determining whether expert testimony under Rule 702 is “not only relevant, but

reliable.” Id. at 589. In this gate-keeping role, trial courts make “a preliminary

assessment of whether the reasoning or methodology underlying the testimony

is scientifically valid and of whether that reasoning or methodology properly can

be applied to the facts in issue.” Id. at 592–93.

The Daubert opinion lists a number of factors that a trial court may use

in determining an expert’s reliability. Trial courts are to consider the extent to

which a given technique can be tested, whether the technique is subject to peer

review and publication, any known potential rate of error, the existence and

maintenance of standards governing operation of the technique, and, finally,

whether the method has been generally accepted in the relevant scientific

community. See id. at 593–94. These factors are not mandatory or exclusive;

the district court must decide whether the factors discussed in Daubert are

appropriate, use them as a starting point, and then ascertain if other factors

should be considered. See Black v. Food Lion, 171 F.3d 308, 311–12 (5th Cir.

1999). But the existence of sufficient facts and a reliable methodology is in all

instances mandatory. “[W]ithout more than credentials and a subjective

opinion, an expert’s testimony that ‘it is so’ is not admissible.” Viterbo v. Dow

Chem. Co., 826 F.2d 420, 424 (5th Cir. 1987).

B.

Harry Hathaway offers little more than personal assurances based on his

police experience that his conclusions are so, amply justifying the trial court’s

exclusion of his testimony both on the basis of insufficient factual support and

lack of reliable methodology. Hathaway’s qualifications as an expert arise from

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No. 06-50602

his career as a law enforcement officer and special expertise in firearms training.

But his primary argument, that Bazany must have been behind the car when he

fired his shot, is not based on any discernable training in or use of a scientific

methodology suited to the reconstruction of the location of a shooter based on the

trajectory of the bullet or location of a shell casing.2 Instead, Hathaway relies

on a host of unsupported conjectures that falls far short of a methodology.

Hathaway’s affidavit states that if Bazany had fired his weapon before or

as he was struck by the car, the bullet would have had to enter through the

windshield of the Mustang. Since it did not, Hathaway argues that Bazany must

have been behind the car and out of danger when he fired the shot. But this

conclusion is based on supposition. In essence, Hathaway argues that if Bazany

had been holding his gun a particular way, and if the Mustang was facing a

particular direction, and if the driver was sitting with a particular posture, then

Hathaway’s version of the events in question is supported. Even granting

Hathaway these speculative premises, there is no indication of how Hathaway

is specifically trained to make these determinations or if the calculations he used

in coming to his conclusions are the kind normally used and accepted in forensic

reconstruction.

But, what’s more, Hathaway does not, because he cannot, offer any specific

factual support for the reliability of his initial assumptions. Bazany’s deposition

is the primary source for direct evidence of how the shooting transpired, and

Bazany was uncertain regarding many details necessary to Hathaway’s analysis.

2

Hathaway, after stating his opinion that Bazany was well behind the Mustang at the

time of the shooting, justifies his methodological approach by simply stating that he is “trained

in performing this kind of analysis and ha[s] done it for over 20 years.” But nothing in

Hathaway’s background shows specialization related to the kind of detailed forensic

reconstruction he attempts in his affadavit. Cf. United States v. Hicks, 389 F.3d 514, 524–26

(5th Cir. 2004) (upholding admission of shell casing comparison where expert had received FBI

training, has a degree in chemistry, had done firearm testing of the particular kind in question

for over twenty years, and had relied on well-accepted methods, including authoritative

literature produced by the Association of Firearm and Tool Mark Examiners).

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No. 06-50602

The extrapolation that Hathaway does from the physical evidence of the autopsy

report and the placement of the shell casing to overcome this evidentiary lack

therefore depends on the furtive inclusion of a number of supposed facts not in

the record.3 Hathaway’s testimony therefore has neither the sufficient facts nor

the reliable methodology that would warrant its inclusion as evidence. As a

result, the trial court was well within its discretion in excluding Hathaway’s

affidavit.4

V.

