Petition for Writ of Certiorari — Karen Jimerson, et al., Petitioners v. Mike Lewis

Supreme Court briefOct 24, 2024

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No. _______

In The

Supreme Court of the United States

KAREN JIMERSON, ET AL.,

Petitioners,

MIKE LEWIS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

ERNEST REYNOLDS III

LAW OFFICES OF

ERNEST REYNOLDS

201 Main St., Suite 600

Fort Worth, TX 76102

(817) 332-8850

PATRICK JAICOMO

Counsel of Record

DYLAN MOORE

JARED MCCLAIN

ANYA BIDWELL

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Suite 900

Arlington, VA 22203

(703) 682-9320

pjaicomo@ij.org

Counsel for Petitioners

QUESTION PRESENTED

In Maryland v. Garrison, this Court addressed the

constitutional implications of police officers executing a

search warrant at the wrong location. The Court explained that the Fourth Amendment requires officers to

make “a reasonable effort to ascertain and identify the

place intended to be searched[.]” 480 U.S. 79, 88 (1987).

Addressing claims of qualified immunity, three circuits—

the Eighth, Ninth, and Eleventh—hold that Garrison

clearly established the law: Officers violate the Fourth

Amendment when they search a house without first

checking that it shares the address or conspicuous features of the place they intend to search. But the Fifth Circuit holds below that Garrison merely articulates a “general principle” insufficient to clearly establish the law. As

Judge Dennis notes in dissent, the Fifth Circuit’s

cramped reading of Garrison created a circuit split. Pet.

App. 21a.

The question presented is:

Whether Maryland v. Garrison clearly established

that officers violate the Fourth Amendment when they

search the wrong house without checking the address or

conspicuous features of the house to be searched.

PARTIES TO THE PROCEEDING

Petitioners are Plaintiffs Karen Jimerson and James

Parks, individually and as parents and next friends of minors J.J., J.J., and X.P. Respondent is Defendant Waxahachie, Texas Police Lieutenant Mike Lewis.

iii

RELATED PROCEEDINGS

U.S. District Court for the Northern District of Texas:

Jimerson v. Lewis,

No. 3:20-CV-2826 (Apr. 4, 2022)

Jimerson v. Lewis,

No. 3:20-CV-2826 (Mar. 31, 2022)

Jimerson v. Lewis,

No. 3:20-CV-2826 (Feb. 28, 2022) (R&R)

U.S. Court of Appeals for the Fifth Circuit:

Jimerson v. Lewis,

No. 22-10441 (June 26, 2024)

Jimerson v. Lewis,

No. 22-10441 (Feb. 15, 2024)

TABLE OF CONTENTS

Page

Petition for a Writ of Certiorari .........................................1

Opinions Below .....................................................................1

Jurisdiction ...........................................................................1

Constitutional and Statutory Provisions Involved ...........2

Introduction ..........................................................................2

Statement of the Case .........................................................4

Lewis ordered a SWAT team to raid an

innocent family’s house. ..........................................4

II. The district court denied Lewis qualified

immunity, but a divided Fifth Circuit panel

reversed, creating a circuit split. ............................7

Reasons for Granting the Petition .....................................9

The circuits are split over whether

Maryland v. Garrison clearly established

the law. ....................................................................12

A. Garrison clearly establishes the law in

three circuits. ....................................................13

B. Garrison does not clearly establish the

law in the Fifth Circuit. ...................................16

II. This case is a good vehicle because the facts

are undisputed, the issue is important, and

the application is simple. .......................................22

Conclusion ...........................................................................24

TABLE OF APPENDICES

APPENDIX A:

Revised Opinion of the United States Court of

Appeals for the Fifth Circuit, February 15,

2024 ................................................................................1a

APPENDIX B:

Supplemental Order of the United States District Court for the Northern District of Texas,

April 4, 2022 ................................................................22a

APPENDIX C:

Memorandum Opinion and Order of the United States District Court for the Northern District of Texas, March 31, 2022...................................25a

APPENDIX D:

Findings, Conclusions, and Recommendation

of the United States Magistrate Judge, United

States District Court for the Northern District

of Texas, February 28, 2022 ......................................58a

APPENDIX E:

Order on Petition for Rehearing en Banc from

the United States Court of Appeals for the

Fifth Circuit, June 26, 2024.......................................93a

APPENDIX F:

Judgment of the United States Court of Appeals for the Fifth Circuit, February 1, 2024 ..........96a

TABLE OF AUTHORITIES

Page

CASES

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) .........................................................9

Dawkins v. Graham,

50 F.3d 532 (8th Cir. 1995) ................................ 3, 14–15

Florida v. Jardines,

569 U.S. 1 (2013) ...........................................................20

Gomez v. Feissner,

474 Fed. Appx. 53 (3d Cir. 2012) ................................16

Harlow v. Fitzgerald,

457 U.S. 800 (1982) .......................................................18

Hartsfield v. Lemacks,

50 F.3d 950 (11th Cir. 1995) .............. 3, 8–10, 13–14, 18

Hope v. Pelzer,

536 U.S. 730 (2002) ........................................... 11, 20–21

Jimerson v. Lewis,

94 F.4th 423 (5th Cir. 2024)

.................................... 1, 3–5, 7–11, 13–14, 16–19, 21–24

Jimerson v. Lewis,

2022 WL 1400752 (N.D. Tex. Apr. 4, 2022) .................1

Jimerson v. Lewis,

2022 WL 986015 (N.D. Tex. Mar. 31, 2022)

.......................................................... 1, 5, 8, 10–11, 17–19

Jimerson v. Lewis,

2022 WL 1518940 (N.D. Tex. Feb. 28, 2022) ...............1

vii

Malley v. Briggs,

475 U.S. 335 (1986) .......................................................20

Maryland v. Garrison,

480 U.S. 79 (1987) ............................................. 3–4, 8–24

Mazuz v. Maryland,

442 F.3d 217 (4th Cir. 2006) ................................. 16–17

McCoy v. Alamu,

141 S. Ct. 1364 (2021) ...................................................22

Navarro v. Barthel,

952 F.2d 331 (9th Cir. 1991) .................................... 3, 15

Rivas-Villegas v. Cortesluna,

595 U.S. 1 (2021) ...........................................................24

Rogers v. Hooper,

271 Fed. Appx. 431 (5th Cir. 2008) ...........................8–9

Sampson v. Regional Controlled

Substance Apprehension Program,

48 F.3d 531 (5th Cir. 1995) .................................... 15–16

Shoop v. Cassano,

142 S. Ct. 2051 (2022) ...................................................20

Silverman v. United States,

365 U.S. 505 (1961) .......................................................21

Taylor v. Riojas,

592 U.S. 7 (2020) ...........................................................22

Velasco v. Fairall,

134 F.3d 365 (4th Cir. 1998) ........................................16

CONSTITUTIONAL AND STATUTORY PROVISIONS

28 U.S.C. 1254(1) ..................................................................1

viii

42 U.S.C. 1983......................................................... 2, 4, 7, 24

U.S. Const. amend. IV ............................................. 2, 11, 21

RULES

5th Cir. R. 47.5.3.................................................................15

PETITION FOR A WRIT OF CERTIORARI

Karen Jimerson, James Parks, and their minor children J.J., J.J., and X.P., petition for a writ of certiorari to

review the judgment of the Fifth Circuit in this case.

OPINIONS BELOW

The revised opinion of the circuit court, Pet. App. 1a,

is reported as Jimerson v. Lewis, 94 F.4th 423 (5th Cir.

2024). The district court’s supplemental order, Pet. App.

22a, is unreported but is available electronically as Jimerson v. Lewis, 2022 WL 1400752 (N.D. Tex. Apr. 4, 2022).

The opinion of the district court, adopting in part the

magistrate judge’s recommendation but denying qualified immunity to Lieutenant Lewis, Pet. App. 25a, is unreported but available electronically as Jimerson v.

Lewis, 2022 WL 986015 (N.D. Tex. Mar. 31, 2022). The

magistrate judge’s findings, conclusions, and recommendation, Pet. App. 58a, recommending the district court

dismiss this case in its entirety, is also unreported but

available electronically as Jimerson v. Lewis, 2022 WL

1518940 (N.D. Tex. Feb. 28, 2022).

J URISDICTION

The Fifth Circuit entered its revised decision below on

February 15, 2024, and denied a petition for rehearing en

banc on June 26. Justice Alito granted a 30-day extension

of the period for filing this petition, making it due on October 24. Petitioners timely file this petition and invoke

this Court’s jurisdiction under 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]”

U.S. Const. amend. IV.

To provide a remedy for violations of this right and

others, Congress enacted the Civil Rights Act of 1871. As

codified and amended, it provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other

proper proceeding for redress[.]

42 U.S.C. 1983.

INTRODUCTION

Although neither its address nor its conspicuous features matched the house described in his warrant, Respondent Lieutenant Lewis ordered his SWAT team to

execute a no-knock raid on an innocent family’s house.

Lewis did not contest that his actions violated the Fourth

Amendment, but a divided panel of the Fifth Circuit

granted him qualified immunity. According to the panel,

it was not clearly established that Lewis had to, for

instance, confirm that the address on the house matched

his warrant before commanding his SWAT team to kick

in the door. As Judge Dennis noted in dissent, however,

the panel created a circuit split over whether this Court’s

decision in Maryland v. Garrison clearly established the

law for wrong-house searches. Pet. App. 18a–21a (citing,

e.g., Hartsfield v. Lemacks, 50 F.3d 950 (11th Cir. 1995)).

In Garrison, the Court held that officers executing a

search warrant must make “a reasonable effort to ascertain and identify the place intended to be searched[.]” 480

U.S. 79, 88 (1987). When officers fail to do so—or when

they have reason to know they are searching the wrong

location—their actions violate the Fourth Amendment.

Id. at 85, 88 & n.13.

Addressing claims of qualified immunity, three circuits have held that Garrison clearly established that a

police officer violates the Fourth Amendment when he

searches the wrong house without checking the address

or conspicuous features of the house to be searched. 1 The

Fifth Circuit, however, holds that Garrison merely announced a “general principle” insufficient to provide “fair

warning” to officers in determining “the necessary reasonable efforts to identify the correct residence” before

searching. Pet. App. 9a–11a, 14a.

This case provides an excellent opportunity for the

Court to resolve this split. The facts are undisputed. Pet.

App. 3a, 15a. It is also “undisputed that Lewis violated the

Jimersons’ Fourth Amendment rights in executing a

SWAT-style entry into their home[.]” Pet. App. 17a

Dawkins v. Graham, 50 F.3d 532, 534 (8th Cir. 1995); Navarro v.

Barthel, 952 F.2d 331, 333 (9th Cir. 1991); Hartsfield v. Lemacks, 50

F.3d 950, 955–956 (11th Cir. 1995).

(Dennis, J., dissenting); see also id. at 9a. And the sole issue standing between Petitioners and the remedy Congress provided them through Section 1983 is whether

Maryland v. Garrison clearly established the law. Alternatively, this case is a good candidate for summary reversal because bedrock Fourth Amendment principles apply

to Lewis’s conduct with obvious clarity: Every reasonable

officer would know, if there’s an address to check, he must

check it before launching a dangerous and destructive

raid.

STATEMENT OF THE CASE

Lewis ordered a SWAT team to raid an innocent

family’s house.

One night in March 2019, Waxahachie, Texas Police

Lieutenant Mike Lewis gathered a SWAT team to execute a no-knock warrant on a suspected methamphetamine stash house located at 573 8th Street, Lancaster,

Texas. The team assembled on the porch of 583 8th

Street, however, before Lewis realized they were about

to execute the warrant at the wrong address. The house

to the officers’ right was the target house. But rather than

double check, Lewis hastily commanded his officers to

raid the home to their left, 593 8th Street. Inside was an

innocent family—Petitioners Karen Jimerson, James

Parks, and their three minor children (collectively, the

Jimersons)—peacefully preparing for bed. Pet. App. 3a–

6a.

Lewis should have known that the Jimersons’ house

was not his target. The target house was under surveillance, and Lewis was receiving real-time intelligence. He

also had a copy of the search warrant, which listed the

target house number as 573. This address did not match

the 593 clearly displayed on the Jimersons’ house. Pet.

App. 3a–6a. Although he later claimed that he “believed”

the Jimersons’ address matched the warrant, id. at 5a; id.

at 16a (Dennis, J., dissenting), Lewis conceded he “did not

even check the number” before ordering the SWAT team

to execute, id. at 16a (Dennis, J., dissenting).

Aside from the mismatched addresses, several notable features should have alerted Lewis that his team

was—for the second time—at the wrong house. Lewis

knew, for instance, the target house had its address

painted on the curb and affixed to a pole supporting its

porch; the Jimersons’ house had its address affixed to the

house itself (right next to the front door) and had no

porch. Lewis knew the target house was the thirteenth on

the block; the Jimersons’ house was the fifteenth. And

Lewis knew the target house had a perimeter fence; the

Jimersons’ house had no fence. Instead, it had a substantial wheelchair ramp with waist-high railings that led to

its front door. Pet. App. 15a–17a, 20a–21a (Dennis, J., dissenting); id. at 52a–53a.

Although they do not capture all the relevant differences, even the grainy black-and-white photographs police took in the immediate aftermath of the raid show that

the houses were easily distinguishable. Compare:

The Target House: 573 8th Street

The Jimersons’ House: 593 8th Street

Ignoring these and other conspicuous features that

would have provided any reasonable officer notice that he

was about to raid the wrong house, Lewis inexplicably

commanded officers to “break and rake” the Jimersons’

house. Pet. App. 16a (Dennis, J., dissenting). On Lewis’s

orders, the SWAT team moved from one wrong house to

another, clambered up a wheelchair ramp that was not

supposed to be there, broke down Petitioners’ front door,

shattered their windows, and detonated a flashbang grenade. Glass from the windows rained on the children as

they slept. The officers then held the Jimersons—a halfnaked Karen, emerging from a bath; James, who had

been fast asleep; and their minor children—at gunpoint

until another officer realized Lewis’s mistake. Id. at 5a–

6a, 63a–64a.

In the wake of the botched raid, an internal investigation concluded that Lewis “completely overlooked” his

department’s “reasonable and normal protocol.” Pet.

App. 6a. The Waxahachie Police Chief stated that mistakes like Lewis’s should never happen and suspended

him without pay (for two days). Id. at 6a.

II.

The district court denied Lewis qualified immunity, but a divided Fifth Circuit panel reversed, creating a circuit split.

The Jimersons sued Lieutenant Lewis and the other

officers who raided their home under 42 U.S.C. 1983 for

violations of the Fourth Amendment. Pet. App. 6a–7a.

The officers moved for summary judgment based on qualified immunity, and the magistrate judge recommended

that the district court grant their motion. Id. at 7a. The

district court adopted the magistrate judge’s recommendation in part, granting qualified immunity to all officers

involved in the wrong-house raid, except Lewis. Id. at 7a,

46a–54a. Relying on this Court’s decision in Maryland v.

Garrison, 480 U.S. 79, 88 (1987), the district court concluded that “this case presents a situation for the jury to

decide whether [Lewis] was plainly incompetent in the execution of the search warrant that resulted in an unconstitutional search of [the Jimersons’] residence.” Pet.

App. 53a–54a; see also id. at 49a–50a (citing as “[i]nstructive to the court’s analysis” Rogers v. Hooper, 271 Fed.

Appx. 431 (5th Cir. 2008) (table), and Hartsfield v.

Lemacks, 50 F.3d 950, 955 (11th Cir. 1995)).

Lewis filed an interlocutory appeal, and a panel of the

Fifth Circuit reversed in a 2-1 published decision. Jimerson v. Lewis, 94 F.4th 423 (5th Cir. 2024). The panel noted

that there were no disputes of material fact and that

Lewis did “not challenge the district court’s analysis of

whether [he] violated the plaintiffs’ rights under federal

law.” Pet. App. 3a, 9a. The only question was whether

Lewis was entitled to qualified immunity because the law

he admittedly violated was not clearly established. Id. at

10a. The panel held that he was. Id. at 14a.

Characterizing this Court’s holding in Garrison as a

statement of “general principle” rather than a clear establishment of the law, the majority rejected the district

court’s reliance on Garrison and persuasive authority interpreting it. Id. at 11a. And “[e]ven if these two nonprecedential opinions [Rogers and Hartsfield] were indicative

of clearly established law,” the panel concluded, they did

not provide Lewis “fair warning” that his actions violated

the Constitution because he did more than “nothing” to

identify the correct house. Id. at 13a.

Thus, although Lewis concedes that he violated the

Jimersons’ Fourth Amendment rights, the panel held he

is nevertheless immune from suit because there is no authority “demonstrating that Lewis’s conduct violated

clearly established law.” Pet. App. 14a.

