Waller v. Hoeppner

Case: 21-10129 Document: 00516486099 Page: 1 Date Filed: 09/27/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 27, 2022
No. 21-10129 Lyle W. Cayce
Clerk
Angie Waller; Chris Waller,
Plaintiffs—Appellees,
Terry Wayne Springer; Gayla Wynell Kimbrough,
Intervenor Plaintiffs—Appellees,
versus
Richard Hoeppner,
Defendant—Appellant,
consolidated with
No. 21-10457
Angie Waller; Chris Waller,
Plaintiffs—Appellants,
Terry Wayne Springer; Gayla Wynell Kimbrough,
Intervenor Plaintiffs—Appellants,
versus
Case: 21-10129 Document: 00516486099 Page: 2 Date Filed: 09/27/2022
No. 21-10129
c/w Nos. 21-10457, 21-10458
Richard Hoeppner,
Defendant—Appellee,
consolidated with
No. 21-10458
Angie Waller; Chris Waller,
Plaintiffs—Appellants,
Terry Wayne Springer; Gayla Wynell Kimbrough,
Intervenor Plaintiffs—Appellants,
versus
City of Fort Worth Texas,
Defendant—Appellee.
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CV-670
Before Richman, Chief Judge, and Clement and Engelhardt,
Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
2
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No. 21-10129
c/w Nos. 21-10457, 21-10458
Defendant-police officer Richard Hoeppner shot and killed Jerry
Waller. Waller’s family (Plaintiffs) sued Hoeppner and the City of Fort
Worth alleging excessive force and municipal liability. The district court
denied Hoeppner’s motion for summary judgment, in which he asserted
qualified immunity but granted the City’s motion for summary judgment
concluding that it was not liable under Monell v. Department of Social Services
of the City of New York. 1 Hoeppner and Plaintiffs appeal those
determinations. Plaintiffs also appeal an independent Fourth Amendment
claim. We affirm the district court’s summary judgment orders on qualified
immunity and municipal liability and dismiss the appeal as to the independent
Fourth Amendment claim for lack of jurisdiction.
I
Around 1:00 a.m. on May 28, 2013, the Fort Worth Police
Department dispatched officers Richard A. Hoeppner and Benjamin Hanlon
in response to a potential burglary. Hoeppner and Hanlon were both rookies
in their initial probationary year with the department. The call came across
as an active residential burglary alarm. As they neared the call location, they
turned off their vehicle’s lights and parked in front of a neighboring home.
Not realizing that even-numbered houses on are one side of the street and
odd-numbered houses are on the other side, they went to the wrong house
and walked around Waller’s home. They scanned the perimeter of the home
with their flashlights, and the Wallers’ small dogs began barking inside the
home. This awoke Jerry Waller. While Hanlon went around to the front of
the house, Hoeppner stayed in the driveway and saw Waller enter the garage.
Waller was carrying a gun. Hoeppner approached Waller with his gun aimed
at him and shined his flashlight in Waller’s eyes. Hoeppner repeatedly yelled
1
436 U.S. 658 (1978).
3
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c/w Nos. 21-10457, 21-10458
“drop the gun.” Hanlon heard the yelling, ran back to the driveway, and
identified the officers as “Fort Worth Police!” or “Fort Worth PD!” Waller
placed the gun on the trunk of the vehicle parked in the garage. What
happened next is in dispute.
Waller was shot six times by Hoeppner. According to Plaintiffs and
contrary to Hoeppner’s account, Waller remained unarmed when he was
shot. Plaintiffs emphasize that the officers have materially conflicting
accounts of what happened. Hoeppner claims that he opened fire from a
distance of seven yards, while Hanlon claims that Waller was shot at a
distance of two or three feet. Hanlon claims that Waller had the gun in his
left hand throughout the shooting until he fell on the gun, while Hoeppner
claims Waller had the gun in both hands and never dropped it.
The medical examiner noted seven gunshot wounds from the six shots
fired. Hoeppner shot Waller in the torso and through the outside of the left
thumb and through the first and second fingers. Plaintiffs contend that the
shot to the left hand, together with the direction of the shots to the torso, are
consistent with Waller being shot while standing upright with his hands
shading his eyes with the left hand in front of the right. The small handgun
had no damage suggesting it was not held in the left hand or in both hands.