A.

The Hathaways next claim that the district court erred by adopting the

magistrate judge’s decision to grant summary judgment. We review the grant

of summary judgment de novo. Cousin v. Small, 325 F.3d 627, 637 (5th Cir.

2003). Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact.” Fed. R. Civ. P. 56(c). A

genuine issue exists when “the evidence is such that a reasonable jury could

3

For instance, when analyzing what he takes to be the trajectory of the bullet fire by

Bazany, Hathaway claims that “[f]rom the top of [Jon-Eric] Hathaway’s shoulder which was

level with the windowsill of the vehicle to the entrance wound is approximately 7 inches.” But

there is no evidence in the record that shows that Jon-Eric Hathaway’s shoulder was level with

the Mustang’s windowsill at the time of the shooting, save an earlier statement by Hathaway

that he had observed Jon-Eric sitting in the Mustang on prior occasions.

4

The other arguments offered by Hathaway consist of completely unsubstantiated

factual assertions and legal or psychological opinion, and are therefore easily dismissed.

Representative statements include: “From my review of the witness’s statements it appears

that the driver of the Mustang was doing everything he could to avoid hitting Officer Bazany.

In fact it is not even clear that the driver of the Mustang saw Officer Bazany until the last

second.”; “After reviewing all of the statements, and because of my own experience with similar

circumstances, Officer Bazany took the shot after the vehicle hit his legs. You don’t have time

to draw a weapon; you are too busy trying to get out of the way. If a vehicle is coming at you

and it is 1 to 3 feet away you [sic] natural reflex is to put out both hands in an attempt to push

off the vehicle so it won’t hit you.”; “In my professional opinion Officer Bazany lost control of

his emotions and in a moment of extreme anger he shot the driver of the vehicle because

Hathaway had hit him with the Mustang and had scared the #%&*# out of the officer.”

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No. 06-50602

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). All reasonable inferences are drawn in favor of the

nonmoving party, but the nonmoving party “cannot defeat summary judgment

with conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of

evidence.’” Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 343 (5th

Cir. 2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)

(en banc)). In the context of a party asserting immunity in a summary judgment

motion, “[t]he moving party is not required to meet its summary judgment

burden for a claim of immunity. It is sufficient that the movant in good faith

pleads that it is entitled to absolute or qualified immunity. Once the [movant]

asserts this affirmative defense, the burden shifts to the plaintiff to rebut it.”

Cousin, 325 F.3d at 632 (emphasis and second alteration in original) (internal

citations and quotation marks omitted). Here, then, the evidentiary burden is

on the Hathaways to show that Bazany is not entitled to qualified immunity.

Qualified immunity is designed to protect government officials in limited

circumstances: “government officials performing discretionary functions

generally are shielded from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). This understanding of qualified immunity requires courts first to “assess

whether a statutory or constitutional right would have been violated on the facts

alleged.” Flores v. City of Palacios, 381 F.3d 391, 395 (5th Cir. 2004). Only after

having found a constitutional violation may a court then consider whether the

right in question was clearly established at the time of the violation such that

a reasonable person would have known of it. See id. (“[T]he Supreme Court has

made clear that we are obliged to go through the first step of the analysis even

if the second step shows that the law was not clearly established.”). Because we

conclude that Jon-Eric Hathaway’s constitutional rights were not violated in this

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case, we have no call to reach the second part of the qualified immunity

analysis.5

B.

In order to meet the first part of the qualified immunity test—the violation

of a constitutional right—the Hathaways argue that excessive force was used

against their son. In order to succeed on this claim the Hathaways must first

show that Jon-Eric Hathaway was seized within the meaning of the Fourth

Amendment. Id. at 396. The Hathaways must then show “(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.” Williams v.