Judge Dennis dissented. While he agreed that there

were “no factual disputes as to Lewis’ actions in leading

the SWAT team to the wrong residence,” he disagreed

“that Lewis is entitled to qualified immunity under clearly

established law.” Pet. App. 15a. “In light of the efforts

identified as adequate by the Supreme Court in Garrison

and elaborated on by circuit courts,” Judge Dennis concluded that “Lewis had ‘fair notice’ of the minimum efforts required to comply with the Fourth Amendment

when identifying a house for the purposes of executing a

search warrant.” Id. at 21 (citations omitted). And “[a]s

announced in Garrison and elucidated in Rogers and

Hartsfield, it is ‘beyond debate’ that Lewis’ efforts were

constitutionally deficient.” Ibid. (quoting Ashcroft v. alKidd, 563 U.S. 731, 741 (2011)). In short, Judge Dennis

explained, Lewis “could have easily avoided the mistaken

entry by ‘simply checking’ the house number or using

other information at his disposal to identify the correct

residence.” Id. at 20a (quoting Hartsfield, 50 F.3d at 955).

The Fifth Circuit denied rehearing, and this petition

follows.

REASONS FOR GRANTING THE PETITION

Nearly four decades ago, the Court explained that officers executing a search warrant must make “a reasonable effort to ascertain and identify the place intended to

be searched[.]” Garrison, 480 U.S. at 88. Since then, three

circuits have held that Garrison clearly established that

officers violate the Fourth Amendment by executing a

search warrant at the wrong house without checking the

address or conspicuous features of the house to be

searched.

Lieutenant Lewis’s actions fit this description of a

Fourth Amendment violation to a tee. He “completely

overlooked” his department’s “reasonable and normal

protocol” by ordering a SWAT team to raid a house full of

innocent people. Pet. App. 6a. Lewis could have easily

avoided the mistaken entry by, for example, reading the

house number posted right beside the Jimersons’ front

door, 2 observing a giant wheelchair ramp, 3 or taking a

moment to reassess the situation given that his “SWAT

team had [already] assembled at” another wrong house. 4

Despite these (and other) warning signs, Lewis ordered

his team to raid the Jimersons’ house without verifying

that its address or conspicuous features matched his target. Id. at 5a–6a.

Although Lewis did not challenge the district court’s

conclusion that he violated the Fourth Amendment, Pet.

App. 9a, 17a, 54a, a divided Fifth Circuit panel granted

Lewis qualified immunity. It held that the law was not

clearly established because Garrison merely articulated a

“general principle.” Id. at 11a, 14a. Judge Dennis dissented. According to him—and published decisions from

three other circuit courts—Garrison clearly established

that qualified immunity does not shield an officer who has

Pet. App. 19a (Dennis, J., dissenting) (citing Hartsfield, 50 F.3d at

955).

Pet. App. 48a–49a (district court noting that the ramp “should have

been readily apparent to any reasonably competent officer”).

Pet. App. 5a.

reason to know he is executing a search warrant at the

wrong house and does so anyway.

The Court should grant this petition and settle the

split over whether Garrison clearly established this crucially important aspect of Fourth Amendment law. Alternatively, the Court could summarily reverse the decision

below because the constitutional principles apply with obvious clarity to Lewis’s conduct. See Hope v. Pelzer, 536

U.S. 730, 741 (2002). For either option, this case is a good

vehicle.

On the facts, it is undisputed that Lewis and his

SWAT team conducted a dangerous and preventable noknock raid on the wrong house. Pet. App. 3a (observing

that Lewis’s efforts to “identify the correct residence”

were “deficient”). And it is undisputed that Lewis violated

the Jimersons’ Fourth Amendment rights in the process.

Id. at 9a (noting that “Lewis does not challenge the district court’s analysis of whether defendants violated the

[Jimersons’] rights under federal law”), 17a (Dennis, J.,

dissenting) (“[I]t is undisputed that Lewis violated the

Jimersons’ Fourth Amendment rights[.]”), 54a (district

court holding that Lewis’s actions “resulted in an unconstitutional search”).

On the law, the constitutional question is important—

going to the very heart of whether the Fourth Amendment truly guarantees the right of the people to be secure

in their houses against unreasonable searches. U.S.

Const. amend. IV. And its application is simple. The dispositive issue—for both the circuit split and the outcome

of this case—is whether Maryland v. Garrison clearly established the law.

The circuits are split over whether Maryland v.

Garrison clearly established the law.

In Maryland v. Garrison, Baltimore police officers executed a search warrant at the wrong apartment because

they mistakenly believed that a building’s third floor contained one unit, rather than two. 480 U.S. at 80. Before

executing the warrant, the officers attempted to identify

their target, but none of their efforts alerted them to the

fact that the third floor contained two apartments. 5 Id. at

88. Even the suspect—who met the police outside the

complex and gave them the key to the third floor—did not

mention that he had a neighbor. Id. at 81 & n.2. So when

the officers executed the warrant, they “reasonably believed [the suspect] was the only tenant on that floor.” Id.

at 85 n.10.

Because “[t]he objective facts available to the officers

at the time suggested no distinction between” the apartments, Garrison held that the search complied with the

Fourth Amendment. Id. at 88 (Stevens, J., joined by

Rehnquist, C.J., and White, Powell, O’Connor, and Scalia,

JJ.). If the officers “had known, or should have known,

that the third floor contained two apartments[,]” however, Garrison explained that the search of the wrong

apartment would have been unconstitutional. Id. at 86–87.

The inquiry boils down to diligence: Before executing a

warrant, officers must make “a reasonable effort to

For instance, the officers (1) reviewed the warrant, which authorized a search of the entire third floor; (2) traveled to the complex before executing the warrant to confirm that it matched the confidential

informant’s (and the warrant’s) description; (3) confirmed with the

utility company that only one customer resided on the third floor; and

(4) verified through police records that the suspect lived at the address. Garrison, 480 U.S. at 80–82, 85 n.10.

ascertain and identify the place intended to be searched

within the meaning of the Fourth Amendment.” Id. at 88.

In Garrison, they did, and none of their efforts revealed

they were about to search the wrong place—even though

they were. Ibid.

Three circuits have held that Garrison clearly established the law for wrong-house searches: Officers must

make “a reasonable effort” to ensure that they don’t

search the wrong house by confirming the address or conspicuous features of the house to be searched. If officers

fail in this basic constitutional requirement, they cannot

claim qualified immunity. But by characterizing Garrison

as a mere statement of “general principle,” rather than a

clear establishment of the law, Pet. App. 11a, the decision

below splits the Fifth Circuit from its sisters over

whether and how Garrison applies to wrong-house raids.

A. Garrison clearly establishes the law in three

circuits.

Over a span of more than two decades, three circuits

have held that Garrison provides fair warning of the law

governing wrong-house raids. In the Eighth, Ninth, and

Eleventh Circuits, Garrison clearly established in 1987

that officers violate the Fourth Amendment when they

search a house without first checking that it shares the

address or conspicuous features of the place they intend

to search. But the Fifth Circuit has now broken from this

consensus.

As Judge Dennis observed in his dissent below, for example, the panel’s decision splits the Fifth Circuit from

the Eleventh Circuit’s opinion in Hartsfield v. Lemacks,

50 F.3d 950 (11th Cir. 1995). Pet. App. 20a (“In light of

Hartsfield’s guidance interpreting the clearly established

law in Garrison, the Jimersons rebutted Lewis’ assertion

of qualified immunity.”). In Hartsfield, an officer “had the

warrant in his possession” but “did not check to make

sure that he was leading the other officers to the correct

address.” Id. at 955. At the officer’s command, police

raided 5128 Middlebrooks Drive, rather than 5108. Id. at

951–952. Just as here, the correct house was at least two

doors down, the house numbers were clearly marked, and

only one house had a fence around it. Ibid.

The Eleventh Circuit denied qualified immunity. It

explained that Garrison clearly established that “a warrantless search of a residence violates the Fourth Amendment, unless the officers engage in reasonable efforts to

avoid error.” Id. at 955. The officer’s failure to recognize

differences between the houses—paired with his failure

to verify the address—violated this clearly established

law. 6 Ibid.

In Dawkins v. Graham, the Eighth Circuit held it was

clearly established “under Garrison, [that] the execution

of a valid warrant on the wrong premises violates

the Fourth Amendment if the officers should know the

The panel attempted to reconcile its decision below with Hartsfield

by claiming that Lewis “was far more careful” than the officer there.

Pet. App. 14a. But in both cases, the officers “could have easily

avoided the mistaken entry by ‘simply checking’ the house number

or using other information at [their] disposal to identify the correct

residence.” Id. at 19a–20a (Dennis, J., dissenting) (quoting Hartsfield, 50 F.3d at 955). Despite Lewis’s preparation before he left the

office that day, he failed to employ any of the information he learned

about the target residence when it came time to identify the place to

be searched. As Judge Dennis pointed out, doing so would have been

easy. Ibid. And, if anything, Lewis’s repeated confirmation that he

was supposed to search 573 8th Street makes his search of 593 8th

Street more unreasonable—not less.

premises searched are not the premises described in the

warrant[.]” 50 F.3d 532, 534 (8th Cir. 1995). Under this

standard, the court denied qualified immunity to the officers who entered 611 Adam Street instead of 611 Byrd

Street (one block away) because the streets were clearly

marked and the houses were different colors. Id. at 533–

534.

The Ninth Circuit similarly held that Garrison clearly

established that an officer must “act[] reasonably, based

on information about the * * * premises that he knew or

should have known, to assure that the wrong place was

not searched.” Navarro v. Barthel, 952 F.2d 331, 333 (9th

Cir. 1991) (per curiam). In Navarro, a warrant authorized

the search of “the second house on the right,” but an officer directed others to search the third house, counting

the one on the corner. Ibid. When the homeowners sued,

the court held that qualified immunity did not shield the

officer. Ibid.

All three of these cases stand for a common proposition: Garrison clearly established that an officer violates

the Fourth Amendment when he searches a house without checking the address or conspicuous features of the

house to be searched.

Until now, the Fifth Circuit also shared this understanding of Garrison. In Sampson v. Regional Controlled

Substance Apprehension Program, 48 F.3d 531 (5th Cir.

1995) (precedential summary calendar opinion), 7 the

court denied qualified immunity to officers who executed

a warrant at the wrong apartment, despite discovering

two apartments in the building once they arrived. Id. at

In the Fifth Circuit, “[u]npublished opinions issued before January

1, 1996, are precedent.” 5th Cir. R. 47.5.3.

*3. Because the officers were “on notice of the risk that

they might search the wrong residence[,]” their failure to

“mak[e] any attempt to more definitively ascertain which

was the correct apartment” before they “busted in[]” violated clearly established law. More pointedly, Sampson

held that the officers violated “the rule of Garrison.” Ibid.

B. Garrison does not clearly establish the law in

the Fifth Circuit.

Through its decision below, the Fifth Circuit splits

from its sisters and now disclaims its prior understanding

that there is a “rule of Garrison” at all. 8 Rather than

clearly establishing the law, the Fifth Circuit holds, Garrison merely announced a “general principle” insufficient

to provide “fair warning” for qualified immunity. 9 Pet.

Although this petition only relies on precedential circuit decisions in

describing the split, unpublished decisions stand on both sides as

well. Compare, e.g., Gomez v. Feissner, 474 Fed. Appx. 53, 55–56 (3d

Cir. 2012) (holding that Garrison staked out “a clearly established

right to be free from a search of one’s home by officers who know or

should know that such a search is unauthorized” and denying qualified immunity to an officer who searched 9 West Monroe Avenue

while executing a warrant for 11 West Monroe Avenue), with, e.g.,

Velasco v. Fairall, 134 F.3d 365, *1–2 (4th Cir. 1998) (table) (suggesting without clearly holding that Garrison provides only the general

principle that the Fourth Amendment safeguards “a right to privacy

in [one’s] own home and to be secure in it” and granting immunity to

an officer who executed a warrant for 14827 Belle Ami Drive at 14823

Belle Ami Drive because he “misunderst[ood] [his team leader’s] response to his verification request as confirmation that 14823 was the

correct residence”).

Cf. Mazuz v. Maryland, 442 F.3d 217, 227–229 (4th Cir. 2006) (quoting Garrison, 480 U.S. at 87, for the proposition that courts “need to

allow some latitude for honest mistakes that are made by officers in

the dangerous and difficult process of making arrests and executing

search warrants” and finding no Fourth Amendment violation when

App. 11a, 14a (citations omitted). So according to the decision below, there is “no[] cited authority demonstrating

that Lewis’s conduct violated clearly established law.” As

a result, in the Fifth Circuit, an officer can now evade accountability for breaking down an innocent family’s door

and holding them at gunpoint so long as he takes some

preparatory steps—even if these steps would lead any

reasonable officer to conclude that his warrant authorizes

the search of a different house.

Had the panel concluded that Garrison clearly established the law, it would have had to deny qualified immunity. Indeed, as the panel noted, the district court found

that Lewis’s “actions were ‘[in]consistent with a reasonable effort to ascertain and identify the place intended to

be searched,’ quoting Maryland v. Garrison[.]” Pet. App.

7a; see also Pet. App. 53. 10 But the panel decided that

a police officer with a warrant for dorm room 5110 searched room

5108 instead because the “room number 5110 * * * was on the wall

between [the] rooms”).

Before explaining why Lewis’s actions failed the meet the Garrison

rule, the district court summarized that Lewis (1) reviewed the

search warrant, which listed the address to be searched as 573 8th

Street (not 593); (2) looked up the target residence (again, 573, not

593) through a city appraisal website; (3) ran a computerized criminal

history search of the occupant of 573 8th Street (who was not one of

the Jimersons); (4) was briefed by federal agents; (5) considered

“real-time intelligence” about vehicle movement in front of 573 8th

Street (not 593); (6) observed 593 8th Street and took note of the front

windows, driveway, and the numbers on the front of the house (which

read “593,” not “573”). Pet. App. 51.

The district court explained that these efforts were insufficient under

Garrison because there were several things “a reasonable police officer” in Lewis’s position “could have reasonably done or noticed” to

avoid raiding the wrong house: (1) “Simply checking the warrant and

looking down at the curb would have avoided [the] mistaken order to

neither Garrison nor Hartsfield were sufficient to

“demonstrat[e] that Lewis’s conduct violated clearly established law.” Pet. App. 14a.

Under Garrison, the Fifth Circuit should have had no

trouble concluding that Lewis’s actions violated clearly

established law. Lewis knew the warrant authorized officers to search 573 8th Street. He knew what the target

house looked like, and he knew where it displayed its address. And if he forgot, there was no time pressure preventing him from double-checking the warrant. See Pet.

App. 54a. Thus, as soon as Lewis realized that the officers

mistakenly gathered at 583 8th Street—the wrong

house—he was “on notice of the risk” that he might be in

the wrong place. See Garrison, 480 U.S. at 87. At that

point, any reasonable officer would have taken a moment

to ensure that he redirected the SWAT team to the correct house. 11 Instead, Lewis hastily ordered the officers

to raid the Jimersons’ house at 593 8th Street without

confirming the address or noticing the obvious physical

enter the wrong house”; (2) Lewis “had the option to count the houses

as he * * * proceeded down 8th Street” because he knew 573 8th

Street was the thirteenth house; (3) “the undisputed evidence shows

a glaring difference between [Petitioners’] residence and the target

location,” specifically a large wheelchair ramp; and (4) “the target

residence and [Petitioners’] residence were separated by one other

residence, which the SWAT team first approached before being directed away by” Lewis. Pet. App. 52–54a.

But, block-quoting the same six examples “the district court summarized” (and deemed constitutionally insufficient), the panel concluded

that “Lewis erred, but he made significant efforts to identify the correct residence.” Pet. App. 13a–14a.

See Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982) (“Where an official could be expected to know that certain conduct would violate

* * * constitutional rights, he should be made to hesitate[.]”).

differences between the houses—including the impossible-to-miss wheelchair ramp that officers had to ascend to

breach the Jimersons’ door. 12 Pet. App. 52a (district court

finding that “the undisputed evidence shows a glaring difference between [the Jimersons’] residence and the target location”). And perhaps most importantly, “Lewis did

not even check the number of the house before instructing the SWAT team to execute the warrant on the Jimersons’ home[.]” Id. at 16a (Dennis, J., dissenting) (citation

omitted).

None of Lewis’s actions reflected a “reasonable effort

to ascertain and identify the place intended to be

searched” that this Court required of the officers in Garrison. Indeed, Lewis’s actions match the example that

Garrison specifically distinguished from its finding of reasonableness—“a situation in which police know there are

two apartments on a certain floor of a building, and have

probable cause to believe that drugs are being sold out of

that floor, but do not know in which of the two apartments

the illegal transactions are taking place.” 480 U.S. at 88

n.13. Lewis did not confront two apartments on the same

floor, but two houses on the same block. His actions were,

therefore, more unreasonable than those outlined in Garrison’s footnote.

As the district court noted, even the after-action photos, supra p. 6,

are “of major significance because the photograph of Plaintiffs’ residence included an attachment [the wheelchair ramp] that was markedly different from the target residence * * * that should have been

readily apparent to any reasonably competent officer.” Pet. App.

48a–49a. Simply put, “[t]he presence of the ramps should have been

a ‘dead giveaway’ that [Petitioners’] house was not the target location.” Id. at 53a.

Through the decision below, the Fifth Circuit discarded the rule of Garrison and created a circuit split on

an issue of Fourth Amendment law that goes to the very

foundation of Americans’ security in their houses from

unreasonable searches—indeed, dangerous and destructive raids. See, e.g., Florida v. Jardines, 569 U.S. 1, 6

(2013) (“[W]hen it comes to the Fourth Amendment, the

home is first among equals.”). Had the Jimersons’ home

been located in Georgia, Minnesota, or California, Garrison would clearly establish the law. But in Texas it does

not.

