Cordell Davis v. City of Fort Worth , 600 F. App'x 926 ( 2015 )


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  •       Case: 13-11242          Document: 00512922372              Page: 1      Date Filed: 02/02/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT     United States Court of Appeals
    Fifth Circuit
    FILED
    February 2, 2015
    No. 13-11242
    Lyle W. Cayce
    Clerk
    CORDELL DAVIS, Individually; ANTOINETTE TURNER, as next friend for
    J.T.T., a minor,
    Plaintiffs - Appellants
    v.
    J. ROMER, in his individual capacity,
    Defendant - Appellee
    ------------------------------------------------------------------------------------------------------------
    LESLEE MARIE MARTIN, as next friend for C.T.T., Jr., a minor; ALICIA
    DE'SHON WHITE, as next friend for T.L.T., a minor; PATRICIA THOMAS,
    as next friend for D.M.G., a minor,
    Plaintiffs - Appellants
    v.
    J. ROMER, Individually and in His Official Capacity,
    Defendant - Appellee
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC Nos. 4:13-CV-198 & 4:13-CV-234
    Case: 13-11242      Document: 00512922372         Page: 2    Date Filed: 02/02/2015
    No. 13-11242
    Before STEWART, Chief Judge, BENAVIDES, and OWEN, Circuit Judges.
    PER CURIAM:*
    Fort Worth Police Officer J. Romer (“Romer”) was attempting to arrest
    Charal Thomas (“Thomas”), who was sitting in the driver’s seat of his vehicle.
    Although there was a warrant for his arrest, Thomas refused to exit his
    vehicle and submit to a lawful arrest. Romer reached inside the driver’s
    window, and Thomas suddenly began driving away. Romer then jumped on
    the vehicle’s running board and ordered Thomas to stop the vehicle, but
    Thomas ignored the order and continued to drive toward the entrance to the
    freeway. After Thomas refused to stop the vehicle, Romer, who was still
    standing on the running board of the fleeing vehicle, fatally shot Thomas.
    Thomas’s four children, three of whom were passengers in Thomas’s vehicle,
    and an unrelated passenger brought this suit against Romer, alleging, among
    other things, excessive use of force in violation of the Fourth Amendment.
    The district court granted summary judgment after determining that Romer
    was entitled to qualified immunity. Because we conclude that there was no
    constitutional violation in Romer’s use of deadly force, we affirm the district
    court’s judgment.
    I.     FACTUAL AND PROCEDURAL HISTORY
    On February 28, 2011, undercover officers observed Thomas leaving a
    house that was believed to be involved with drug trafficking. Those officers
    then observed Thomas committing traffic infractions while driving and called
    uniformed patrol officers to make a traffic stop. Thomas was driving his Ford
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
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    Expedition in Fort Worth, Texas. His front seat passenger was Cordell Davis
    (“Davis”), and three of Thomas’s minor children were seated in the second row.
    Officer Romer and Officer C.C. Drew (“Drew”) stopped Thomas based on the
    alleged misdemeanor traffic violations. While Thomas waited in the vehicle,
    the officers ran his driver’s license through the computer and discovered
    outstanding misdemeanor traffic warrants.
    Standing by the driver’s door, Drew informed Thomas that they were
    going to arrest him and asked him to exit his vehicle. Thomas refused, and
    Drew attempted to open the driver’s side door. Romer reached inside the
    vehicle through the driver’s side window in an attempt to unlock the door.
    With Romer’s arm inside the vehicle, Thomas starting driving to the left
    toward the exit of the parking lot and then onto the service road alongside the
    freeway. When the vehicle starting moving, Romer jumped on the running
    board. Although Romer and Davis were both shouting for Thomas to stop the
    vehicle, he continued driving. As the vehicle was traveling on the highway’s
    service road, Romer, who was standing on the vehicle’s running board, pulled
    his gun from the holster and fatally shot Thomas. Upon hearing the gunshots,
    Davis jumped out of the moving vehicle from the passenger side and was
    injured as he fell to the ground. The vehicle then came to a stop in the driveway
    of a residence along the service road.
    In 2013, Davis and Thomas’s four minor children (each acting through a
    next friend) brought suit against Romer, individually and in his official
    capacity as a police officer, and the City of Fort Worth. The plaintiffs alleged
    excessive use of force in violation of the Fourth Amendment pursuant to 
    42 U.S.C. § 1983
     and various state law claims.