Bramer, 180 F.3d 699 (5th Cir. 1999).

The use of deadly force for apprehension is a seizure subject to the

reasonableness requirement of the Fourth Amendment. Tennessee v. Garner,

471 U.S. 1, 7 (1985). Garner defined the circumstances under which the use of

deadly force to stop a fleeing suspect is constitutionally reasonable. Id. at 11.

Specifically,

[w]here the officer has probable cause to believe that the suspect

poses a threat of serious physical harm, either to the officer or to

others, it is not constitutionally unreasonable to prevent escape by

using deadly force. Thus, if the suspect threatens the officer with

a weapon or there is probable cause to believe that he committed a

crime involving the infliction or threatened infliction of serious

physical harm, deadly force may be used if necessary to prevent

escape, and if, where feasible, some warning has been given.

5

Even if we were able to conclude that these facts somehow established a constitutional

violation, United States v. Brosseau, 543 U.S. 194 (2004), makes it highly unlikely that the

Hathaways could prevail in establishing that Bazany infringed on a clearly established right

because of its emphasis on the “‘hazy border between excessive and acceptable force,’” id. at

201 (quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)), in the context of an officer shooting

a suspect in a fleeing car.

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No. 06-50602

Id. at 11–12. The reasonableness of an officer’s use of deadly force is therefore

determined by the existence of a credible, serious threat to the physical safety

of the officer or to those in the vicinity. And, critically, reasonableness in these

circumstances “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.” Graham v. Connor, 490 U.S. 386, 396–97 (1989).

Satisfaction of the first part of the qualified immunity test here turns on

whether Jon-Eric Hathaway posed a threat so serious as to justify a reasonable

officer in Bazany’s position to respond with deadly force. We conclude that the

Hathaways have not carried their burden of proof in showing that Bazany acted

unreasonably.

Cases addressing suspects fleeing in motor vehicles often focus on the

position of the officer relative to the vehicle. For example, in Waterman v.

Batton, 393 F.3d 471 (4th Cir. 2005), police fired their weapons at a car that

“lurched” toward them, although the officers were not directly in the path of the

vehicle and indeed would only have been hit if the car swerved. Id. at 477. The

car had been involved in a high speed chase, but was at rest prior to the

movement that the officers met with deadly force. Id. In finding the shooting

justified, the court focused on a number of factors, including the previous

hazardous activity of the car. Id. But central to its analysis were the limited

time the officers had to respond and “the closeness of the officers to the projected

path of [the] vehicle.” Id. at 479. These factors led the court to conclude that the

officers were justified in using deadly force. Id. at 481.

The court found, however, that the officers were not justified in firing their

weapons at the car after it had passed them and stopped. Id. This finding was

based on the court’s view that, after the vehicle had passed the officers, the

officers had access to new information regarding the perceived threat and should

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No. 06-50602

therefore have changed their response accordingly. Id. Notably, then, the later

shots by the officers were found unjustified because the officers could have

actually perceived the passing of the threat. The court’s determination was not

based on its own post-hoc judgment about whether the threat had in fact passed.

Proximity and temporal factors have also been relevant in our own circuit

in a case involving a police officer who fired his weapon at a truck that “gunned”

its engine and accelerated towards the officer. Herman v. City of Shannon, 296

F. Supp. 2d 709, 713 (N.D. Miss. 2003). The truck, pursued by police after

failing to comply with a traffic stop, ultimately came to rest as it was attempting

to turn around on a country road. Id. at 711. Two patrol cars surrounded it, and

the officers exited their patrol cars with their guns drawn. Id. The truck then

accelerated towards an officer standing within three feet of the truck. Id. The

officer was struck by the truck and fired two shots, injuring a passenger in the

truck. Id. The district court found the response to be reasonable, given the

officer’s limited time to react to an evident threat and our circuit’s general

acknowledgment that police officers are often required to make instantaneous

decisions that ought not be second-guessed merely because other options appear

plausible in hindsight. See id. at 713.