Only this Court’s intervention can ensure the uniform

interpretation of Garrison and, with it, the Fourth

Amendment’s uniform protection of American homes.

Alternatively, the Fifth Circuit’s grant of qualified immunity is appropriate for summary reversal because conducting a preventable SWAT raid on the wrong house

without confirming its address obviously violates the Constitution. 13 The Court has explained that qualified immunity is unavailable to “the plainly incompetent,” “those

who knowingly violate the law,” Malley v. Briggs, 475 U.S.

335, 341 (1986), and those who commit obvious constitutional violations, Hope, 536 U.S. at 741–742. On the latter

point, Hope instructs that “a general constitutional rule

already identified in the decisional law may apply with

See, e.g., Shoop v. Cassano, 142 S. Ct. 2051, 2057 (2022) (Thomas,

J., dissenting from denial of certiorari) (noting that summary reversal is appropriate when an appellate decision is “obviously wrong and

squarely foreclosed by [Supreme Court] precedent” and “particularly appropriate” when the appeals court committed a “fundamental

erro[r] that this Court has repeatedly admonished [it] to avoid.” (quotations omitted)).

obvious clarity to the specific conduct in question[.]” Id.

at 741. Thus, even if the decision below is correct that the

rule of Garrison is merely a “general principle,” Pet. App.

11a, it is one that applies with obvious clarity here.

To begin, the unconstitutionality of Lewis’s actions is

not only obvious, but uncontested. The Fourth Amendment guarantees Americans the right “to be secure in

their houses against unreasonable searches.” U.S. Const.

amend. IV (cleaned up). Here, “Lewis does not challenge”

that he violated the Jimersons’ rights. Pet. App. 9a. That

should have resolved the matter, but the Fifth Circuit

sidestepped this necessary conclusion by reasoning that

Lewis could not have known that his unreasonable efforts

were constitutionally deficient under Garrison (or other

clearly established law). 14

But even if Lewis had defended the constitutionality

of his actions, they defy basic Fourth Amendment principles. Garrison’s rule of reasonableness, after all, derives

from the Fourth Amendment’s prohibition on unreasonable searches. And this Court has long held that the core

of the Fourth Amendment protects “the right of a man to

retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United

States, 365 U.S. 505, 511 (1961). When an officer has detailed information describing the place to be searched—

including photos and an address—but fails to confirm that

information matches the house he’s about to search,

In the same way that Hope relied on “an Alabama Department of

Corrections (ADOC) regulation[] and a DOJ report informing the

ADOC of the constitutional infirmity of” the actions at issue, 536 U.S.

at 741–742, the fact that Lewis’s actions “completely overlooked” his

department’s “reasonable and normal protocol,” Pet. App. 6a, provides yet another basis to deny him qualified immunity.

despite having the opportunity to do so, breaking into the

wrong house obviously violates the Fourth Amendment.

Here, “Lewis did not even check the number of the house

before instructing the SWAT team to execute the warrant

on the Jimersons’ home[.]” Pet. App. 16a (Dennis, J., dissenting). This, standing alone, should defeat his claim to

qualified immunity: Every reasonable officer would

know, if there is an address to check, he must check it before launching a raid.

The Fifth Circuit should have denied Lewis qualified

immunity. Applying these principles, this Court has summarily reversed the Fifth Circuit twice in recent years for

granting qualified immunity to shield obvious constitutional violations. See Taylor v. Riojas, 592 U.S. 7, 7–10

(2020) (per curiam); McCoy v. Alamu, 141 S. Ct. 1364

(2021) (mem.). If the Court does not grant the petition to

address the question presented, summary reversal is an

appropriate alternative.

II.

This case is a good vehicle because the facts are

undisputed, the issue is important, and the application is simple.

This case is a good vehicle to address the question presented because the facts are straightforward and undisputed; the issue is important; and the question presented

can be answered by the application of a single decision of

this Court. As the Fifth Circuit noted, there are “no genuine disputes of material fact,” and Lieutenant Lewis did

“not challenge [the finding that he] violated [Petitioners’]

rights under” the Fourth Amendment. Pet. App. 3a

(facts), 9a (concession). Thus, this case hinges solely on

whether Maryland v. Garrison clearly established the

Jimersons’ Fourth Amendment rights. Holding that it did

not, the decision below created a circuit split and wrongly

extended immunity to an officer who directed a SWAT

team to raid an innocent family’s home without even

checking the address posted next to the front door.

Facts. The material facts here are not in question: Led

by Lewis, a SWAT team gathered on the front porch of

the wrong house to execute a search warrant. Once Lewis

realized that they were at the wrong house, he quickly ordered the officers to move in the opposite direction from

their target and execute the warrant at another wrong

house—the Jimersons’. At the time, Lewis knew the target address and the physical features of the target house.

And although he could have done so, Lewis failed to confirm or otherwise ascertain these critical details before

ordering the SWAT team to “break and rake” the Jimersons’ house. No factual disputes cloud the question presented or its application to this case.

Importance. This case illustrates the confusion surrounding and inconsistent application of the clearly-established-law test. All agree that Lewis violated the

Fourth Amendment. Pet. App. 9a. This means that all

agree Lewis’s raid was unconstitutional and unreasonable. See ibid. And all agree that this Court has held that

officers executing a search warrant must make “reasonable effort[s] to ascertain and identify the place intended

to be searched.” Id. at 11a (citing Garrison, 480 U.S. at

88). So Lewis knew from Garrison that he had to make a

reasonable effort to ascertain the place he intended to

search, and he concedes that he did not.

To grant Lewis qualified immunity anyway, the Fifth

Circuit insists that Garrison could not put Lewis on notice

of the efforts constitutionally required for identifying the

correct house. Pet. App. 14a. The Fifth Circuit then

envisions a category of efforts that are “significant” but

still unreasonable (as it must, given Lewis’s concession on

the merits). Pet. App. 13a (“Lewis erred, but he made significant efforts[.]”). Yet none of the efforts Lewis took included verifying the address posted on the Jimersons’

house or confirming other conspicuous features. What

more could Garrison have said to put Lewis on notice that

a reasonable officer must check the address or other characteristics of the house he planned to search? The Fifth

Circuit’s approach to clearly established law creates huge

swaths of unconstitutional conduct that is reasonably unreasonable, and thus shielded from liability—if not common sense. If searches can be reasonably unreasonable,

there is little security left in the Fourth Amendment.

Simplicity. The question of clearly established law often implicates multiple decisions from multiple courts.

See, e.g., Rivas-Villegas v. Cortesluna, 595 U.S. 1, 6–7

(2021) (per curiam) (“assuming that Circuit precedent can

clearly establish law for purposes of § 1983,” holding that

a Ninth Circuit case was “materially distinguishable and

thus does not govern the facts of this case”). But this case

rises or falls on the application of a single decision by this

Court: Maryland v. Garrison. Either Garrison clearly established that officers violate the Fourth Amendment

when they search the wrong house without checking the

address or conspicuous features of the house to be

searched, or it did not. The answer is dispositive of a circuit split and the outcome of this case.

CONCLUSION

The Court should grant the petition. If it does not, it

should summarily reverse the decision below.

Respectfully submitted on October 24, 2024,

ERNEST REYNOLDS III

LAW OFFICES OF

ERNEST REYNOLDS

201 Main St., Suite 600

Fort Worth, TX 76102

(817) 332-8850

PATRICK JAICOMO

Counsel of Record

DYLAN MOORE

JARED MCCLAIN

ANYA BIDWELL

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Suite 900

Arlington, VA 22203

(703) 682-9320

pjaicomo@ij.org

APPENDIX

TABLE OF APPENDICES

APPENDIX A:

Revised Opinion of the United States Court of

Appeals for the Fifth Circuit, February 15,

2024 ................................................................................1a

APPENDIX B:

Supplemental Order of the United States District Court for the Northern District of Texas,

April 4, 2022 ................................................................22a

APPENDIX C:

Memorandum Opinion and Order of the United States District Court for the Northern District of Texas, March 31, 2022...................................25a

APPENDIX D:

Findings, Conclusions, and Recommendation

of the United States Magistrate Judge, United

States District Court for the Northern District

of Texas, February 28, 2022 ......................................58a

APPENDIX E:

Order on Petition for Rehearing en Banc from

the United States Court of Appeals for the

Fifth Circuit, June 26, 2024.......................................93a

APPENDIX F:

Judgment of the United States Court of Appeals for the Fifth Circuit, February 1, 2024 ..........96a

Appendix A

Revised Opinion of the United States

Court of Appeals for the Fifth Circuit

February 15, 2024

Appendix A

REVISED FEBRUARY 15, 2024

United States Court of Appeals

For the Fifth Circuit

______________

No. 22-10441

______________

KAREN JIMERSON; JJ; JJ; XP; JP,

Plaintiffs–Appellees,

versus

MIKE LEWIS, LT,

Defendant–Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:20-CV-2826

Before STEWART, DENNIS, AND SOUTHWICK, Circuit

Judges. LESLIE H. SOUTHWICK, Circuit Judge:

A search warrant showed the correct address for

the target house, but police officers executed the warrant at an incorrect address. The homeowner brought

suit against the officers under Section 1983. When

Appendix A

denying summary judgment on the issue of qualified

immunity for the officer who led the search, the district

court held that fact questions prevented deciding the

issue. We find no genuine disputes of material fact. The

disputed issue is one of law. We conclude that this officer’s efforts to identify the correct residence, though

deficient, did not violate clearly established law. REVERSED and REMANDED for dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2019, at approximately 7:15 p.m., Waxahachie Police Department (“WPD”) SWAT Team

Commander Mike Lewis received a call from a Drug

Enforcement Administration (“DEA”) officer. The

DEA officer needed assistance executing a search warrant that night on a suspected methamphetamine

“stash” house located at 573 8th Street, Lancaster,

Texas (“target house”). The officer provided Commander Lewis with information about a drug deal involving the target house. Lewis requested further information, including pictures of the target house,

whether “the location was fortified,” whether “it appeared to have surveillance equipment,” and whether

“there were any exterior indicators on the property

that children may be present.” He also “requested

identifying information on the [methamphetamine]

seller, as well as prior law enforcement history at that

address” involving the Lancaster Police Department

(“LPD”).

In response, Lewis received pictures showing the

front of the house and was told there was “surveillance

Appendix A

established at the location.” DEA agents told Lewis

that they saw no fortification or surveillance cameras

at the property or any evidence of children. The agents

had no description of the people occupying the target

house.

Lewis entered the information into the WPD

SWAT’s risk analysis assessment worksheet, which

scored the incident within the range for “optional

SWAT deployment.” Consequently, Lewis contacted

the WPD Chief and received approval to activate the

SWAT team. He also gathered information on the target house from the Dallas Central Appraisal District

website, including that the house was 744 square feet,

was built in 1952, and had a “large, deeply extending

backyard.”

Lewis then briefed SWAT officers at the WPD. The

group decided to have a six-member team enter the

target house and a three-member team enter the detached garage and backyard. Thereafter, Lewis received “real-time intelligence that surveillance officers

at the scene reported a truck pulling a white box trailer

[had] pulled up in front of the target location.” 1 When

Lewis received a copy of the warrant, he confirmed the

address of the target house. The officers then finalized

their preparations. LPD Officer Zachary Beauchamp

led the SWAT team to the target house. Beauchamp

was followed by the SWAT team vehicle, then Lewis in

his marked patrol unit, then the Waxahachie K9, and

1 The record indicates that this intelligence was not accurate.

Later investigation revealed that the white trailer was in front of

583 8th Street — not the target house.

Appendix A

then several unmarked DEA vehicles. Beauchamp was

directed “to stop about a house before the target location, so SWAT officers could make an approach on

foot.”

When they arrived at the area, the SWAT team vehicle’s driver saw Beauchamp’s vehicle stop abruptly,

“causing him to believe [Beauchamp] may have driven

too far and stopped them too close to the target location.” As the officers exited their vehicles, Beauchamp

pointed to the house with the truck and white trailer in

front of it, and officers began their approach. As the

SWAT team began gathering on the front porch, however, Lewis realized that the house did not look like the

house from intelligence photos. The SWAT team had

assembled at 583 8th Street, not at the target house at

573 8th Street.

When Lewis looked one house to the left, he decided the layout of the front of that house matched the one

in the intel photos. Lewis noticed that “[f]rom left to

right, it had one large window, followed by the front

entry door, followed by a small window and then [four]

larger windows.” He also noticed that “[t]he driveway

was . . . on the left side of the property,” and he believed numbers on the front of the house read “573,”

though the porch light obscured his view. This house, it

turns out, was also the wrong house. The house Lewis

identified was 593 8th Street, two doors down from the

target house.

Nevertheless, Lewis told the team that they were

at the wrong house and instructed them to “go to the

Appendix A

house just to the left of the house where they were.”

That house was the home of plaintiffs Karen Jimerson,

James Parks, and their two young sons and daughter.

Officers ran to the front of the plaintiffs’ house, deployed a flashbang, broke the front windows, and

breached the door. The officers began a protective

sweep and checked for occupants. They “encountered

two females” whom they told to get on the ground. The

officers then encountered an adult male, but before

they could direct him to get down, SWAT team members yelled “Wrong House!”

The SWAT team left the plaintiffs’ home and proceeded to the target house. After the target house was

secured, Lewis returned to the plaintiffs’ house, where

he joined other DEA agents who were already checking on the plaintiffs’ welfare. Plaintiff Karen Jimerson

reported some pain in her side. Lewis called an ambulance and she was taken to the hospital. Lewis also coordinated with a glass company to make repairs and

remained on the scene until 1:30 a.m.

A WPD internal investigation determined that

“reasonable and normal protocol was completely overlooked” and the WPD Chief of Police stated that these

kinds of mistakes should not happen. Lewis was suspended for two days without pay.

In September 2020, the plaintiffs brought this action under 42 U.S.C. § 1983. They alleged violations of

the Fourth Amendment and several state laws against

20 John Doe defendants. They later amended their

complaint, naming each of the individuals in the WPD

Appendix A

SWAT team who executed the warrant, including Lewis. Shortly thereafter, the plaintiffs’ state-law tort

claims were dismissed. The defendants moved for

summary judgment based on qualified immunity, and

the matter was referred to a magistrate judge for pretrial management.

The magistrate judge recommended the district

court grant qualified immunity to all the officers,

whether they entered the house or not. The magistrate

judge also concluded the plaintiffs failed to show that

Lewis did not make reasonable efforts to identify the

target house.

The district court agreed with the magistrate

judge’s analysis on qualified immunity except with respect to whether Lewis made reasonable efforts to

identify the target house. The court found “a genuine

dispute of material fact regarding whether [Lewis]

made the necessary reasonable effort to identify the

correct residence and whether his actions were

‘[in]consistent with a reasonable effort to ascertain and

identify the place intended to be searched,’” quoting

Maryland v. Garrison, 480 U.S. 79, 88 (1987). The court

denied Lewis qualified immunity. Lewis timely appealed.

DISCUSSION

Federal and state officials may be entitled to qualified immunity from claims for money damages for their

actions. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).

To overcome this defense, a plaintiff needs to plead

plausible facts “(1) that the official violated a statutory

Appendix A

or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”

Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)).

If the district court denies qualified immunity either on a motion to dismiss or on summary judgment,

the defendant official may immediately appeal under

the collateral order doctrine. Behrens v. Pelletier, 516

U.S. 299, 307 (1996). Here, summary judgment was denied, and our review is de novo. Joseph ex rel. Joseph

v. Bartlett, 981 F.3d 319, 331 (5th Cir. 2020). Review is

limited to considering issues of law, including the legal

significance of factual disputes identified by the district

court. Id. at 331. That means “we may evaluate whether a factual dispute is material (i.e., legally significant),

but we may not evaluate whether it is genuine (i.e., exists).” Id. (emphasis in original). “Because the plaintiff

is the non-moving party, we construe all facts and inferences in the light most favorable to the plaintiff.”

Melton, 875 F.3d at 261.

As a preliminary matter, Lewis argues the plaintiffs failed to plead and argue that his efforts to identify

the correct house were unreasonable. A plaintiff seeking to overcome qualified immunity “must specifically

identify each defendant’s personal involvement in the

alleged wrongdoing.” Thomas v. Humfield, 32 F.3d 566,

1994 WL 442484, at *5 (5th Cir. 1994). The plaintiffs

complied with the need for specificity by alleging in the

complaint that Lewis “was the person in charge” of the

mistaken raid on their home, and in their summary

judgment arguments that Lewis was the “overall lead-

Appendix A

er of [the] misconduct” and that he overlooked “reasonable and normal protocol.”

As to the merits, Lewis does not challenge the district court’s analysis of whether defendants violated

the plaintiffs’ rights under federal law. The Fourth

Amendment provides that individuals have a right “to

be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” U.S.