They contend that the gunshot wounds to the fingers, a blood spatter pattern
on the left side of Waller’s face, and an unsmeared blood spatter on his right
hand, all of which are shown in crime scene and autopsy photographs,
demonstrate that Waller was unarmed when he was shot.
Plaintiffs sued the City of Fort Worth and Officer Hoeppner as well as
various other defendants, but the latter defendants are no longer parties to
the litigation. Plaintiffs brought a wrongful death and declaratory judgment
action under 42 U.S.C. § 1983, the Fourth and Fourteenth Amendments of
the U.S. Constitution, and under similar provisions of the Texas
4
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Constitution. The parties filed a number of motions and amended pleadings,
and, in the process, Plaintiffs dismissed various claims. The court stayed
discovery and scheduled qualified immunity for prompt consideration. All
individual defendants filed dispositive motions.
In April 2018, Judge Means issued two orders, resolving all
dispositive motions. The court stated that “any claims that were intended to
be brought by Plaintiffs against any defendant, but that the Court has not
addressed . . . should be and hereby are dismissed.” As to Hoeppner’s
motion for judgment on the pleadings based on qualified immunity, the court
determined that taking Plaintiffs’ allegations as true, Waller posed no
immediate threat, and the motion should be denied. This court affirmed that
order. 2
On remand, the case was transferred to Judge Pittman. After
conducting discovery, the City of Fort Worth and Hoeppner moved for
summary judgment. Plaintiffs responded to these motions claiming that
Hoeppner had also trespassed upon the curtilage of the Waller home,
invading their privacy in violation of the Fourth Amendment. In January
2021, the district court denied Hoeppner’s motion and granted the City’s.
In ruling on the motions, the district court denied Plaintiffs’ alleged
illegal search claim as not being properly pled. Plaintiffs filed a motion to
reconsider, which the district court denied. The district court noted that to
the extent any mention of the claim can be found in the pleadings, it was
couched in state law, not constitutional terms, and even if the complaint does
contain this claim, it was dismissed in April 2018 by Judge Means. At
Plaintiffs’ request, the district court certified the issue for interlocutory ap-
peal pursuant to 28 U.S.C. § 1292(b). This court denied the petition.
2
Waller v. Hanlon, 922 F.3d 590, 601 (5th Cir. 2019).
5
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Plaintiffs then requested the district court issue judgment on the unpleaded
claims pursuant to Rule 54(b). The district court denied this request stating
that it cannot adjudicate claims it has not considered.
Hoeppner appealed the denial of his summary judgment motion. In
April 2021, Plaintiffs filed two separate notices of appeal—one which stems
from the grant of summary judgment as to the City and one which appears to
stem from the observations made by the district court as to their illegal search
claim and from the district court’s denial of their motion for Rule 54(b) final
judgment. We consolidated the three appeals.
II
The first issue concerns the district court’s denial of Hoeppner’s
motion for summary judgment based on qualified immunity. Because the
district court concluded that there was a genuine dispute of material fact, we
do not have jurisdiction to challenge that determination.
“We review de novo a district court’s denial of a motion for summary
judgment on the basis of qualified immunity.” 3 “A denial of a motion for
summary judgment on the issue of qualified immunity is immediately
appealable, to the extent that the district court’s order turns on an issue of
law.” 4 Qualified immunity insulates public officials from liability “insofar as
their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” 5 Neither party
makes an argument regarding whether a right at issue was “clearly
established” at the time of the conduct; the only question is whether
3
Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010).
4
Id.5
Id. at 213 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
6
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Hoeppner violated Waller’s constitutional rights under the Fourth
Amendment’s reasonableness standard.