Bazany’s deposition, which, as we have said, is the only personal account

of the event, states that he saw the Mustang accelerate towards him, and that

the driver, Jon-Eric, had a “determined look.” And, most crucially, Bazany

states that the subsequent sequence of events, in which he realized he could not

get out of the way, decided to fire, unholstered his gun, was struck, and fired his

weapon, occurred in the snap of a finger, so quickly, in fact, that Bazany cannot

remember whether he fired his gun before, during, or after he was struck.

Nothing offered in evidence seriously disputes the time frame recounted

by Bazany. The autopsy report is consistent with any number of theories of the

relative locations of Bazany and Jon-Eric because the crucial information

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regarding Jon-Eric’s position in the car at the time of the shooting is apparently

unknown to all parties. And simply because the autopsy report does not

contradict an offered theory does not mean that the theory can also be

reasonably inferred from it, any more than it could be inferred from the bare fact

that the bullet that killed Jon-Eric Hathaway came from Bazany’s gun. The

autopsy report is at best “a scintilla of evidence” for the theory that Jon-Eric

Hathaway was well past Bazany when Bazany fired. No other specific facts in

the record support this theory.

Furthermore, Bazany’s failure to remember certain details does not

amount to a “well-supported suspicion of mendacity” undermining his credibility.

Thomas v. Great Atlantic and Pacific Tea Co., 233 F.3d 326, 331 (5th Cir. 2000).

The evidence before us—and the lack of specific facts to the contrary—requires

a conclusion that Bazany fired his weapon and was struck by the Mustang in

near contemporaneity.

The only remaining question, then, is whether an officer would be justified

in firing his weapon when threatened by a nearby accelerating vehicle, even if,

owing to the limited time available to respond, the shot was fired when or

immediately after the officer was hit.6 The evidence indicates that Bazany was

in close proximity to a car that he had asked to pull over that then accelerated

towards him, making perception of a serious threat reasonable. Given the

extremely brief period of time an officer has to react to a perceived threat like

this one, it is reasonable to do so with deadly force. See Graham, 490 U.S. at

6

The Hathaways also argue that Bazany placed himself in danger by walking in front

of the Mustang and that the reasoning of Estate of Starks v. Enyart, 5 F.3d 230 (7th Cir. 1993),

precludes granting qualified immunity when an officer creates the hazard in this way. But this

reads Enyart much too broadly. In that case, the central dispute involved whether the police

officers placed themselves in front of the moving vehicle so that they could prevent it from

escaping. Id. at 233. There is no indication here that Bazany was using his body as a

barricade.

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369–97. It is this brevity, and the coordinate rapid response that it demanded

from Bazany, that is the distinguishing factor in this case.

This is not an instance, as in Waterman, where an officer fired after the

perception of new information indicating the threat was past. Instead, the

entirety of the officer’s actions were predicated on responding to a serious threat

quickly and decisively. That his decision is now subject to

second-guessing—even legitimate second-guessing—does not make his actions

objectively unreasonable given the particular circumstances of the shooting. See

Stroik v. Ponseti, 35 F.3d 155, 158–59 (5th Cir. 1994) (“‘[W]e must never allow

the theoretical, sanitized world of our imagination to replace the dangerous and

complex world that policemen face every day. What constitutes “reasonable”

action may seem quite different to someone facing a possible assailant than to

someone analyzing the question at leisure’” (quoting Smith v. Freland, 954 F.2d

343, 347 (6th Cir. 1992))). Because Bazany’s actions were objectively reasonable,

we conclude that he did not violate Jon-Eric Hathaway’s Fourth Amendment

rights.

VI.

Because we find the expert testimony of Harry Hathaway properly

excluded and, on the evidence before us, no violation of Jon-Eric Hathaway’s

constitutional rights, the judgment of the district court is

AFFIRMED.

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