    Romer moved for summary judgment based on qualified immunity. The
    district court agreed and entered summary judgment in favor Romer in his
    individual capacity.   Additionally, the court sua sponte dismissed without
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    prejudice all claims against Romer in his official capacity, stating that those
    claims are considered by law to be claims against his employer, the City of Fort
    Worth. The court then determined that there was no just reason for delay and
    entered final judgment as to Romer. See FED. R. CIV. P. 54(b). The plaintiffs
    now appeal that judgment. The district court subsequently granted the City
    of Fort Worth’s motion for summary judgment and that case is pending by
    separate appeal before this Court. Davis et al. v. City of Fort Worth, No. 14-
    10759.
    II.    ANALYSIS
    A. Standard of Review
    This Court reviews a grant of summary judgment de novo, applying the
    same standards as the district court. Am. Home Assurance Co. v. United Space
    Alliance, LLC, 
    378 F.3d 482
    , 486 (5th Cir. 2004). “A summary judgment
    motion is properly granted only when, viewing the evidence in the light most
    favorable to the nonmoving party, the record indicates that there is no genuine
    issue as to any material fact, and that the moving party is entitled to judgment
    as a matter of law.” Id.; see also FED. R. CIV. P. 56(a).
    B. Qualified Immunity from Excessive Force Claim
    Appellants contend that the district court erred in granting Romer
    summary judgment based on his defense of qualified immunity. “To determine
    whether a defendant is entitled to qualified immunity, this Court engages in a
    two-pronged analysis, inquiring (1) whether the plaintiff has alleged a
    violation of a constitutional right and, if so, (2) whether the defendant’s
    behavior was objectively reasonable under clearly established law at the time
    the conduct occurred.” Hampton v. Oktibbeha Cnty. Sheriff Dep’t, 
    480 F.3d 358
    , 363 (5th Cir. 2007) (citing Easter v. Powell, 
    467 F.3d 459
    , 462 (5th Cir.
    2006)). “If the plaintiff fails to state a constitutional claim or if the defendant’s
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    conduct was objectively reasonable under clearly established law, then the
    government official is entitled to qualified immunity.” 
    Id.
     (citing Easter, 467
    F.3d at 462). “Qualified immunity gives government officials breathing room
    to make reasonable but mistaken judgments,” and “protects all but the plainly
    incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, __
    U.S. __, 
    131 S. Ct. 2074
    , 2085 (2011) (internal quotation marks and citation
    omitted). “Once a defendant invokes qualified immunity, the burden shifts to
    the plaintiff to show that the defense is not available.” Kovacic v. Villarreal,
    
    628 F.3d 209
    , 211 (5th Cir. 2010).
    Appellants contend that Officer Romer violated the Fourth Amendment
    by using excessive force. The Fourth Amendment guarantees the right to be
    free from “unreasonable searches and seizures.” U.S. Const. amend. IV. Here,
    it is undisputed that Romer’s use of deadly force against Thomas constituted a
    seizure. Accordingly, Appellants “need only show that the use of deadly force
    was excessive, and that the excessiveness of the force was unreasonable.”
    Thompson v. Mercer, 
    762 F.3d 433
    , 437 (5th Cir. 2014) (citations and internal
    quotation marks omitted). However, an officer’s use of deadly force is not
    unreasonable when the officer has reason to believe that the “suspect poses a
    threat of serious harm to the officer or others.” 
    Id.
     (citations and internal
    quotation marks omitted). We must determine the reasonableness of the use
    of force “from the perspective of a reasonable officer on the scene, rather than
    with the 20/20 vision of hindsight.” Plumhoff v. Rickard, __ U.S. __, 
    134 S. Ct. 2012
    , 2020 (2014) (citation and internal quotation marks omitted).
    Appellants’ principal argument is that Romer’s conduct caused the
    dangerous encounter. Specifically, Appellants contend that “Romer’s life was
    in danger because of his own intervening actions of attempting not once but
    twice, to grab a hold of a moving vehicle when Romer had a choice not to do
    so.” Blue brief at 14. Appellants contend that the district court erred in
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    interpreting this Court’s precedent to limit its analysis to the circumstances
    existing at the moment Romer shot Thomas. Recently, this Court has rejected
    the same argument. In Thompson v. Mercer, an officer ended a two-hour high-
    speed chase by fatally shooting the suspect with an assault rifle. 762 F.3d at
    436. The Thompsons argued that the officers created the danger in their
    attempts to intercept the fleeing vehicle driven by the suspect. Id. at 439. This
    Court held that such an argument was “wholly without merit,” explaining that
    it had “consistently rejected similar reasoning.” Id. at 439–40. This Court
    explained that the “question is not whether the force would have been avoided
    if law enforcement had followed some other police procedures.” Id. at 440
    (citations and internal quotation marks omitted). Instead, the Court explained
    that “regardless of what had transpired up until the shooting itself, the
    question is whether the officer [had] reason to believe, at that moment, that
    there was a threat of physical harm.” Id. (citation and internal quotation
    marks omitted) (alteration in original). This Court concluded that it was the
    fleeing driver and not the officer “who intentionally placed himself and the
    public in danger by unlawfully engaging in the reckless, high-speed flight that
    ultimately produced the choice that [the officer] had to make.” Id. (citation and
    internal quotation marks omitted) (alteration added). Accordingly, this Court
    held that the officer’s shooting of the suspect did not violate the Fourth
    Amendment. Id.