When a § 1983 defendant pleads a qualified immunity defense, the
plaintiff then bears the burden to show that qualified immunity is not
available. 6 “On appeal, we ask ‘the purely legal question whether the
defendants are entitled to qualified immunity on the facts that the district
court found sufficiently supported in the summary judgment record.’” 7
“Where the district court finds that the summary judgment record presents
a genuine dispute of material fact, we do not challenge its determination of
‘whether there is enough evidence in the record for a jury to conclude that
certain facts are true.’” 8
In this case, the district court determined that the pretrial record set
forth a “genuine” issue of fact for trial: 9 whether Waller was unarmed when
he was shot. 10 This court’s jurisdiction “does not extend to the district
6
See Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997).
7
Dean v. Phatak, 911 F.3d 286, 290 (5th Cir. 2018) (citation omitted); see also
Kovacic, 628 F.3d at 211 (“A denial of a motion for summary judgment on the issue of
qualified immunity is immediately appealable, to the extent that the district court’s order
turns on an issue of law.”).
8
Dean, 911 F.3d at 290 (quoting Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir.
2004)); see also Waller v. Hanlon, 922 F.3d 590, 598 (5th Cir. 2019) (quoting Hogan v.
Cunningham, 722 F.3d 725, 731 (5th Cir. 2013)) (“In hearing an appeal from an order
denying summary judgment on qualified-immunity grounds, we have jurisdiction to
‘review the materiality of any factual disputes, but not their genuineness.’”).
9
See Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001) (“An
issue is ‘genuine’ if it is real and substantial, as opposed to merely formal, pretended, or a
sham.”).
10
Cf. Snyder v. Trepagnier, 142 F.3d 791, 800 (5th Cir. 1998) (concluding that
important issues of material fact related to immunity existed and, specifically, “the jury
needed to determine what sequence of events occurred, and, in particular, whether [the
plaintiff] had a gun—or, if he did not actually have a gun, whether [the defendant]
reasonably believed he did”); Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir.
7
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court’s . . . determination that a genuine issue of fact exists as to whether
appellant engaged in a ‘course of conduct’ that is ‘objectively
unreasonable.’” 11 We do have jurisdiction to determine materiality, 12 but the
disputed facts here are indeed “material” to the ultimate legal question.
Whether Waller was armed when he was shot goes to the heart of whether
his constitutional rights were violated. 13 We therefore affirm the district
court’s order denying summary judgment.
III
The second issue concerns the district court’s grant of the City’s
motion for summary judgment. Because Plaintiffs cannot raise a genuine
dispute of material fact, summary judgment was proper.
We review a district court’s grant of summary judgment de novo. 14
“Summary judgment is appropriate only ‘if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine
2009) (“[T]he existing evidence raises unresolved questions about what occurred. We
therefore hold that the evidence creates a genuine issue of material fact. . . .”).
11
Juarez v. Aguilar, 666 F.3d 325, 331 (5th Cir. 2011) (quoting Kinney, 367 F.3d at
346-47).
12
Bazan, 246 F.3d at 490 (“[W]e have jurisdiction for this interlocutory appeal if
it challenges the materiality of factual issues, but lack jurisdiction if it challenges the district
court’s genuineness ruling . . . .”).
13
See id. at 489 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986))
(“A fact is ‘material’ if it ‘might affect the outcome of the suit under the governing law.’”);
see also id. at 493 (“[B]ecause these factual issues control the outcome of the case (are
material), we lack jurisdiction to consider the propriety of the summary judgment denial.”);
Waller, 922 F.3d at 599 (“[T]he sole question is whether . . . Waller was unarmed when
Hoeppner shot him.”).
14
Peterson, 588 F.3d at 844.
8
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c/w Nos. 21-10457, 21-10458
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.’” 15
The “two fundamental requirements for holding a city liable under
§ 1983 for inadequate hiring and training policies” are causation and
culpability. 16 The municipal policy must have been the “moving force”
behind the constitutional violation and the municipality must have adopted
the policy with “deliberate indifference” to its “known or obvious
consequences.” 17 We have consistently “demanded a high standard of proof
before imposing Monell liability on a municipality.” 18 Plaintiffs allege four
theories of liability under Monell: (1) illegal entry onto the curtilage;
(2) failure to identify as an officer; (3) failure to verify address; and (4) failure
of supervision of rookie officers on the night shift. Because Plaintiffs’
theories fail on causation, we need not address deliberate indifference.