CONST. amend. IV. The Supreme Court has held that

officers must make “reasonable effort[s] to ascertain

and identify the place intended to be searched” in order

to comply with the Fourth Amendment. Garrison, 480

U.S. at 88. To be clear about an occasional irrelevant

addition to the proper analysis, we do not consider

whether the officer’s actions were “objectively unreasonable.” That quoted standard is a “vestige of older

caselaw that predates the Supreme Court’s current

test.” Parker v. LeBlanc, 73 F.4th 400, 406 n.1 (5th Cir.

2023). In another precedential rejection of an “objectively unreasonable” component of qualified immunity,

we held there is no “standalone ‘objective reasonableness’ element to the Supreme Court’s two-pronged test

for qualified immunity.” Baker v. Coburn, 68 F.4th 240,

251 n.10 (5th Cir. 2023).

We evaluate the reasonableness of Lewis’s actions

because the plaintiffs’ claims arise under the Fourth

Amendment. The district court denied qualified immunity because the court found a “genuine dispute of

material fact regarding whether [Lewis] made the necessary reasonable efforts to identify the correct residence.” As we stated earlier, we cannot review a dis-

10a

Appendix A

trict court’s determination that a factual dispute is

genuine. Bartlett, 981 F.3d at 331. We are to decide,

though, legal significance, i.e., whether disputed facts

are material to resolution of the case. Id.

The district court did not find evidentiary disputes

about what Lewis and others did before entering the

incorrect house. The court stated that the central dispute was whether those actions constituted “necessary

reasonable efforts.” Certainly, unlike here, exactly

what an officer did may sometimes be factually unclear.

A court’s determination of reasonableness under the

Fourth Amendment, though, “‘is predominantly an objective inquiry.’” al-Kidd, 563 U.S. at 736 (quoting City

of Indianapolis v. Edmond, 531 U.S. 32, 47 (2000)). The

circumstances are to be “viewed objectively” and a determination made of whether they “justify” the search.

Id. (quoting Scott v. United States, 436 U.S. 128, 138

(1978)).

Consequently, as a legal issue for our de novo review, we consider whether Lewis’s conduct violated

clearly established law. See id. at 325–26. Clearly established law is determined by reference to “controlling authority[,] or a robust consensus of persuasive

authority.” Delaughter v. Woodall, 909 F.3d 130, 139

(5th Cir. 2018) (citation omitted). The keystone in this

analysis is fair warning. Id. at 139–40. To overcome

qualified immunity, plaintiffs must cite “a body of relevant case law [] in which an officer acting under similar

circumstances . . . was held to have violated” a defendant’s constitutional rights. Bartlett, 981 F.3d at 330

(quotation marks and citations omitted). “While there

11a

Appendix A

need not be ‘a case directly on point,’ the unlawfulness

of the challenged conduct must be ‘beyond debate.’” Id.

(quoting al–Kidd, 563 U.S. at 741).

Compliance with the Fourth Amendment requires a

law enforcement officer’s “reasonable effort[s] to ascertain and identify the place intended to be searched.”

Garrison, 480 U.S. at 88. In applying that general principle, the district court relied on two opinions. One was

a nonprecedential opinion of this court. Rogers v.

Hooper, 271 F. App’x 431 (5th Cir. 2008). The other

was nonprecedential in the Fifth Circuit because it was

issued by a different circuit court of appeals. Hartsfield

v. Lemacks, 50 F.3d 950 (11th Cir. 1995). 2 The plaintiffs

do not cite any other authority.

In Rogers, we affirmed a grant of qualified immunity. Rogers, 271 F. App’x at 436. Officers secured a warrant to search a suspected drug house. Id. at 432. Before executing the warrant, officers drove by the target

house to confirm its location. Id. They saw a maroon

vehicle parked in front of the target house. Id. The officers then briefed their team on the location of the

A nonprecedential opinion “cannot be the source of clearly

established law for qualified immunity analysis.” Marks v. Hudson, 933 F.3d 481, 486 (5th Cir. 2019). Nevertheless, such opinions

may be used to illustrate clearly established law. Bartlett, 981

F.3d at 341 n.105; see also Cooper v. Brown, 844 F.3d 517, 525 n.8

(5th Cir. 2016). As for Hartsfield, “[w]e have not previously identified the level of out-of-circuit consensus necessary to put the relevant question ‘beyond debate’” and to constitute clearly established law. Morrow v. Meachum, 917 F.3d 870, 879 (5th Cir. 2019)

(quoting al-Kidd, 563 U.S. at 741). It is unlikely that one out-ofcircuit case is sufficient.

12a

Appendix A

home and developed a plan for executing the warrant.

Id. The night of the warrant’s execution, however, the

maroon vehicle was parked in front of the house next

door to the target house. Id. Officers broke into that

house before ultimately realizing their mistake. Id.

We emphasized that the officers made several efforts to identify the correct residence, including conducting “initial surveillance of the house shortly before

the warrant was executed, though [the officers] increased the chance for mistake by approaching the

house in the opposite direction than they would use later.” Id. at 435. There were differences in appearance

between the mistaken house and target house, but

“those differences were less noticeable at night.” Id.

Further, we acknowledged the confusion that arose

from the fact that “a car that earlier had been thought

to be in front of the house to be searched was instead in

front of the [p]laintiffs’ home when the search began.”

Id. “[T]he officers made reasonable efforts, though obviously insufficient ones, to identify the correct house.”

Id.

In Hartsfield, the Eleventh Circuit determined that

an officer was not entitled to qualified immunity when

he executed a warrant at the wrong residence. 50 F.3d

at 956. The officer had been to the proper residence the

day before. Id. at 951. On the day of the raid, though,

he did little to ensure he was leading officers to the

correct address:

As it is uncontroverted that the numbers on the

houses are clearly marked, and that the raid

13a

Appendix A

took place during daylight hours, simply checking the warrant would have avoided the mistaken entry. Moreover, evidence before the court

showed that the houses were located on different parts of the street, separated by at least one

other residence, and that their appearances

were distinguishable.

Id. at 955. “[S]earching the wrong residence when [the

officer] had done nothing to make sure he was searching the house described in the warrant” violated clearly

established law. Id.

The dissent argues Hartsfield and Rogers constitute clearly established law that distinguishes Lewis’s

actions as objectively unreasonable under the fair

warning analysis. Even if these two nonprecedential

opinions were indicative of clearly established law,

they would not support that Lewis violated that law.

Lewis erred, but he made significant efforts to identify

the correct residence. As the district court summarized, Lewis

(1) reviewed the search warrant; (2) conducted

additional searches on the target residence

through the Dallas Central Appraisal District

website; (3) ran a computerized criminal history

search of the occupant of the target residence;

(4) debriefed with DEA agents twice; (5) was

provided with “real-time intelligence that surveillance officers at the scene reported a truck

pulling a white box trailer just pulled up in front

of the target location and stopped;” and (6) ob-

14a

Appendix A

served the home and took note of the front windows, driveway, and the numbers on the front of

the home in an attempt to confirm the residence

as being the target location.

To elaborate on that final point, Lewis was careful to

confirm the house had the proper arrangement and size

of windows, but only later became aware that those

window features were shared by the plaintiffs’ home.

Moreover, Lewis’s confusion was compounded by misleading intelligence. When officers arrived, the white

trailer was not parked in front of the target house.

Lewis correctly identified that fact, but then erred in

redirecting the officers. Lewis was far more careful

than the officers in the two opinions cited to us as

showing he violated clearly established law.

The “central concern” when evaluating the immunity question “is whether the official has fair warning

that his conduct violates a constitutional right.”

Delaughter, 909 F.3d at 140. That means the “dispositive question is whether the violative nature of particular conduct is clearly established.” Morrow, 917 F.3d at

875 (emphasis in original) (quotation marks and citation

omitted). Here, the plaintiffs have not cited authority

demonstrating that Lewis’s conduct violated clearly

established law.

We REVERSE the district court’s denial of summary judgment to Lewis and REMAND in order for

the district court to dismiss this suit.

15a

Appendix A

JAMES L. DENNIS, Circuit Judge, dissenting:

I respectfully dissent from the majority opinion.

The district court properly denied qualified immunity

to Lieutenant Mike Lewis, commander of the Waxahachie Police Department (WPD) SWAT team. The Jimersons’ Fourth Amendment claim against Lewis is

based on his failure to take sufficient steps to ensure

that his team executed a no-knock warrant at the correct address. The district court found that factual disputes as to the reasonableness of Lewis’ efforts to identify the target house precluded granting qualified immunity to Lewis. While I agree with the majority’s

finding that there are no factual disputes as to Lewis’

actions in leading the SWAT team to the wrong residence, I disagree that Lewis is entitled to qualified

immunity 1 under clearly established law.

Based on the undisputed facts in this case, Lewis

failed to use the intelligence he received from the Drug

Enforcement Administration (DEA) that would have

It’s worth noting that one of our colleagues recently suggested that “the Supreme Court’s original justification for qualified

immunity—that Congress wouldn’t have abrogated common-law

immunities absent explicit language—is faulty because the 1871

Civil Rights Act expressly included such language.” Rogers v.

Jarrett, 63 F.4th 971, 980 (5th Cir. 2023) (Willett, J., concurring);

see also Alexander A. Reinert, Qualified Immunity’s Flawed

Foundation, 111 CAL. L. REV. 201, 207–08 (2023) (arguing that

“the problem with current qualified immunity doctrine is not just

that it departs from the common law immunity that existed when

Section 1983 was enacted,” but also that “no qualified immunity

doctrine at all should apply in Section 1983 actions, if courts stay

true to the text adopted by the enacting Congress and other evidence of legislative intent”).

16a

Appendix A

easily allowed him to direct the SWAT team to the target house. The DEA alerted Lewis that the house

number was painted on the curb and affixed to a wooden pole on the deck, and that the target house was the

thirteenth one on the block. Despite having this information, Lewis did not even check the number of the

house before instructing the SWAT team to execute

the warrant on the Jimersons’ home—separated from

the target house by more than one2 residence—by deploying a flash bang, breaking all their front windows

using the “break and rake” technique, and forcing open

the front door. Lewis wrote in an incident report that

he “believed” the numbers on the Jimersons’ home to

be that of the target house, despite the fact that he

admitted his view was obscured because the Jimersons

“had a brightly glowing porch light directly above them

that was causing a reflection on the siding of the

house.” Regardless of Lewis’ ability to see the numbers

on the home, the search warrant alerted him that the

target house number was written on the curb in front

of the house and on a wooden pole supporting the

house—not on the front of the house like at the Jimerson residence. Even more glaring are the notable physical distinctions between the two houses: while there is

a prominent wheelchair ramp that protrudes from the

Jimerson house with railings that appear to be waisthigh, the target house had no such ramp and featured a

As the majority opinion acknowledges, the SWAT team initially assembled on the front porch of the wrong house. After

Lewis recognized that the SWAT team was at the wrong house,

he instructed the SWAT team to execute the warrant on the Jimerson residence, which was in the opposite direction of the target

residence.

17a

Appendix A

chain-link fence around the perimeter of the property—differences evident from the photographs of the

target house provided to Lewis before the execution of

the warrant.

Though it is undisputed that Lewis violated the

Jimersons’ Fourth Amendment rights in executing a

SWAT-style entry into their home without a warrant,

the majority finds that the Jimersons’ claim fails because the unlawfulness of Lewis’ actions were not

clearly established law. 3 Specifically, the majority concludes that there is not enough legal authority supporting the Jimersons’ contention that Lewis’ efforts to locate the target residence were constitutionally deficient. While the majority is certainly correct that “[a]

clearly established right is one that is sufficiently clear

that every reasonable official would have understood

that what he is doing violates that right,” Mullenix v.

Luna, 577 U.S. 7, 11 (2015), they nonetheless unfairly

limit the legal authority the Jimersons may rely on in

rebutting Lewis’ assertion of qualified immunity. The

“focus” of the qualified immunity analysis is whether

We have sometimes described the second prong of the qualified immunity analysis as an inquiry into whether an official’s “actions were objectively unreasonable in light of clearly established

law.” See, e.g., Roque v. Harvel, 993 F.3d 325, 334 (5th Cir. 2021)

(Willett, J.). The different phrasing is of no moment because, of

course, violating a clearly established right is objectively unreasonable. See Ziglar v. Abbasi, 582 U.S. 120, 151 (2017); see also

Anderson v. Creighton, 483 U.S. 635, 653 (1987) (“Reliance on the

objective reasonableness of an official’s conduct, as measured by

reference to clearly established law[.]”); Horvath v. City of Leander, 946 F.3d 787, 800 (5th Cir. 2020) (Ho, J., concurring) (quoting

Pearson v. Callahan, 555 U.S. 222, 232 (2009)).

18a

Appendix A

the officer had “fair notice” that his conduct was unlawful, and here the clearly established law gave Lewis

ample warning of the constitutionally sufficient efforts

required to ensure he directed the SWAT team to the

correct residence. Brosseau v. Haugen, 543 U.S. 194,

198 (2004) (noting that the “focus” of qualified immunity analysis is “whether the officer had fair notice that

her conduct was unlawful”).

Contrary to the majority’s assertion that there is no

clearly established law that would have put Lewis on

notice of the unlawfulness of his actions, the Supreme

Court has stated that officers must make “a reasonable

effort to ascertain and identify the place intended to be

searched within the meaning of the Fourth Amendment.” Maryland v. Garrison, 480 U.S. 79, 88 (1987). In

Garrison, officers mistakenly executed a search warrant on the wrong apartment because they believed

that the third floor of an apartment complex contained

only one rather than two apartments. Id. There, the

Supreme Court found that the officers made a reasonable effort to identify the correct apartment because

“[t]he objective facts available to the officers at the

time suggested no distinction between McWebb’s

apartment and the third-floor premises.” Id. Specifically, those officers made a “reasonable effort” to identify

the target residence where they: (1) went to the premises to see if it matched the description given by an informant; (2) checked with the Baltimore Gas and Electric Company to ascertain in whose name the third

floor apartment was listed; and (3) checked with the

Baltimore Police Department to make sure that the description and address of the suspect matched the in-

19a

Appendix A

formation provided by the informant. Id. at 81–82, 85–

86 n.10.

Moreover, Hartsfield v. Lemacks, 50 F.3d 950 (11th

Cir. 1995) “aptly illustrates the established right” at

issue in the Jimersons’ claim against Lewis. See id. at

955 (recognizing as “clearly established law” that “absent probable cause and exigent circumstances, a warrantless search of a residence violates the Fourth

Amendment, unless the officers engage in reasonable

efforts to avoid error”); see also Cooper v. Brown, 844

F.3d 517, 525 (5th Cir. 2016) (explaining that where a

case “does not constitute clearly established law for

purposes of QI” it may still “aptly illustrates the established right”). In Hartsfield, the Eleventh Circuit denied qualified immunity where an officer “had the warrant in his possession” yet “did not check to make sure

he was leading the other officers to the correct address” Hartsfield, 50 F.3d at 955. There, the officers’

efforts to identify the target of the search warrant

were insufficient where: (1) the numbers were clearly

marked on the houses; (2) the houses were separated

by at least one other residence; and (3) the houses were

physically distinguishable; (4) there were no exigent

circumstances; and (5) the raid occurred during the

daytime. Id. at 952–55. Here, similarly, the numbers on

the houses were clearly marked (despite it being

nighttime), the houses were separated by at least one

residence and were physically distinguishable, and

there were no exigent circumstances. While Lewis arguably did more to identify the correct residence than

the officer in Hartsfield, who “did nothing to make sure

he was leading the officers to the correct residence,”

20a

Appendix A

Lewis nonetheless could have easily avoided the mistaken entry by “simply checking” the house number or

using other information at his disposal to identify the

correct residence. Id. at 955. In light of Hartsfield’s

guidance interpreting the clearly established law in

Garrison, the Jimersons rebutted Lewis’ assertion of

qualified immunity.

Our unpublished decision in Rogers v. Hooper, 271

F. App’x 431 (5th Cir. 2008) also supports the denial of

qualified immunity to Lewis. In Rogers, we affirmed a

grant of qualified immunity to an officer who mistakenly led his team to the wrong house where: (1) the two

houses were next to each other; (2) the officer had previously been at the correct house twice; and (3) the minor differences between the houses were “less noticeable at night.” Here, in contrast, the houses were not

next to each other, and Lewis could have easily

checked the number of the target house that was

painted on the curb and affixed to a wooden beam supporting the home’s porch. Moreover, the obvious physical distinctions between the houses would have been

noticeable even at night; while the target house had a

chain-link fence around it, the Jimerson house did not

have any fence and featured a wheelchair ramp with

waist-high railings along it. Because Lewis did not take

the same steps 4 as the officer in Rogers to identify the

Notably, the officers in Rogers and Garrison each previously

visited the correct houses as part of their efforts to identify the

target of the search warrant, whereas here Lewis made no such

attempts. See Rogers, 271 F. App’x at 433–43 (noting that the officers “had been at the correct house at least twice before”); Garrison, 480 U.S. at 86 n.10 (“The officer went to [the target residence]

21a

Appendix A

correct residence, our nonprecedential case law supports the denial of qualified immunity.