    In Rockwell v. Brown, police officers were called because a mentally ill
    individual had threatened suicide and barricaded himself in his room. 
    664 F.3d 985
    , 989 (5th Cir. 2011). The individual refused to leave the room, and
    the officers decided that because he was a threat to himself and his family,
    they were going to arrest him. 
    Id.
     When the officers breached the bedroom
    door, the individual was wielding two eight-inch knives and rushed out of his
    room toward the officers. The officers fatally shot him. Relying on precedent
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    from other circuits, the decedent’s family asked this Court to consider the
    circumstances surrounding the breach of the bedroom door in determining the
    reasonableness of the officers’ use of deadly force. 
    Id. at 992
    . This Court found
    the argument unavailing, explaining that at the time the officers used deadly
    force, the decedent was armed, and the officers had a reasonable belief that he
    posed an imminent risk of serious harm. 
    Id. at 993
    . Indeed, this Court stated
    that “[w]e need not look at any other moment in time.” Id.; see also Harris v.
    Serpas, 
    745 F.3d 767
    , 772 (5th Cir. 2014) (explaining that “any of the officers’
    actions leading up to the shooting are not relevant for the purposes of an
    excessive force inquiry in this Circuit”).
    Additionally, in Fraire v. City of Arlington, a police officer fatally shot
    the driver of a truck that was headed toward the officer. 
    957 F.2d 1268
     (5th
    Cir. 1992).   The plaintiffs alleged that the officer may not have followed
    established police procedure in identifying himself while in plain clothes. 
    Id. at 1275
    . The gist of their argument was that the officer’s failure to follow
    procedure “manufactured the circumstances that gave rise to the fatal
    shooting.” 
    Id.
     This Court explained that “regardless of what had transpired
    up until the shooting itself, [the suspect’s] movements gave the officer reason
    to believe, at that moment, that there was a threat of physical harm.” 
    Id. at 1276
    . Thus, the force was not excessive and the officer was entitled to qualified
    immunity.
    Appellants recognize the above precedent and seek to distinguish it,
    stating that Davis and the minor children testified that Romer’s arm was not
    trapped in the window as Romer claims. Brief at 13. Appellants asserted at
    oral argument that Romer should have made the “better decision . . . to let
    [Thomas] go.” Appellants argue that Romer caused the danger by jumping on
    the running board of the vehicle. In other words, their argument is that
    instead of jumping on the vehicle Romer should have moved away from the
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    fleeing vehicle. Appellants’ argument that the “officer[ ] could have moved
    away from the car is, unfortunately, a suggestion more reflective of the ‘peace
    of a judge’s chambers’ than of a dangerous and threatening situation on the
    street.” Ramirez v. Knoulton, 
    542 F.3d 124
    , 130 (5th Cir. 2008) (quoting Elliott
    v. Leavitt, 
    99 F.3d 640
    , 643 (4th Cir. 1996)). Viewing the evidence in the light
    most favorable to Appellants, there is testimony that Romer removed his arm
    from the window after Thomas began driving toward the service road.
    Nonetheless, this does not constitute a genuine issue of material fact because
    Appellants’ brief concedes that Romer’s arm was inside the vehicle at the time
    Thomas began driving away. Brief at 17. Moreover, the evidence, including
    Davis’s testimony, demonstrates that Thomas’s driving away with Romer’s
    arm inside the vehicle and Romer subsequently jumping on the vehicle’s
    running board occurred very rapidly.                Under such chaotic, dangerous
    circumstances, Appellants have not shown that Romer’s conduct was
    objectively unreasonable. As previously discussed, the definitive question is
    whether Romer had a reasonable belief that Thomas posed a risk of serious
    harm at the time Romer used deadly force. Appellants have conceded that
    Romer was on the running board of the fleeing vehicle when he fired the fatal
    shots. We therefore conclude that at the time of the shooting, Romer had
    reason to believe that there was a serious threat of physical harm to him. 1
    Nonetheless, Appellants argue that Romer did not kill Thomas in an act
    of self-preservation.       Instead, Appellants claim Romer’s “actions were
    motivated by a violent and sadistic rage to kill Charal Thomas when he left the
    scene of a traffic stop.” Id. at 10. However, the “reasonableness inquiry is
    1 Appellants point out that Romer knew that Thomas was an amputee with only one
    leg and thus could not elude the officers once the vehicle was stopped. Brief at 16. However,
    that does not change the fact that Romer was at serious risk of harm when he used deadly
    force while traveling down the service road on the running board.