The City is correct 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.” 19 This means that a city policy or custom had to directly influence
the use of excessive force during the crucial forty-four seconds of the
shooting. Plaintiffs allege policies or customs that relate to the series of
events that precede that time frame. 20 We agree with the district court that,
15
Id. (quoting Fed. R. Civ. P. 56(c)).
16
Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998).
17
Id.18
Id. at 796.
19
Harris v. Serpas, 745 F.3d 767, 772 (5th Cir. 2014).
20
See Rockwell v. Brown, 664 F.3d 985, 992 (5th Cir. 2011) (“[The plaintiffs] urge
this Court to examine the circumstances surrounding the forced entry, which may have led
to the fatal shooting . . . . This argument is unavailing.”).
9
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“[t]hese policies may be ‘but for’ causes, but they are not the moving force
behind Hoeppner’s use of force.”
As for the failure to identify theory, the City and district court
emphasize that there is “undisputed evidence that Hanlon did verbally
identify as police.” The policy is also likely premised on achieving
cooperation and, according to Plaintiffs, Waller did put his gun down. The
policy, therefore, achieved its goal and even if Hoeppner had also verbally
identified himself, the outcome would not have changed. All of Plaintiffs’
theories fail on the causation prong. The district court’s order granting
summary judgment to the City is affirmed.
IV
The last issue concerns an alleged illegal search claim. Plaintiffs
appear to appeal this claim from one of three sources: (1) the April 2018
dismissal by Judge Means; (2) the January 2021 summary judgment
order; or (3) the April 2021 denial of their Rule 54(b) motion. Under any of
the three, we do not have jurisdiction.
“A threshold question implicit in every case that comes before us is
whether we have appellate jurisdiction.” 21 “This court must examine the
basis of its jurisdiction sua sponte.” 22
Any independent Fourth Amendment claim was dismissed in April
2018 by Judge Means in his order resolving all dispositive motions. The
court stated in its order that “any claims that were intended to be brought by
Plaintiffs against any defendant, but that the Court has not
addressed . . . should be and hereby are dismissed.” From this order,
21
Wilkens v. Johnson, 238 F.3d 328, 329-30 (5th Cir. 2001).
22
Rivera v. Salazar, 166 F. App’x 704, 705 (5th Cir. 2005) (unpublished).
10
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Plaintiffs failed to timely appeal any claims other than the excessive-force
claim. As to the January 2021 summary judgment order, even if Plaintiffs
could have taken an interlocutory appeal from this order, it would have had
to be perfected within thirty days, 23 and this appeal was not.
Finally, Plaintiffs could not appeal the district court’s denial of their
Rule 54(b) motion, because courts of appeal do not have jurisdiction over
such denials. We have held “that the denial of a motion for a Rule 54(b)
judgment is not appealable by way of interlocutory appeal.” 24 “[O]ur sister
circuits have [also] repeatedly held that the denial of a Rule 54(b) certification
is not appealable.” 25 Accordingly, we dismiss Plaintiffs’ Fourth Amendment
claim for lack of jurisdiction.
* * *
The district court’s rulings on the motions for summary judgment are
AFFIRMED and the independent Fourth Amendment claim is
DISMISSED for lack of jurisdiction.
23
See Kenyatta v. Moore, 744 F.2d 1179, 1186 (5th Cir. 1984), cert. denied, 471 U.S.
1066 (1985) (quoting 9 J. Moore, B. Ward, J. Lucas, Moore’s Federal
Practice ¶ 110.21) (“The procedure for taking an appeal from an interlocutory order
that is appealable as of right is precisely the same as that for taking an appeal from a final
judgment.”); Fed. R. App. P. 4(a)(1) ( “[T]he notice of appeal required by Rule 3 must
be filed with the district clerk within 30 days after entry of the judgment or order appealed
from.”).
24
Lewis v. Sheriff’s Dep’t Bossier Par., 478 F. App’x 809, 814 (5th Cir. 2012)
(unpublished).
25
Id.11