In light of the efforts identified as adequate by the

Supreme Court in Garrison and elaborated on by circuit courts, Lewis had “fair notice” of the minimum efforts required to comply with the Fourth Amendment

when identifying a house for the purposes of executing

a search warrant. Brosseau, 543 U.S. at 198; see also

Hope v. Pelzer, 536 U.S. 730, 731 (2002) (“Qualified

immunity operates to ensure that before they are subjected to suit, officers are on notice that their conduct

is unlawful.”). As announced in Garrison and elucidated

in Rogers and Hartsfield, it is “beyond debate” that

Lewis’ efforts to identify the target house were constitutionally deficient. Ashcroft v. al–Kidd, 563 U.S. 731,

741 (2011). The panel should affirm the district court’s

denial of Lewis’ assertion of qualified immunity.

and found that it matched the description given by the informant.”). WPD Police Chief Wade Goolsby even testified that after

this incident, the WPD implemented additional procedures requiring officers to “get[] eyes on the location so that [the officer] not

only sees the target, but the surrounding homes” before executing

a search warrant.

22a

Appendix B

Supplemental Order of the United States District

Court for the Northern District of Texas

April 4, 2022

23a

Appendix B

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KAREN JIMERSON,

et al.,

Plaintiff,

LT. MIKE LEWIS, et

al.,

Defendants.

§ Civil Action No.. 3:20§ CV-2826-L-BH

SUPPLEMENTAL ORDER

On March 31, 2022, the court filed a Memorandum

Opinion and Order (Doc. 194), addressing the Findings,

Conclusions, and Recommendation of the United States

Magistrate Judge (Doc. 188) (“Report”), filed on February 28, 2022. The Report recommended that the court

grant in part and deny in part Defendants’ Motion for

Summary Judgment (Doc. 167), filed on June 23, 2021. In

its Memorandum Opinion and Order, the court rejected

the magistrate judge’s findings and conclusions that Defendant Lt. Mike Lewis should be entitled to qualified

immunity. Although the court’s Memorandum Opinion

and Order did not include that the magistrate judge’s

findings of fact were clearly erroneous or that the conclusions were contrary to law, it is clear from the court’s

Memorandum Opinion and Order that such was the case

24a

Appendix B

when it rejected the magistrate judge’s findings of fact

and conclusions of law as to whether Defendant Lt. Mike

Lewis was entitled to qualified immunity.

To the extent that one has any doubt about the

court’s Memorandum Opinion and Order, the court expressly determines that the magistrate judge’s findings

of fact and conclusions of law were clearly erroneous and

contrary to law, respectively. Accordingly, the court issues this order nunc pro tunc, as one that is effective as

of March 31, 2022, on the same date and time as its Memorandum Opinion and Opinion was filed.

It is so ordered this 4th day of April, 2022.

/s/ Sam A. Lindsay

Sam A. Lindsay

United States District

Judge

25a

Appendix C

Memorandum Opinion and Order of the United States

District Court for the Northern District of Texas

March 31, 2022

26a

Appendix C

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KAREN JIMERSON,

et al.,

Plaintiff,

LT. MIKE LEWIS, et

al.,

Defendants.

§ Civil Action No. 3:20§ CV-2826-L-BH

MEMORANDUM OPINION AND ORDER

Before the court is Named Defendants’ Motion for

Summary Judgment (Doc. 167), filed on June 23, 2021

(“Motion”). The case was referred to Magistrate Judge

Irma Carrillo Ramirez, who entered the Findings, Conclusions, and Recommendation of the United States

Magistrate Judge (Doc. 188) (“Report”) on February 28,

2022, recommending that the court grant in part and

deny in part the Motion. Specifically, the Report recommends that:

All claims for Fourth Amendment violations

against Dunn, Glidewell, J. Lewis, Taylor, and K9

Officer should be DISMISSED with prejudice on

grounds of qualified immunity under the constitutional violation prong, and [Plaintiffs’] claims

27a

Appendix C

for unlawful entry and for unlawful search

against Gonzales, Young, Fuller, Koch, Leader,

and Commander should be DISMISSED with

prejudice on grounds of qualified immunity under

the objective reasonableness prong. Because no

Fourteenth Amendment claims were asserted

against them, Defendants’ motion for summary

judgment on the Fourteenth Amendment claims

should be DENIED as moot. This action should

be dismissed with prejudice as to Defendants.

Report 27.

On March 14, 2022, Plaintiffs filed objections to the

Report (Doc. 192), contending that: (1) they did not

agree to transfer this case to the magistrate, nor did the

court authorize such transfer; (2) the magistrate judge

erred by failing to follow summary judgment procedure

under Rule 56 of the Federal Rules of Civil Procedure;

(3) the magistrate judge erred by improperly conducting

a “mini-trial” and acting as a “fact finder”; (4) the magistrate judge erred by failing to view the summary judgment evidence in the light most favorable to Plaintiffs;

and (5) the magistrate judge improperly struck Plaintiffs’ expert, Mr. Gill. Id. Named Defendants filed their

response on March 24, 2022 (Doc. 193), agreeing with the

findings, conclusions, and the recommendation in the

Report. The court addresses each objection in turn, and

for the reasons stated herein overrules Plaintiffs’ objections.

28a

Appendix C

Procedural Background

On September 11, 2020, Karen Jimerson, James

Parks, Jyden Jimerson, Xavien Parks, and Jasamea Jimerson (“Plaintiffs”) sued Lt. Mike Lewis of the Waxahachie Police Department (“WPD”) SWAT team and 20

John Does alleging Fourth Amendment violations stemming from an execution of a search warrant at Plaintiffs’

residence on March 27, 2019. Plaintiffs’ First Amended

Complaint likewise asserts claims against unidentified

John Does 1 through 20 (“John Does”). It also names the

following members of the WPD in their individual capacities as Defendants: Lt. Mike Lewis, Brent Dunn, Dustin

Koch, Andrew Gonzales, Derrick Young, Brian Fuller,

Stephen Sanders, James Lewis, O.T. Glidewell, James

Taylor, Derek Berringer (“Named Defendants”). In addition, Zach Beauchamp was named as a Defendant, but

he was previously dismissed with prejudice from the action pursuant to a joint stipulation (Doc. 151). On April

21, 2021, the court dismissed with prejudice Plaintiffs’

state tort claims against the Named Defendants (Doc.

160).

II.

Discussion

A. Objections to the Report

1. Alleged Transfer of Case to Magistrate

Judge

Plaintiffs contend that this case was transferred to

the magistrate judge, and they object to this alleged

transfer. Doc. 192 at 1. This case was not transferred to

the magistrate judge. Plaintiffs’ objection shows their

29a

Appendix C

lack of appreciation for the rules that allow a district

judge to refer cases to a magistrate judge. Pursuant to

28 U.S.C. § 636(b)(1)(B), a district judge may “designate

a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court

proposed findings of fact and recommendations for the

disposition, by a judge of the court, of any [dispositive

motion.]” Rule 72 of the Federal Rules of Civil Procedure also provides that a magistrate judge “must enter

a recommended disposition, including, if appropriate,

proposed findings of fact” for dispositive motions. Fed.

R. Civ. P. 72. Additionally, the court issued a Standing

Order of Reference (Doc. 159) on April 20, 2021, which

stated:

This case is hereby referred to United States

Magistrate Judge Irma Carrillo Ramirez for pretrial management. All nondispositive motions,

pending or prospective, are referred to the magistrate judge for determination. All dispositive

motions, pending or prospective, are referred to

the magistrate judge for findings of fact and recommendations. All other pretrial matters, including scheduling and alternative dispute resolution,

are referred to the magistrate judge for appropriate action consistent with applicable law. Magistrate Judge Ramirez is to notify the court when

the case is ready for a trial setting.

Doc. 159.

30a

Appendix C

Consistent with 28 U.S.C. § 636, Rule 72, and the

court’s order, the magistrate judge issued the Report

that made recommendations to the court concerning the

disposition of the Motion. Because the magistrate judge

acted consistent with the controlling statute and the

court’s orders, the court overrules Plaintiffs’ first objection. Moreover, the magistrate judge did not dispose of

the Motion; she merely made recommendations to the

court through the Report. Accordingly, the court also

overrules Plaintiffs’ third objection that the magistrate

judge conducted a “mini-trial” and was acting as a “fact

finder.” The magistrate judge may not make the final decision regarding the Motion. That is expressly reserved

for this court.

2. Summary Judgment Standard and Application

Plaintiffs next contend that the magistrate judge

erred by (1) failing to follow summary judgment procedure under Rule 56 of the Federal Rules of Civil Procedure; and (2) failing to view the summary judgment evidence in the light most favorable to Plaintiffs. Doc. 192

at 3-8. The court disagrees, except to the extent that it

rejects the magistrate judge’s findings as to the second

prong of the qualified immunity test with respect to Defendant Lt. Mike Lewis.

31a

Appendix C

a. Legal Standard for Summary Judgment

Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex

Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v.

Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.

1998). A dispute regarding a material fact is “genuine” if

the evidence is such that a reasonable jury could return

a verdict in favor of the nonmoving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all facts and inferences in the light most

favorable to the nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux

v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir.

2005). Further, a court “may not make credibility determinations or weigh the evidence” in ruling on a motion

for summary judgment. Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S.

at 254-55.

Once the moving party has made an initial showing

that there is no evidence to support the nonmoving

party’s case, the party opposing the motion must come

forward with competent summary judgment evidence of

the existence of a genuine dispute of material fact.

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S.

574, 586 (1986). On the other hand, “if the movant bears

the burden of proof on an issue, either because he is the

plaintiff or as a defendant he is asserting an affirmative

32a

Appendix C

defense, he must establish beyond peradventure all of

the essential elements of the claim or defense to warrant

judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d

1190, 1194 (5th Cir. 1986) (emphasis in original). “[When]

the record taken as a whole could not lead a rational trier

of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’” Matsushita, 475 U.S. at 587.

[sic] (citation omitted). Mere conclusory allegations are

not competent summary judgment evidence, and thus

are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).

Unsubstantiated assertions, improbable inferences, and

unsupported speculation are not competent summary

judgment evidence. See Forsyth v. Barr, 19 F.3d 1527,

1533 (5th Cir. 1994).

The party opposing summary judgment is required

to identify specific evidence in the record and to articulate the precise manner in which that evidence supports

his or her claim. Ragas, 136 F.3d at 458. Rule 56 does not

impose a duty on the court to “sift through the record in

search of evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see also

Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 &

n.7 (5th Cir. 1992). “Only disputes over facts that might

affect the outcome of the suit under the governing laws

will properly preclude the entry of summary judgment.”

Anderson, 477 U.S. at 248. Disputed fact issues that are

“irrelevant and unnecessary” will not be considered by

a court in ruling on a summary judgment motion. Id. If

the nonmoving party fails to make a showing sufficient

to establish the existence of an element essential to its

case and on which it will bear the burden of proof at trial,

33a

Appendix C

summary judgment must be granted. Celotex, 477 U.S.

at 322-23.

b. Analysis

The magistrate judge outlined the correct legal

standard for summary judgment procedure under Rule

56 of the Federal Rules of Civil Procedure and proceeded to analyze the facts consistent with Rule 56 and

controlling precedent. 1 In particular, the court agrees

The court, similar to the Report, finds that Plaintiffs have not asserted a violation of the Fourteenth Amendment against the

Named Defendants. Because Plaintiffs have only asserted allegations of unlawful searches and seizures, such claims fall under the

Fourth Amendment, not the Fourteenth. See Graham v. Connor,

490 U.S. 386, 396 (1989) (holding that “all claims that law enforcement officers have used excessive force—deadly or not—in the

course of an arrest, investigatory stop, or other ‘seizure’ of a free

citizen should be analyzed under the Fourth Amendment and its

‘reasonableness’ standard, rather than under a “substantive due

process’ approach.”) (emphasis in original). Additionally, the court

finds that Plaintiffs have not asserted an excessive force claim. The

elements of an excessive force claim are: “(1) an injury; (2) which

resulted directly and only from a use of force that was clearly excessive; and (3) the excessiveness of which was clearly unreasonable.” Ratliff v. Aransas County, Tex., 948 F.3d 281, 287 (5th Cir.

2020); see Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017) (reciting

that the second element of an excessive force claim requires that

the force be “clearly excessive”); Darden v. City of Fort Worth,

Texas, 880 F.3d 722, 727 (5th Cir. 2018) (same); Goodson v. City of

Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000) (same); Williams v.

Bramer, 180 F.3d 699, 703 (5th Cir. 1999) (same). Even if the court

liberally construes Plaintiffs’ allegations as having alleged an excessive force claim, they fail to raise a genuine dispute of material fact

as to elements two and three. This is so because there is no evidence

in the record that the use of force used on Plaintiffs was clearly

34a

Appendix C

with the Report with respect to finding that the police

officers who provided unchallenged declarations that

they did not enter Plaintiffs’ home are entitled to qualified immunity. See Simmons v. City of Paris, 378 F.3d

476, 481 (5th Cir. 2004) (finding officers were entitled to

qualified immunity because there was no evidence that

they entered the residence with the other officers). The

court also agrees that when viewing the evidence in the

light most favorable to Plaintiffs, the officers who did

enter Plaintiffs’ home immediately stopped searching

the home upon learning it was the wrong residence.

Moreover, Plaintiffs’ summary judgment evidence does

not identify which officers they assert remained in the

residence after realizing their mistake. As such, those

officers who entered Plaintiffs’ residence are entitled to

qualified immunity. See id. at 481. The court, therefore,

overrules these objections. To the extent the court disagrees with the Report, the reasoning for the disagreement is analyzed below.

3. Striking of Plaintiffs’ Expert Witness

Under Rule 702

Plaintiffs next assert the magistrate judge erred by

improperly striking Plaintiffs’ expert, Mr. Gill. See Doc.

192 at 8-10. The court disagrees. For the reasons stated

below, the court overrules this objection.

On March 8, 2021, Plaintiffs filed their expert disclosures under Federal Rule of Civil Procedure 26(a)(2)

(Doc. 150). Plaintiffs listed Robert “Bob” Gill, currently

excessive and that the excessiveness was clearly unreasonable. See

id.

35a

Appendix C

a practicing attorney in Fort Worth, Tarrant County,

Texas, as a retained expert, and his report purports to

address the unreasonableness of the Named Defendants’ actions on March 27, 2019. Id. In their response to

the Motion, Plaintiffs attach a declaration by Mr. Gill.

Doc. 183, Exhibit 9. Named Defendants object and move

to strike Mr. Gill and his declaration as inadmissible under Rule 702 of the Federal Rules of Evidence. Doc. 187

at 5. The Report recommends striking Mr. Gill and his

declaration after finding his opinions were unreliable under Rule 702. Doc. 188 at 10.

a. Legal Standard for Expert Testimony

The admissibility of evidence is a procedural issue

governed by federal law. See Reed v. General Motors

Corp., 773 F.2d 660, 663 (5th Cir. 1985). Federal Rule of

Evidence 702 governs the admissibility of expert testimony and provides:

A witness who is qualified as an expert by

knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in

issue;

(b) the testimony is based on sufficient facts or

data;

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(d) the expert has reliably applied the principles

and methods to the facts of the case.

The trial court acts as a “gatekeeper” to ensure that

“any and all scientific evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579, 589 (1993). “Daubert’s general holding—setting forth the trial judge’s general ‘gatekeeping’

obligation—applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge” that is non-scientific in nature. Kumho Tire Co. v. Carmichael, 526 U.S.

137, 141 (1999). In Kumho Tire, the Supreme Court resolved a split among the circuits and held that Daubert’s

“gatekeeping” function applied to all expert opinion testimony based on specialized knowledge, not merely scientific expert testimony.

As part of its gatekeeping role, the court determines

the admissibility of expert testimony based on Rule 702,

and Daubert and its progeny. The amendments to Federal Rule of Evidence 702, effective December 1, 2000,

essentially codify Daubert and Kumho Tire. The Advisory Committee’s Notes to Rule 702 state that the determination of whether an expert’s opinions are reliable

is based upon sufficient facts or data that calls for a

“quantitative rather than qualitative analysis.” In addressing this issue, the “question is whether the expert

considered enough information to make the proffered

opinion reliable. . . . The expert must base [his or her]

opinion on at least the amount of data that a reliable

methodology demands.” 29 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 6268

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(2d ed. 1987). Further, in reviewing a Daubert challenge,

the court makes no credibility determinations; it only

decides whether the threshold reliability standards

have been satisfied. See Fed. R. Evid. 702 Advisory

Committee’s Notes (2000 Amendments).

“The court may admit proffered expert testimony

only if the proponent . . . demonstrates that (1) the expert is qualified, (2) the evidence is relevant to the suit,

and (3) the evidence is reliable.” E.E.O.C. v. S & B Indus., Inc., No. 3:15-CV-641-D, 2017 WL 345641, at *2

(N.D. Tex. Jan. 24, 2017) (citing Kumho Tire Co., 526

U.S. at 147) (internal quotation marks omitted). The

burden is on the proponent of the expert testimony to

establish its admissibility by a preponderance of the evidence. See Daubert, 509 U.S. at 592 n.10; Johnson v.

Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012). The

court’s inquiry is flexible in that “[t]he relevance and reliability of expert testimony turn[] upon its nature and

the purpose for which its proponent offers it.” United

States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010) (citation omitted). To be relevant, “expert testimony [must]

‘assist the trier of fact to understand the evidence or to

determine a fact in issue.’” Pipitone v. Biomatrix, Inc.,

288 F.3d 239, 245 (5th Cir. 2002) (quoting Daubert, 509

U.S. at 591). “Relevance depends upon ‘whether [the expert’s] reasoning or methodology properly can be applied to the facts in issue.’” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007) (quoting Daubert, 509 U.S. at 593); see also Fed. R. Evid. 702(d) (requiring that an “expert has reliably applied the principles and methods to the facts of the case”).

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“Reliability is determined by assessing ‘whether the

reasoning or methodology underlying the testimony is

scientifically valid.’” Knight, 482 F.3d at 352 (quoting

Daubert, 509 U.S. at 592-93); see also Fed. R. Evid.

702(c) (requiring that “testimony [be] the product of reliable principles and methods”). “The reliability analysis

applies to all aspects of an expert’s testimony: the methodology, the facts underlying the expert’s opinion, the

link between the facts and the conclusion, et alia.”

Knight, 482 F.3d at 355 (citation and internal quotation

marks omitted). “The reliability prong mandates that

expert opinion be grounded in the methods and procedures of science and . . . be more than unsupported speculation or subjective belief,” Johnson, 685 F.3d at 459 (internal quotation marks omitted); however, “there is no

requirement that an expert derive his opinion from

firsthand knowledge or observation.” Deshotel v. WalMart La., L.L.C., 850 F.3d 742, 746 (5th Cir. 2017) (internal quotation marks omitted).

“The focus, of course, must be solely on principles

and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595; Williams v. Manitowoc

Cranes, L.L.C., 898 F.3d 607, 623 (5th Cir. 2018) (quoting

Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir.

2004)). “The proponent need not prove to the judge that

the expert’s testimony is correct, but [it] must prove by

a preponderance of the evidence that the testimony is

reliable.” Johnson, 685 F.3d at 459 (internal quotation

marks omitted). On the other hand, if “there is simply

too great an analytical gap between the [basis for the

expert opinion] and the opinion proffered,” the court

may exclude the testimony as unreliable, as “nothing in

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either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is

connected to existing data only by the ipse dixit of the

expert.” General Elec. Co. v. Joiner, 522 U.S. 136, 146

(1997).

“[C]ourts consider the following non-exclusive list of

factors when conducting the reliability inquiry: (1)

whether the theory or technique has been tested; (2)

whether the theory or technique has been subjected to

peer review and publication; (3) the known or potential

rate of error of the method used and the existence and

maintenance of standards controlling the technique’s operation; and (4) whether the theory or method has been

generally accepted by the scientific community.” Johnson, 685 F.3d at 459 (internal quotation marks omitted).

These factors, however, are not definitive or exhaustive.

The reliability inquiry is flexible, and the district court

conducting the Daubert analysis has discretion in determining which factors are most germane in light of the

nature of the issue, the particular expertise, and the subject of the expert’s testimony. Daubert, 509 U.S. at 59395; Kumho Tire Co., 526 U.S. at 142.

The Advisory Committee’s Notes to Rule 702 contemplate that expert testimony may be based on experience, training, or both:

Nothing in this amendment is intended to suggest that experience alone—or experience in conjunction with other knowledge, skill, training or

education—may not provide a sufficient foundation for expert testimony. To the contrary, the

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text of Rule 702 expressly contemplates that an

expert may be qualified on the basis of experience. In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable

expert testimony. See, e.g., United States v.

Jones, 107 F.3d 1147 (6th Cir. 1997) (no abuse of

discretion in admitting the testimony of a handwriting examiner who had years of practical experience and extensive training, and who explained his methodology in detail); Tassin v.

Sears Roebuck, 946 F. Supp. 1241, 1248 (M.D. La.

1996) (design engineer’s testimony can be admissible when the expert’s opinions “are based on

facts, a reasonable investigation, and traditional

technical/mechanical expertise, and he provides a

reasonable link between the information and procedures he uses and the conclusions he reaches”).

See also Kumho Tire Co. v. Carmichael, 119 S. Ct.

1167, 1178 (1999) (stating that “no one denies that

an expert might draw a conclusion from a set of

observations based on extensive and specialized

experience.”).

Fed. R. Evid. 702 Advisory Committee’s Notes (2000

Amendments).

The Advisory Committee’s Notes to Rule 702 further

explain: “If the witness is relying solely or primarily on

experience, then [he or she] must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that

experience is reliably applied to the facts.” Id. This is

because the “trial court’s gatekeeping function requires

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more than simply taking the expert’s word for it” that

the claimed basis supports the opinion. Id. (citation and

internal quotation marks omitted); Pipitone, 288 F.3d at

245-47 (finding expert testimony reliable when the expert explained how his experience in the field led him to

opine that an absence of contamination of some samples

did not undermine his conclusion that the plaintiff’s infection came from the same drug). Overall, the trial

court must strive to ensure that the expert, “whether

basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co., 526 U.S. at

152. As stated earlier, the relevance and reliability of expert testimony turn upon its nature and the purpose for

which its proponent offers the testimony. See, e.g.,

Hodges v. Mack Trucks, Inc., 474 F.3d 188, 195 (5th Cir.

2006) (“Of course, whether a proposed expert should be

permitted to testify is case, and fact, specific.”) (citing

Kumho Tire, 526 U.S. at 150-51).

b. Analysis

The court does not find that Mr. Gill is qualified to

offer opinions under Rule 702 on police and tactical procedures. Mr. Gill acknowledges that he has some familiarity with how SWAT teams operate. Some familiarity

alone, however, is enough to disqualify him as an expert

under Rule 702 because definitionally, having some familiarity does not meet the test under Rule 702. To qualify under Rule 702, a person has to have scientific or

some otherwise specialized knowledge of the subject

matter of which he or she intends to testify. See Fed. R.

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Evid. 702. Nowhere in his CV or his report does Mr. Gill

state he has specialized training, skill, or knowledge in

police practices, particularly in areas of SWAT operations. Moreover, the court agrees with the magistrate

judge that his opinions are conclusory, and that Mr. Gill

fails to support his contentions. See Pipitone, 288 F.3d at

245-47 (5th Cir. 2002) (finding expert testimony reliable

when the expert explained how his experience in the

field led him to his opinions). Accordingly, the court determines that Plaintiffs have not met their burden of

showing that Mr. Gill’s expert testimony is reliable under Rule 702. In light of the standard enunciated by the

court for the admission of expert testimony and in light

of the court’s findings, Mr. Gill is not qualified to testify

as to tactical procedures with respect to execution of

search warrants. Further, his opinions are neither relevant nor reliable. For these reasons, the court strikes

his purported testimony and will not consider it in ruling

on the issues presented.

B. Qualified Immunity

1. Legal Standard for Qualified Immunity

Government officials who perform discretionary

functions are entitled to the defense of qualified immunity, which shields them from suit as well as liability for

civil damages, if 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). A defendant official

must affirmatively plead the defense of qualified immunity. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Named

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Defendants asserted this defense in their motion for

summary judgment.

In deciding a dispositive motion that raises the defense of qualified immunity, the Supreme Court initially

set forth a mandatory two-part inquiry for determining

whether a government official was entitled to qualified

immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001). Under Saucier, a court must determine first whether the

facts alleged or shown are sufficient to make out a violation of a constitutional or federal statutory right. If the

record sets forth or establishes no violation, no further

inquiry is necessary. On the other hand, if the plaintiff

sufficiently pleads or establishes that a violation could

be made out, the court must determine whether the

right at issue was clearly established at the time of the

government official’s alleged misconduct. Id. The Court

relaxed this mandatory sequence in Pearson v. Callahan,

555 U.S. 223 (2009), and stated, “[W]hile the sequence

set forth [in Saucier] is often appropriate, it should no

longer be regarded as mandatory,” and judges “should

be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. at 236. The

second prong of the test “is better understood as two

separate inquiries: whether the allegedly violated constitutional right[] [was] clearly established at the time

of the incident; and if so, whether the conduct of the defendant[] [official] was objectively unreasonable in light

of that then clearly established law.” Hanks v. Rogers,

853 F.3d 738, 744 (5th Cir. 2017) (quoting Tarver v. City

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of Edna, 410 F.3d 745, 750 (5th Cir. 2005) (internal quotation marks and citations omitted)).

Ordinarily, one who pleads an affirmative defense

must establish his entitlement to such defense. In the

context of qualified immunity, however, this burden varies from the norm. In this circuit, the rule is as follows:

Where . . . [a] defendant pleads qualified immunity and shows he is a governmental official whose

position involves the exercise of discretion, the

plaintiff then has the burden to rebut this defense

by establishing that the official’s allegedly

wrongful conduct violated clearly established

law. We do not require that an official demonstrate that he did not violate clearly established

federal rights; our precedent places that burden

upon plaintiffs.

Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997) (internal quotations and citations omitted); see also Brown

v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).

A right is “clearly established” only when its contours are sufficiently clear that a reasonable public official would have realized or understood that his conduct

violated the right in issue, not merely that the conduct

was otherwise improper. See Anderson v. Creighton,

483 U.S. 635, 640 (1987); Foster v. City of Lake Jackson,

28 F.3d 425, 429 (5th Cir. 1994). Thus, the right must not

only be clearly established in an abstract sense but in a

more particularized sense so that it is apparent to the

official that his actions [what he is doing] are unlawful in

light of pre-existing law. Anderson v. Creighton, 483

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U.S. at 640; Stefanoff v. Hays County, 154 F.3d 523, 525

(5th Cir. 1998); and Pierce v. Smith, 117 F.3d at 871.

In Anderson, 483 U.S. at 641, the Court refined the

qualified immunity standard and held that the relevant

question is whether a reasonable officer or public official

could have believed that his conduct was lawful in light

of clearly established law and the information possessed

by him. If public officials or officers of “reasonable competence could disagree [on whether the conduct is legal],

immunity should be recognized.” Malley v. Briggs, 475

U.S. 335, 341 (1986); Gibson v. Rich, 44 F.3d 274, 277 (5th

Cir. 1995) (citing Babb v. Dorman, 33 F.3d 472, 477 (5th

Cir. 1994)). Qualified immunity is designed to protect

from civil liability “all but the plainly incompetent or

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

475 U.S. at 341. Conversely, an official’s conduct is not

protected by qualified immunity if, in light of clearly established pre-existing law, it was apparent the conduct,

when undertaken, would be a violation of the right at issue. Foster, 28 F.3d at 429. To preclude qualified immunity, it is not necessary for a plaintiff to establish that “the

[specific] action in question has previously been held unlawful.” Anderson, 483 U.S. at 640. For an official, however, to surrender qualified immunity, “pre-existing law

must dictate, that is, truly compel (not just suggest or

allow or raise a question about), the conclusion for every

like-situated, reasonable government agent that what

the defendant is doing violates federal law in the circumstances.” Pierce v. Smith, 117 F.3d at 882 (emphasis in

original and citation omitted); and Stefanoff v. Hays

County, 154 F.3d at 525. Stated differently, while the law

does not require a case directly on point, “existing

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precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. Al-Kidd, 563

U.S. 731, 741 (2011) (citations omitted).

In analyzing qualified immunity claims, the Supreme

Court has “repeatedly told courts . . . to not define

clearly established law at a high level of generality.”

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citation

omitted). Pursuant to Mullenix, courts must consider

“whether the violative nature of particular conduct is

clearly established” and must undertake this inquiry “in

light of the specific context of the case, not as a broad

general proposition.” Id. (citations and internal quotations marks omitted).

2. Analysis

The court agrees with the magistrate judge’s analysis in the Report regarding qualified immunity and its

application to the Named Defendants, except for the

analysis of the second prong of the test of qualified immunity with respect to whether Defendant Lt. Mike

Lewis (“Commander”) acted objectively reasonable in

his efforts to identify the correct house. The record in

this case contains ample evidence for a reasonable jury

to conclude that Commander acted objectively unreasonable prior to the execution of the search warrant.

The court first focuses on the facts relevant to Commander’s efforts to identify the correct home. In support

of his efforts, Commander provides the following:

I was put in contact with Ruben Felan via

Tommy Hale. Ruben is an agent with the Drug

Enforcement Agency and he gave me some basic

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information on what they had [regarding the request for assistant in executing a search warrant

at a house located at 573 8th St., Lancaster,

Texas]

....

I requested additional information from their

team, including pictures of the target location,

whether or not the location was fortified,

whether or not it appeared to have surveillance

equipment, whether or not children were present, and whether or not there were any exterior

indicators on the property that children may be

present.

....

DEA agents provided me with pictures of the

front of the residence, and advised me they currently had surveillance established at the location. They believed there were 4-6 adult males

currently occupying the target location. They advised they had never seen any children coming or

going from the residence during their entire investigation into the target location. They saw no

fortification, no surveillance cameras, and no evidence on the exterior of the property that indicated children would be present.

....

I was able to gather information on the target location through the Dallas Central Appraisal

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District website, including the square footage

and year built.

....

Agents also provided real-time intelligence that

surveillance officers at the scene reported a truck

pulling a white box trailer just pulled up in front

of the target location and stopped.

Agents provided me with a copy of their search

warrant and I confirmed the details of the warrant including the address of the target location

and that it included the outbuilding. The warrant

included a no-knock authorization by the signing

judge.

....

Upon arrival to the area, SWAT . . . made an approach toward the residence with the truck and

box trailer in front of it.

Defs.’ App. 0015-17. Commander states that he was provided photographs of the target location by the DEA;

however, he did not include any of those particular photographs as part of the record. See id. The summary

judgment evidence, however, includes copies of black

and white photographs of the target home and Plaintiffs’

residence that were taken after the execution of the

search warrant. See Defs.’ App. 0026-27. This is of major

significance because the photograph of Plaintiffs’ residence included an attachment to Plaintiffs’ residence

that was markedly different from the target residence,

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which the court discusses below, that should have been

readily apparent to any reasonably competent officer.

The record further reflects that the truck pulling a

white box trailer was parked in front of 583 8th Street.

Defs.’ App. 0002. Based upon information provided by

the DEA, the SWAT Team began approaching the home.

Id. On approach, Commander noticed that the residence

did not appear to be the one in the photographs provided

by the DEA, and he then directed his team to the house

located to the left of them—Plaintiffs’ residence located

at 593 8th Street. Id. at 0018. Shortly after SWAT Team

members entered Plaintiffs’ residence, “SWAT Team officers began yelling out, ‘Wrong house!’” Id. at 0002. The

SWAT Team thereafter left Plaintiffs’ residence and

proceeded to the correct target location—573 8th

Street. Id. Instructive to the court’s analysis are the

Fifth Circuit’s reasoning in Rogers v. Hooper, 271 F.

App’x 431 (5th Cir. 2008) (unpublished table decision),

and the Eleventh Circuit’s analysis in Hartsfield v.

Lemacks, 50 F.3d 950 (11th Cir. 1995), which was relied

on by the Fifth Circuit in Rogers.

In Rogers, the Fifth Circuit affirmed the lower

court’s entry of summary judgment based on qualified

immunity after finding the actions of two officers, who

guided the team serving a warrant on a wrong location,

to be “consistent with a reasonable effort to ascertain

and identify the place intended to be searched.” Rogers,

271 F. App’x at 435 (quoting Maryland v. Garrison, 480

U.S. 79, 87 (1987) (internal quotations omitted). The officers performed various actions prior to executing the

warrant during the night: obtained the search warrant;

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drove by the target house; and identified a vehicle

parked in front of the target residence to serve as a cue

to the officers. Id. Despite these precautions, the wrong

residence was entered into before the officer could inform the team they were at the wrong location. Id. at

432. This court agrees that the officers in Rogers were

entitled to qualified immunity because their pre-execution efforts were reasonable. The court cannot say the

same for Commander, as his efforts and lack of alertness

do not rise to the level of the two officers in Rogers.

The Eleventh Circuit in Hartsfield had a different issue. 50 F.3d 950. There, the leading officer, who obtained

the search warrant, led his team to execute the warrant

on the wrong residence during daylight. Id. at 952. The

Eleventh Circuit reversed the lower court’s granting of

summary judgment with respect to the lead officer being entitled to qualified immunity because “he did not

check to make sure that he was leading the other officers

to the correct address, let alone perform any precautionary measures.” The Eleventh Circuit goes on to state:

As it is uncontroverted that the numbers on the

houses are clearly marked, and that the raid took

place during daylight hours, simply checking the

warrant would have avoided the mistaken entry.

Moreover, evidence before the court showed that

the houses were located on different parts of the

street, separated by at least one other residence,

and that their appearances were distinguishable.

Because [the commanding officer] did nothing to

make sure that he was leading the other officers

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to the correct residence, we conclude that the district court erred in holding that he was protected

by qualified immunity.

Id. at 955.