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    objective:   the question is whether the officers’ actions are objectively
    reasonable in light of the facts and circumstances confronting them, without
    regard to their underlying intent or motivation.” Rockwell, 664 F.3d at 991
    (citation and internal quotation marks omitted). Thus, Romer’s subjective
    intent is irrelevant to the reasonableness determination.
    Appellants     further   attempt   to   distinguish   the   above-discussed
    precedent, stating that unlike those cases, in the instant case, Thomas was
    unarmed. The Supreme Court has held that it is constitutionally unreasonable
    to use deadly force on an unarmed suspect by shooting him while he was fleeing
    on foot. Tennessee v. Garner, 
    471 U.S. 1
     (1985). This is because the officer
    “could not reasonably have believed” that the suspect “posed any threat,” and
    the officer “never attempted to justify his actions on any basis other than the
    need to prevent an escape,” 
    Id. at 21
    . That case is inapposite. Here, the
    testimony and the diagram of the scene demonstrate that Romer was standing
    by the driver’s door when Thomas suddenly drove to the left with Romer’s arm
    inside the vehicle. Moreover, it is undisputed that Romer was standing on the
    running board of the vehicle as it was being driven on the service road and
    headed toward the freeway. Clearly, Thomas’s actions put the officer in harm’s
    way, and there was a very real danger that Romer would sustain serious injury
    or death. Thus, unlike in Garner, Thomas’s actions were posing a threat to
    Romer at the time of the shooting.
    Additionally, Appellants contend that the force was unjustified because
    the warrants for Thomas’s arrest were for outstanding misdemeanor traffic
    violations and not for the commission of any felony. Brief at 16. This Court
    has rejected just such an argument, explaining that the important question is
    whether the suspect is “dangerous or benign” and “not whether the suspect is
    suspected of committing a felony or a misdemeanor.” Fraire, 
    957 F.2d at
    1276
    n.29. Appellants also point to the fact that Romer fired 12 rounds as opposed
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    to a single shot in self-defense. Blue brief at 13-14 (citing Fraire, 
    957 F.2d 1275
    ). The Supreme Court has rejected the argument that an officer’s firing of
    15 rounds constituted excessive force because “if police officers are justified in
    firing at a suspect in order to end a severe threat to public safety, the officers
    need not stop shooting until the threat has ended.” Plumhoff, 
    134 S. Ct. at 2022
    .
    Accordingly, because Romer’s use of force was objectively reasonable,
    Appellants have not shown a Fourth Amendment violation. Thus, Appellants
    cannot show that Romer’s use of deadly force was objectively unreasonable
    under clearly established law at the time the incident occurred. Cf. Brosseau
    v. Haugen, 
    543 U.S. 194
     (2004) (per curiam) (holding that a police officer did
    not violate clearly established law when she fired at a fleeing vehicle to prevent
    possible harm to others in the immediate area). The district court properly
    granted summary judgment as to the Fourth Amendment claim based on
    qualified immunity.
    C. Qualified Immunity from State Law Claims
    The district court ruled that Romer was entitled to qualified immunity
    under Texas state law with respect to the state law claims. Romer asserts that
    Appellants have abandoned their state law claims by failing to address them
    in their opening brief. 2        Appellants do not address the district court’s
    disposition of their state law claims in their brief. Thus, Appellants have
    abandoned any state law claims. Yohey v. Collins, 
    985 F.2d 222
     (5th Cir. 1993).
    2 Romer also asserts that Appellants’ claims against him in his official capacity have
    been abandoned because Appellants did not brief them. Red brief at 27. On October 15,
    2013, the district court sua sponte dismissed without prejudice the claims against Romer in
    his official capacity and stated that those claims are considered by law to be claims against
    his employer, City of Fort Worth. As previously mentioned, the separate appeal involving
    the City of Fort Worth is separately pending before this Court. Davis et al. v. City of Fort
    Worth, No. 14-10759.
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    D. Conclusion
    For the above reasons, the judgment of the district court is AFFIRMED.
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