Here, Commander took more precautionary

measures than the defendant in Hartsfield, but he did

not take the same level of competent measures outlined

in Rogers. The undisputed evidence before the court reveals the SWAT Team was approaching 583 8th Street—

the wrong address—when Commander directed them to

593 8th Street—also the wrong address. Prior to directing officers to the wrong home, Commander (1) reviewed the search warrant; (2) conducted additional

searches on the target residence through the Dallas

Central Appraisal District website; (3) ran a computerized criminal history search of the occupant of the target

residence; (4) debriefed with DEA agents twice; (5) was

provided with “real-time intelligence that surveillance

officers at the scene reported a truck pulling a white box

trailer just pulled up in front of the target location and

stopped;” and (6) observed the home and took note of the

front windows, driveway, and the numbers on the front

of the home in an attempt to confirm the residence as

being the target location. Defs.’ App. at 0015-24. The

court finds that while Commander took some precautionary measures to lead the SWAT team to the correct

house, such measures were not sufficient to be “consistent with [] reasonable effort[s] to ascertain and identify the place intended to be searched.” Rogers, 271 F.

App’x at 435.

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First, the undisputed evidence before the court reveals the search warrant noted that “the numbers ‘573’

[were] painted on the curb directly in front of the [target] residence and [also] affixed to a wooden post that

supports the front porch.” Defs.’ App. 0011. Simply

checking the warrant and looking down at the curb

would have avoided Commander’s mistaken order to enter the wrong house. Second, the search warrant further

noted that the target residence “is the thirteenth residence west from Elm Street.” Id. at 0010. Commander,

prior to the execution of the warrant, also had the option

to count the houses as he and his team proceeded down

8th Street. The record does not reveal that Commander

took any of these precautionary measures.

Third, while there are a few similarities between the

target house and Plaintiffs’ residence, the undisputed

evidence shows a glaring difference between Plaintiffs’

residence and the target location. Most notable is the uncontroverted evidence that Plaintiffs’ residence had two

wheelchair ramps in front of it, complete with handrails,

and the target location did not. See Doc. at 175; and compare Defs.’ App. 0027 with Defs.’ App. 0026. This handicap structure had ramps projecting from the front door

of the house towards the sidewalk in the front and to the

side towards the driveway. Defs.’ App. 00027. Commander does not address, or even mention in passing,

that Plaintiffs’ residence had a protruding handicap

ramp when he observed the home before directing his

team to execute the search warrant on it. To breach the

front door of Plaintiffs’ house, the entry team necessarily had to navigate those ramps, and Commander,

who remained outside of the house, offers no explanation

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Appendix C

why he did not see those ramps that his officers had to

use to reach the front door of Plaintiffs’ residence. The

presence of the ramps should have been a “dead giveaway” that Plaintiffs’ house was not the target location.

Even assuming this difference was less noticeable at

night, “because the search was to occur at night, the

chance for a mistake was greater and the need for precautions proportionately were increased.” Rogers, 271

F. App’x at 435. Additionally, the target residence and

Plaintiffs’ residence were separated by one other residence, which the SWAT team first approached before

being directed away by Commander. Id. at 0002.

Despite Commander’s efforts, the record does not reveal he performed the most basic precaution prior to executing the search warrant: driving by the target location or having a person under his command do so. Nothing is in the record that a drive-by was impossible or

would jeopardize officer safety. The court, for all of these

reasons, determines there is a genuine dispute of material fact regarding whether Commander made the necessary reasonable effort to identify the correct residence and whether his actions were “[in]consistent with

a reasonable effort to ascertain and identify the place intended to be searched.” Garrison, 480 U.S. at 88. A jury

could return a verdict in Commander’s favor; however,

this is a classic dispute regarding a material fact that

should proceed to the jury for final determination. A

jury, not this court, should determine whether Commander was plainly incompetent.

So that there is no misapprehension of the court’s

ruling, this is not a situation in which the court is

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Appendix C

applying 20/20 hindsight to a situation that went awry

or second-guessing what Commander did or failed to do

prior to the execution of the warrant. The court’s focus

is on what steps a reasonable police officer in his position

should have done prior to the execution of the search on

Plaintiffs’ residence. The court has included a number of

things that Commander easily could have reasonably

done or noticed. He was the person in charge of the tactical operation, and “the buck stopped” with him. The

failure to observe and follow some basic and fundamental steps regarding police procedure was a recipe for disaster. The pre-planning did not involve a tense, fastmoving, or a set of quickly-unfolding facts or circumstances. As stated before, this case presents a situation

for the jury to decide whether Commander was plainly

incompetent in the execution of the search warrant that

resulted in an unconstitutional search of Plaintiffs’ residence.

C. Discovery Requests

Plaintiffs also contend that they were denied opportunities to conduct discovery except for the deposition

of WPD Chief Goolsby, and the denial hampered their

ability to respond to the Motion and further prevents

them from identifying more John Does. See Doc. 192 at

2; Doc. 190. After the Motion was filed, Plaintiffs filed a

motion for discovery (Doc. 170) seeking permission to

serve specific interrogatories and requests for production, which sought the production of certain documents

and recordings, upon the Named Defendants in their individual capacities to assist their response to the Motion.

Named Defendants argue in their response that

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Appendix C

Plaintiffs have “obtained documents in this case by

sending multiple Open Records Requests to the City of

Waxahachie.” Doc. 174 at 2. They further argue that the

discovery sought is not narrowly tailored to the issue of

qualified immunity. Id. The magistrate judge held a

hearing on July 27, 2021, to discuss the pending motion

and ultimately denied Plaintiffs’ requested discovery relief but allowed the deposition of Chief Goolsby. See Doc.

177.

After reviewing the record, the court determines

that Plaintiffs were allowed to depose Chief Goolsby and

that they failed to identify what additional documents or

information they could not have obtained or requested

from Chief Goolsby or other public sources. Additionally, the court finds that the specific discovery sought to

be served upon Named Defendants by Plaintiffs were

not narrowly tailored to the issue of qualified immunity.

Moreover, Plaintiffs did not appeal or file any objections

within 14 days of the the magistrate’s ruling regarding

their efforts to seek additional discovery to this court.

See Fed. R. Civ. P. 72. Plaintiffs have therefore waived

these objections. Accordingly, to the extent Plaintiffs

raised an objection regarding their previous attempts to

obtain additional discovery, the court overrules such objection.

III.

Conclusion

Having considered the pleadings, Report, Objection,

file, and record in this case, and having conducted a de

novo review of that portion of the Report to which objection was made, the court, for the reasons explained,

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determines that the magistrate judge’s findings and conclusions in Sec. II and IV.A., are correct, and accepts

them as those of the court. Accordingly, the court overrules Named Defendants’ objection to Plaintiffs’ response, brief, and exhibits as non-compliant with the Local Rules; overrules as moot Defendants’ objection to

Plaintiffs’ use of pleadings to serve as summary judgment evidence; grants Named Defendants’ motion to

exclude and strike Plaintiffs’ expert testimony; and

grants Named Defendants’ Motion for Summary Judgment (Doc. 167) as to Plaintiffs’ claims against Brent

Dunn, O.T. Glidewell, James Lewis, James Taylor, and

Derek Behringer, and dismisses with prejudice the

Fourth Amendment violations against them. The court

also denies as moot Named Defendants’ Motion for

Summary Judgment (Doc. 167) on any Fourteenth

Amendment violation because Fourteenth Amendment

claims cannot be made when a person is seized or detained.

The court further determines that the magistrate

judge’s findings and conclusions in Sec.IV.B. are correct

as they relate to Andrew Gonzales, Derrick Young,

Brian Fuller, Dustin Koch, and Stephen Sanders; and accepts them as those of the court. Accordingly, the court

grants Named Defendants’ Motion for Summary Judgment (Doc. 167) as to Plaintiffs’ claims against Andrew

Gonzales, Derrick Young, Brian Fuller, Dustin Koch,

and Stephen Sanders and dismisses with prejudice the

Fourth Amendment violations against them.

The court rejects the magistrate judge’s findings

and conclusions in Sec. IV.B. relating to Defendant Lt.

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Appendix C

Mike Lewis. Accordingly, the court denies Named Defendants’ Motion for Summary Judgment (Doc. 167) as

to Plaintiffs’ claims against Defendant Lt. Mike Lewis.

Further, the court considered the magistrate judge’s

order on February 28, 2022, requiring Plaintiffs to provide proof that they have served the John Does by

March 14, 2022, or show cause in writing why service

cannot be made on them (Doc. 189); Plaintiffs’ Objection

stating additional discovery is needed to identify the

John Does (Doc. 190); and Named Defendants’ Response

to Plaintiffs’ Objection (Doc. 191). After careful review,

the court finds that Plaintiffs failed to show good cause

why the John Does cannot be identified and why service

cannot then be made on them.

Accordingly, pursuant to Federal Rule of Civil Procedure 4(m), the court dismisses without prejudice

Plaintiffs’ claims against the remaining John Doe Defendants, which the court shows to be John Does 1-9. 2

The only claim that remains for trial or other resolution

is Plaintiffs’ claim for a Fourth Amendment violation

against Defendant Lt. Mike Lewis.

It is so ordered this 31st day of March, 2022.

/s/ Sam A. Lindsay

Sam A. Lindsay

United States District

Judge

The court previously dismissed with prejudice Plaintiffs’ claims

against John Does 10-20 in its order dated April 21, 2021 (Doc. 160).

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Appendix D

Findings, Conclusions, and Recommendation

of the United States Magistrate Judge,

United States District Court for the

Northern District of Texas

February 28, 2022

59a

Appendix D

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KAREN JIMERSON,

et al.,

Plaintiffs,

LT. MIKE LEWIS, et

al.,

Defendants.

Civil Action No. 3:20CV-2826-L-BH

Referred to U.S.

Magistrate Judge 1

FINDINGS, CONCLUSIONS, AND

RECOMMENDATIONS

Defendants’ Motion for Summary Judgment, filed

June 23, 2021 (doc. 167), should be GRANTED in part,

and this action against them should be dismissed with

prejudice.

BACKGROUND

This civil rights action arises from the execution of a

“no knock” search warrant at the wrong address by the

Waxahachie Police Department (WPD). Karen Jimerson

(Mother) and James Parks (Father), individually and as

By Standing Order of Reference dated April 20, 2021 (doc.

159), this case was referred for full case management.

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Appendix D

next friend of their young sons, Jyden Jimerson and Xavien Parks (Sons), and Mother as next friend of her minor daughter, Jasamea Jimerson (Daughter), (collectively Plaintiffs), sue the members of the WPD’s SWAT

team who executed the warrant, including its commander, Lieutenant Mike Lewis (Commander), team

leader Stephen Sanders (Leader), canine officer Derek

Behringer (K9 Officer), and officers Brian Fuller, Andrew Gonzales, Derrick Young, Brent Dunn, Dustin

Koch, O.T. Glidewell, James Lewis, and James Taylor

(collectively Defendants), in their individual capacities.

(See doc. 16 at 41.) 2 Plaintiffs seek compensatory and punitive damages, declaratory relief, attorney’s fees, and

costs. (Id. at 45-48.)

A. Factual Background

On March 27, 2019, at approximately 7:15 p.m., an

agent with the Drug Enforcement Agency’s (DEA) Dallas Office contacted Commander and requested the

WPD SWAT team’s assistance with the execution of a

search warrant at a suspected methamphetamine “stash

house” located at 573 8th Street, Lancaster, Texas (Target House). (doc. 169-1 at 1, 15.) The agent stated that

the DEA had established surveillance at the location,

and he provided Commander pictures of the front of Target House. (Id.) Commander’s after-incident report

states that DEA agents did not see any fortification or

surveillance cameras at the property, or any evidence indicating the presence of children. (Id. at 15.) They

Citations to the record refer to the CM/ECF system page number

at the top of each page rather than the page numbers at the bottom

of each filing.

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Appendix D

believed that large quantities of drugs were being kept

at Target House, that there were four to six adult males

on the property, and that the property had a “deeply extending backyard.” (Id. at 17.) Commander obtained information about the property’s primary residence, detached garage, and yard from the Dallas County Central

Appraisal District’s website. (Id. at 16.) Based on the information from the DEA, Commander determined that

SWAT deployment was appropriate and obtained approval from the Chief of the WPD to activate the SWAT

team. (Id.)

Commander met with members of the SWAT team

at WPD headquarters and briefed them on the intelligence from the DEA. (Id. at 17.) They developed a plan

for a six-member team consisting of Fuller, Gonzales,

Young, Dunn, Koch, and Leader (Entry Team) to deploy

a flashbang diversionary device in the front yard and

then enter the primary residence. (Id.) As an additional

distractionary measure, and to provide cover for the

other Entry Team members, Leader was tasked with

breaking the front windows until entry was made. (Id.)

A three-person team consisting of Glidewell, Lewis, and

Taylor (Perimeter Team) would secure the detached

garage and backyard and detain any people found outside the target location with “zip-tie style cuffs” before

deploying a flashbang diversionary device in the backyard. (Id.) K9 Officer and officers with the Lancaster Police Department (LPD) were to stage in the front driveway until the flashbangs were deployed, and then proceed to the backyard to establish a rear perimeter. (Id.)

Commander was to remain outside in a “command and

control status.” (Id.)

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Appendix D

Defendants gathered and prepared their equipment

and proceeded to LPD headquarters for a final briefing

with the DEA. (Id.) Commander received a copy of the

search warrant; he confirmed that the warrant included

no-knock authorization, and that the address of Target

House was “573 8th Street.” (Id.) “DEA agents provided

real-time intelligence that surveillance officers at the

scene reported a truck pulling a white box trailer had

pulled up and stopped in front of the target location.”

(Id. at 1.) It was decided that an officer with LPD (LPD

Officer) would lead the SWAT team to the location and

“stop his vehicle about a house before the target location

so SWAT members could make an approach on foot.” (Id.

at 2, 18.)

After the final briefing, LPD Officer drove to the target location, followed by the SWAT team, Commander,

K9 Officer, and DEA agents in separate vehicles. (Id.)

Upon arrival, the SWAT team exited the vehicle, and

LPD Officer pointed the team to the house with the

truck and trailer in front of it, which was actually “583

8th Street”. (See id.) As the team approached it, Commander noticed that it did not look like the house in the

DEA’s photos. (Id.) He believed that Plaintiffs’ house,

which was to the left of it, looked like the house in the

photos, and that the house number on it was “573”, although the reflection from the porch light made it difficult to read. (Id.) Plaintiffs’ house address was “593 8th

Street”. (Id.) Commander notified the SWAT team that

they were approaching the wrong house and directed

them to Plaintiffs’ house instead. (Id.)

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Appendix D

Entry Team ran to the front of Plaintiffs’ house, a

flashbang was deployed in the front yard, and Leader

began breaking the front windows using a “break-andrake” technique. (Id. at 18, 46-47.) After Gonzales,

Fuller, and Young breached the front door and entered

the house, they “began a protective sweep, checking for

occupants.” (Id. at 36, 38, 40.) They encountered two females and ordered them to get on the ground, and both

complied. (Id.) They then encountered an adult male, but

before they could instruct him to get on the ground, they

heard several team members yelling “Wrong house!”,

and they left Plaintiffs’ house. (Id.) They estimate they

were in Plaintiffs’ house “no more than 30 seconds.” (Id.

at 37, 39, 41.) According to Koch, he entered Plaintiffs’

house after the initial entry but only made it to the hallway when he heard “Wrong house!”; he then left the

house. (Id. at 42-43.) According to Leader, he followed

Entry Team to the front of the house but did not enter

with the other officers. (Id. at 46-47.) After he broke out

the front windows, he heard someone yell that it was the

wrong house, and he proceeded with Entry Team to Target House. (Id.)

According to Plaintiffs, at the time of entry, Mother

was taking a bath, Daughter was in bed in her room, and

Father was putting Sons to bed in another bedroom.

(doc. 183 at 22, 26-27.) Police officers met Mother in the

hallway near the bathroom and “made [her] lay down on

the floor” “for at least 15 minutes.” (Id. at 33, 35.) She

was undressed from the waist down, but the officers did

not allow her to put on clothes. (Id.) The officers went

into Daughter’s room, grabbed her from her bed, and

threw her down on the glass-covered floor, injuring her

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Appendix D

knee. (Id. at 22.) They zip-tied her hands behind her back

and made her stay on the ground for “more than 20

minutes.” (Id.) They searched her room without her permission and made a mess tossing things around her

room. (Id.) The officers entered the other bedroom with

Father and Sons, made them leave the bedroom, and

then searched the bedroom. (Id. at 27.) Pieces of glass

from the broken windows got into Sons’ eyes. (Id.) Officers roamed around the house, moved some things

around, and searched the rooms without their permission. (Id. at 22, 27-28, 33-35.)

According to a neighbor who lived across the street

from Plaintiffs, she looked out her window after hearing

a loud “boom.” (Id. at 18.) She saw the front door of

Plaintiffs’ house “busted open” and officers walking

around the yard with “A-K’s.” (Id.) Twenty minutes after the boom, she approached an officer outside of Plaintiffs’ house and obtained permission to enter and check

on the children. (Id.) There was “broken glass all over

the house,” and Mother was sitting on a sofa “with glass

on her shoulders and arms”, “bleeding from cuts that

were on her body.” (Id. at 18-19.) When she left five

minutes later, “police officers” were still in the house.

(Id. at 19.)

After the warrant was executed on Target House,

Commander returned to Plaintiffs’ house, “where several DEA agents were checking on [their] welfare and

making arrangements for an after-hours glass company

to make repairs to the damaged windows and door.”

(doc. 169-1 at 2.) He asked Plaintiffs if they required

medical attention, which they declined. (Id. at 3, 19.) Ten

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Appendix D

minutes later, Mother told him that her side was hurting, and he called for an ambulance at 11:28 p.m. (Id.)

According to an ambulance report, the ambulance arrived at 11:36 p.m., and departed for the hospital with

Mother and Daughter at 11:50 p.m. (doc. 183 at 52.) Commander avers that while he was in their home, Plaintiffs

never asked him to leave. (doc. 169-1 at 3.) According to

the after-incident report, members of the SWAT team

“were cleared from scene security” at 12:45 a.m., and

Commander “cleared the scene” at 1:30 a.m. (Id. at 1920.)

A WPD internal investigation of the incident found

that “reasonable and normal protocol was completely

overlooked.” (doc. 183 at 16, 166-68, 173-74, 190.)

B. Procedural History

On September 11, 2020, Plaintiffs sued Commander

and twenty John Doe defendants in their individual capacities under 42 U.S.C. § 1983, alleging violations of

their Fourth Amendment rights, 3 as well as state law

tort claims for assault, negligence per se, gross negligence, criminal trespass, criminal assault, aggravated

assault, and official oppression. 4 (See doc. 1 at 2, 35.)

Despite references to the Fourteenth Amendment, the first

amended complaint does not appear to assert a separate [sic] under

it, but to only reference the fact that the Fourth Amendment’s protections against wrongful search and seizure were made applicable

to the actions of state actors through the Fourteenth Amendment.

(doc. 16 at 16 n.8.)

Although the First Amendment is also mentioned, there are no

allegations of First Amendment violations. (See doc. 16 at 41.)

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Appendix D

After obtaining leave, they filed their first amended

complaint on December 15, 2020, reasserting their federal and state law claims, and naming Defendants in

place of the John Doe defendants. 5 (See docs. 14; 15; 16

at 2, 41-42.) On April 21, 2021, Plaintiffs’ state law tort

claims against Defendants in their individual capacities

were dismissed with prejudice under § 101.106(f) of the

Texas Tort Claims Act (TTCA). (See doc. 160.)

On June 23, 2021, Defendants moved for summary

judgment on the basis of qualified immunity. (See doc.

167.) Plaintiffs responded on August 26, 2021, and Defendants replied on September 9, 2021. (See docs. 181183, 187.)

II.

DEFENDANTS’ OBJECTIONS

Defendants object to Plaintiffs’ response, brief, and

exhibits (See doc. 187 at 6-12.)

A. Local Rules

Defendants object to Plaintiffs’ response, brief, and

exhibits as non-compliant with the Local Rules. (See

doc. 187 at 5-6.)

Courts have discretion to decline to strike filings,

even when they violate the Local Rules. See, e.g., Green

v. JPMorgan Chase Bank, N.A., No. 3:11-CV-1498-N,

2013 WL 11609925, at *2 (N.D. Tex. Aug. 16, 2013) (“The

Court in its discretion declines to strike the appendix in

Plaintiffs also sued LPD Officer, but he was voluntarily dismissed

with prejudice by joint agreed stipulation on March 11, 2021. (doc.

153.)

67a

Appendix D

this instance, but it advises [the defendant] and its counsel to abide by the Local Rules in future filings.”); Graham v. Dallas Indep. Sch. Dist., No. 3:04-CV-2461-B,

2006 WL 2468715, at *4 (N.D. Tex. Aug. 24, 2006) (“Under ordinary circumstances, the court might overlook

these untimely filings and consider plaintiff's summary

judgment response and evidence in the interests of justice.”). Defendants’ objections are OVERRULED.

Plaintiffs’ exhibits will be considered, but only where

they have provided specific citations to indicate the portions of the documents relied upon. See City of Clinton

v. Pilgrim’s Pride Corp., 654 F. Supp. 2d 536, 541 (N.D.

Tex. Sept. 14, 2009) (declining to strike a party’s appendix for violations of the Local Rules, but limiting consideration of its appendix).

B. Evidence

Defendants also object and move to strike some of

Plaintiffs’ summary judgment evidence on grounds that

it is misleading, constitutes inadmissible hearsay, and is

not proper summary judgment evidence. (See doc. 187

at 6-9.) Even if considered, this evidence does not affect

the disposition of the pending motion for summary judgment, so Defendants’ objections to this evidence are

OVERRULED as moot. See Continental Casualty Co.

v. St. Paul Fire & Marine Ins. Co., 2006 WL 984690, at

*1 n. 6 (N.D. Tex. Apr. 14, 2006) (overruling as moot objections to evidence that was not considered by the court

in deciding motion for summary judgment).

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Appendix D

C. Expert’s Declaration

Defendants also object and move to strike Plaintiffs’

expert testimony as inadmissible under Rule 702. (See

doc. 187 at 9-12.)

In Daubert v. Merrell Dow Pharmaceuticals, 509

U.S. 579, 597-98 (1993), the Supreme Court acknowledged that Federal Rule of Evidence 702 serves as the

proper standard for determining the admissibility of expert testimony. In fact, it was amended to incorporate

the principles first articulated by the Supreme Court in

Daubert, as well as those enunciated in subsequent

cases applying Daubert. See FED. R. EVID. 702 Advisory Committee Notes. Rule 702 now provides that:

A witness who is qualified as an expert by

knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other

specialized knowledge will help the trier of

fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based upon sufficient

facts or data;

principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

FED. R. EVID. 702. Under this rule, the main issue is

whether a particular expert has “sufficient specialized

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Appendix D

knowledge to assist the jurors in deciding the particular

issues in this case.” Kumho Tire Co. v. Carmichael, 526

U.S. 137, 156 (1999) (citations omitted). A court has discretion to keep an expert witness from testifying if it

finds that the witness is not qualified to testify in a particular field or on a given subject. Wilson v. Woods, 163

F.3d 935, 937 (5th Cir. 1999).

The key factors in evaluating expert testimony are

relevance and reliability. Daubert, 509 U.S. at 589. The

burden is on the proponent of the expert testimony to

establish its admissibility by a preponderance of the evidence. Id. at 592 n.10; see FED. R. EVID. 104(a). As

stated by this court, relevance requires that expert testimony “assist the trier of fact to understand the evidence or to determine a fact in issue[,]” and it depends

on “whether [the expert’s] reasoning or methodology

properly can be applied to the facts in issue.” State Au-

tomobile Mutual Insurance Company v. Freehold Management, Inc., No. 3:16-CV-2255-L, 2019 WL 1436659, at

*4 (N.D. Tex. Mar. 31, 2019) (internal quotations omitted) (quoting Pipitone v. Biomatrix, Inc., 288 F.3d 239,

245 (5th Cir. 2002) and Knight v. Kirby Inland Marine

Inc., 482 F.3d 347, 352 (5th Cir. 2007)). Reliability turns

on “whether the reasoning or methodology underlying

the testimony is scientifically valid.” Id. (internal quotations omitted) (quoting Knight, 482 F.3d at 352).

“Daubert standards apply not merely at trial, but

also on summary judgment.” Gen. Star Indem. Co. v.

Sherry Brooke Revocable Trust, 2001 WL 34063890, at

*9 (W.D. Tex. Mar. 16, 2001); see also Kumho Tire Co.,

526 U.S. at 146 (affirming district court decision

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Appendix D

granting motion for summary judgment in light of its decision to exclude expert testimony pursuant to Daubert). To be considered on summary judgment, “an expert

affidavit must include materials on which the expert

based his opinion, as well as an indication of the reasoning process underlying the opinion.” Michaels v. Avitech,

Inc., 202 F.3d 746, 754 (5th Cir., 2000), cert. denied, 531

U.S. 926 (Oct. 10, 2000) (quoting Boyd v. State Farm Ins.

Companies, 158 F.3d 326, 331 (5th Cir. 1998). “Without

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).

Here, Plaintiffs’ expert states that he has “some familiarity with what S.W.A.T. TEAMS do” without explaining the basis of his familiarity or expertise. (See

doc. 183 at 64.) His opinion that all Defendants “improperly entered” Plaintiffs’ home is based on statements in

their motions to dismiss, which Plaintiffs characterize as

admissions. (See id. at 65-66; doc. 182 at 8; doc. 183 at 41,

43, 46, 48.) He also makes general statements regarding

how long all Defendants remained in Plaintiffs’ home,

but he does not discuss Defendants individually; he does

not explain how he reached his opinion that all Defendants remained in Plaintiffs’ home for a specific amount

of time. (See id. at 66.) Ultimately, he agrees with the

outcome of the Chief’s internal investigation and concludes that Defendants were incompetent and unreasonable and violated Plaintiffs’ rights. (See id. at 70-71, 83.)

Plaintiff’s expert does not explain how he reached his

conclusions, only that he did reach them. He does not

identify the methodology he used, nor provide any

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Appendix D

explanation of the reasoning process utilized in reaching

his conclusions. He appears to be relying primarily, if not

exclusively, on experience to form his conclusions, but

fails to articulate how his experience led to his conclusions, why his experience is a sufficient basis for the conclusions reached, and how his experience is reliably applied to the facts of this case. See Kumho, 526 U.S. at 152

(stressing that the Daubert factors may be relevant to

the reliability of experience-based testimony and that

the same level of intellectual rigor that characterizes the

practice of an expert in the relevant field is employed

whether basing testimony upon professional studies or

personal experience). He does not explain the facts upon

which he relies to reach his conclusion that all Defendants entered Plaintiffs’ home and remained there for

some time.

Expert opinions that fail to set forth a discernable

methodology are conclusory and lack the requisite evidentiary reliability mandated by Rule 702. To be competent summary judgment evidence, an expert’s report

must contain some “indication of the reasoning process

underlying the opinion.” Boyd v. State Farm Ins. Cos.,

158 F.3d 326, 331 (5th Cir. 1998). Neither Daubert nor

the Federal Rules of Evidence “requires a district court

to admit opinion evidence which is connected to existing

data only by the ipse dixit of the expert.” General Electric Co. v. Joiner, 522 U.S. at 136, 146 (1997). And a “trial

judge ought to insist that a proffered expert bring to the

jury more than the lawyers can offer in argument.” In

re Air Crash Disaster at New Orleans, 795 F.2d 1230,

1233 (5th Cir.1986). Here, Plaintiffs’ expert testimony is

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Appendix D

no more than the inadmissible “it is so”. See Viterbo, 826

F.2d at 424.

Defendants’ motion to exclude and strike Plaintiffs’

expert testimony is GRANTED.

III.

SUMMARY JUDGMENT STANDARD IN

QUALIFIED IMMUNITY CASES

Summary judgment is appropriate when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c)(2). “[T]he substantive law will identify which facts

are material.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). A genuine issue of material fact exists “if

the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Id.

Typically, a movant makes a showing that there is no

genuine issue of material fact by informing the court of

the basis of its motion and by identifying the portions of

the record which reveal there are no genuine material

fact issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). In the context of § 1983 litigation, however, governmental employees asserting the defense of qualified

immunity in a motion for summary judgment need only

assert the defense in good faith. See Gates v. Tex. Dep’t

of Protective & Regulatory Servs., 537 F.3d 404, 419 (5th

Cir. 2008); Hathaway v. Bazany, 507 F.3d 312, 319 (5th

Cir. 2007). They have no burden to put forth evidence.

Beck v. Tex. State Bd. of Dental Exam’rs, 204 F.3d 629,

633-34 (5th Cir. 2000).

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Appendix D

The burden then shifts to the non-movant to show

that the defense does not apply. See Club Retro, L.L.C.

v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009); McClendon v.

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

banc) (per curiam). The non-movant must identify specific evidence in the record and show how it presents a

genuine issue of material fact for trial. Celotex, 477 U.S.

at 324; see also RSR Corp. v. Int’l Ins. Co., 612 F.3d 851,

857 (5th Cir. 2010). 6 Although courts view the evidence

in a light most favorable to the non-movant, Anderson,

477 U.S. at 255, “a party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.’” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.

2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (per curiam)). The non-movant must show that the evidence is sufficient to support

a resolution of the factual issue in his favor. Anderson,

477 U.S. at 249.

Even though Defendants have no burden to provide

evidence, they have submitted sworn declarations, the

search warrant, and the after-incident report. (See doc.

169-1.) They have carried their summary judgment

Rule 56 imposes no obligation for a court “to sift through the record

in search of evidence to support a party’s opposition to summary

judgment.” Adams v. Travelers Indem. Co., 465 F.3d 156, 164 (5th

Cir. 2006) (quoting Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458

(5th Cir.1998)). Parties must “identify specific evidence in the record” supporting challenged claims and “articulate the precise manner in which that evidence supports [those] claim[s].” Ragas, 136

F.3d at 458 (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.

1994)).

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Appendix D

burden by asserting the qualified immunity defense. See

Gates, 537 F.3d at 419. The burden now shifts to Plaintiffs to identify evidence in the record creating a genuine

issue of material fact regarding whether Defendants violated their constitutional rights, and whether the violation was objectively unreasonable under clearly established law at the time of the violation. See Zarnow v.

City of Wichita Falls, 500 F.3d 401, 407-08 (5th Cir. 2007).

IV.

QUALIFIED IMMUNITY

Defendants move for summary judgment on grounds

that they are protected from suit by qualified immunity.

(See doc. 168 at 12.)

Section 1983 “provides a federal cause of action for

the deprivation, under color of law, of a citizen’s ‘rights,

privileges, or immunities secured by the Constitution

and laws’ of the United States.” Livadas v. Bradshaw,

512 U.S. 107, 132 (1994). It “afford[s] redress for violations of federal statutes, as well as of constitutional

norms.” Id. To state a claim under § 1983, a plaintiff must

allege facts that show (1) he has been deprived of a right

secured by the Constitution and the laws of the United

States and (2) the deprivation occurred under color of

state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149,

155 (1978); Cornish v. Corr. Servs. Corp., 402 F.3d 545,

549 (5th Cir. 2005).

A governmental employee who is sued under § 1983

may assert the affirmative defense of qualified immunity. White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992).

Qualified immunity protects government officials performing discretionary functions from suit and liability

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Appendix D

for civil damages to the extent 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). The doctrine protects “all but the plainly incompetent or those

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

U.S. 335, 341 (1986). Because an official is entitled to immunity from suit, not merely from liability, immunity

questions should be resolved as early as possible in the

litigation. See Hunter v. Bryant, 502 U.S. 224, 227 (1991).

In deciding whether a defendant is entitled to qualified immunity, courts conduct a two-prong inquiry. Under the first prong, courts consider whether the facts alleged, taken in the light most favorable to the plaintiff,

show a violation of a constitutional right. Saucier v. Katz,

533 U.S. 194, 200 (2001), overruled in part by Pearson v.

Callahan, 555 U.S. 223 (2009). Under the second prong,

courts determine whether the violated constitutional

right was clearly established within the specific context

of the case. Id. at 201. “The relevant, dispositive inquiry

in determining whether a right is clearly established is

whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.” Id.

at 202. It is within the discretion of the court to decide

which of the two prongs to address first in light of the

circumstances particular to each case. Pearson, 555 U.S.

at 236; Lytle v. Bexar Cty., 560 F.3d 404, 409 (5th Cir.

2009). If the court answers both the constitutional violation and clearly established questions in the affirmative,

the officer is not entitled to qualified immunity. Lytle,

560 F.3d at 410.

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Appendix D

Constitutional Violation 7

Defendants contend that there is no credible evidence of a Fourth Amendment constitutional violation

and that they cannot overcome their entitlement to

qualified immunity. (See doc. 168 at 12.)

The Fourth Amendment protects the “right of the

people to be secure in their persons, houses, papers, and

effects against unreasonable searches and seizures.”

U.S. Const. IV. Generally, “[w]arrantless searches of a

person’s home are presumptively unreasonable unless

the person consents, or unless probable cause and exigent circumstances justify the search.” United States v.

Gomez–Moreno, 479 F.3d 350, 354 (5th Cir. 2007); see

Payton v. New York, 445 U.S. 573, 590 (1980) (“Absent

exigent circumstances, [a person’s] threshold may not

reasonably be crossed without a warrant.”). Even

though warrantless searches are “presumptively unreasonable,” “officers do not necessarily violate the Fourth

Amendment when they mistakenly execute a search

warrant on the wrong address.” Simmons v. City of

Paris, 378 F.3d 476, 479 (5th Cir. 2004) (citing Maryland

v. Garrison, 480 U.S. 79, 88 (1987)). As recognized by the

Supreme Court, officers are entitled to “some latitude

for honest mistakes” made “in the dangerous and

Defendants first move for summary judgment on Plaintiffs’ Fourteenth Amendment claim, arguing it fails as a matter of law. (See

doc. 168 at 11.) As noted, Plaintiffs do not appear to assert a separate Fourteenth Amendment claim, and they did not respond to Defendants’ argument. Because they have not asserted a Fourteenth

Amendment claim, Defendants’ motion for summary judgment on

this claim should be DENIED as moot.

77a

Appendix D

difficult process of making arrests and executing search

warrants.” Garrison, 480 U.S. at 87. When officers attempting to execute a valid search warrant enter the

wrong residence, they do not violate the Fourth Amendment if their conduct is “consistent

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