Opinion
Civil Action No. 3:98-CV-2945-M.
August 28, 2000.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants' Motion for Summary Judgment, filed December 22, 1999, its brief in support thereof, and all responses and replies thereto. Plaintiff brings suit as executrix of Johnny Dee Flatt's Estate, for damages pursuant to the Texas Tort Claims Act, and under 42 U.S.C.A. § 1983 for violation of his constitutional rights. Such claims stem from a 1998 incident which involved a confrontation between Johnny Dee Flatt ("Flatt") and several police officers employed by Defendant City of Lancaster ("the City"). During the confrontation, Flatt was fatally shot by Officer E.R. Beaman ("Beaman"). Defendants now move for summary judgment, arguing that (1) there was no constitutional violation, (2) Beaman is entitled to qualified immunity, and (3) there is no City policy for which the City may be liable. Having considered the record and the applicable law, for the reasons stated below, the Court GRANTS Defendants' Motion for Summary Judgment.
I. Background
On February 28, 1998, several members of the City's police force received a call to respond to a report of a man (later identified as Flatt) with a gun who was threatening to take a child at the Portofino Apartments in Lancaster. Three officers, including Beaman, were dispatched. Upon arrival, Officer M.C. Smith ("Smith") repeatedly asked Flatt the location of his gun. Flatt failed to respond to such inquiries. Although Flatt did not identify himself as a law enforcement officer, he quickly showed Smith a badge, which Smith did not recognize. After Flatt flashed the badge, he continued to ignore Smith's inquiries about the location of Flatt's gun. Smith yelled at Flatt, "I'm not playing here," and Flatt responded, "I'm not either." After this exchange, Flatt reached into the driver's side door of his car, grabbed his holstered gun, displayed the gun in his right hand, and stated, "this is my pistol here."
Smith then began to wrestle with Flatt for control of the gun while the other two officers yelled at Flatt to surrender or drop the gun. The holster came off the pistol in the struggle, and Flatt pointed the gun at Officer Beaman. Beaman yelled to Flatt, "give it up, give it up, give it up," and then, "you're gonna die, you're gonna die, you're gonna die." According to Beaman, Flatt placed his finger inside the trigger guard of his gun, and Beaman, fearing for his life, fired his pistol at Flatt six times in rapid succession.
Based on these facts, Plaintiff brought suit on behalf of the decedent, alleging Texas Tort Claims Act violations, as well as § 1983 claims for a violation of due process and for excessive force, in contravention of the Fourth and Fourteenth Amendments. Since Plaintiff concedes in her Supplemental Brief, filed March 24, 2000, that a claim under the Texas Tort Claims Act is improper, the only remaining claims for the Court to decide are those for the alleged violations of Flatt's Fourth and Fourteenth Amendment rights under the United States Constitution. For the reasons stated below, the Court GRANTS Defendants' Motion for Summary Judgment in its entirety, and DISMISSES this suit with prejudice.
II. Summary Judgment Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material facts exists and that, as a matter of law, the movant is entitled to judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only disputes about those facts will preclude the granting of summary judgment. Id. In a motion for summary judgment, the burden is on the movant to prove that no genuine issue of material fact exists. Latimer v. Smithkline French Lab., 919 F.2d 301, 303 (5th Cir. 1990).
The nonmoving party, in order to resist a motion for summary judgment, must make a positive showing that a genuine dispute of material fact exists. Anderson, 477 U.S. 242 at 250. The record before the court must be considered in the light most favorable to the opposing party. Harrison v. Byrd, 765 F.2d 501 (5th Cir. 1985). However, bare allegations in briefs and pleadings are insufficient to withstand summary judgment. Alizadeh v. Safety Stores, Inc., 802 F.2d 111, 113 (5th Cir. 1986).
III. Analysis and Decision
A. Excessive Force
To establish an excessive force claim under the Fourth Amendment, Plaintiff must produce evidence of (1) an injury, which (2) resulted directly and only from the use of force that was clearly excessive to the need, and the excessiveness of which was (3) objectively unreasonable. See Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999) (citing Johnson v. Morel, 876 F.2d 477, 480 (5th Cir. 1989) (en banc), abrogated on other grounds, Harper v. Harris County, Tex., 21 F.3d 597 (5th Cir. 1994)). In the instant case, neither party disputes that Plaintiff alleges a violation of a clearly established right. Thus, the Court's analysis focuses on whether Beaman's conduct was objectively unreasonable.
Plaintiff alleges that Flatt was shot to death by Beaman "execution-style," with Beaman shooting Flatt twice in the back, and then four times in the chest as he reeled around as a result of the first two gunshots. Plaintiff alleges this occurred after Flatt had complied with all of the officer's requests and even identified himself as an officer of the law.
However, the undisputed facts before the Court tell a much different story, establishing the shooting was not objectively unreasonable. The officers received a report from the dispatcher that a man with a gun was trying to take a child from its mother. Flalt was identified as the man with the gun, and the officers surrounded Flatt, asking him about the location of his gun. Flatt quickly flashed a badge at Smith, ignored Smith's questions, then pulled out his gun. Smith then wrestled with Flatt for control of the gun. During this struggle, it is undisputed that Flatt pointed his pistol at Beaman, who, in effect, warned Flatt six times before shooting him, including repeatedly telling Flatt to "give it up," but Flatt did not drop his weapon. Under these facts, Beaman's actions were not objectively unreasonable; therefore, Plaintiff's claim for excessive force under the Fourth Amendment fails as a matter of law. See Colston v. Barnhart, 130 F.3d 96, 98 (5th Cir. 1997).
B. Substantive Due Process
Plaintiff further claims that Defendants violated decedent's Fourteenth Amendment due process rights due to the "shooting of [Flatt] [which] constituted an unreasonable seizure . . . within the meaning of the Fourth and Fourteenth Amendments." Pl. Comp. at 6. A review of the pleadings reveals that this claim is one for excessive force, which is to be analyzed under the Fourth Amendment reasonableness standard, as discussed previously. Graham v. Connor, 490 U.S. 386, 395 (1989). A substantive due process claim is only appropriate when actions taken by an executive official (such as a police officer) "shock the conscience." County of Sacramento v. Lewis, 523 U.S. 833, 836 (1998); see generally Rochin v. California, 342 U.S. 165 (1952) (establishing the "shock the conscience" test). As explained above, without minimizing the severity of Plaintiff's loss, there are no facts which establish that the challenged conduct, that is, Officer Beaman's decision to shoot at Flatt under the circumstances, rises to a level of "shocking the conscience." Accordingly, Plaintiff's claim for denial of due process is DISMISSED.
C. Qualified Immunity
In the alternative, even if a genuine issue of fact existed as to Plaintiff's constitutional claims, Beaman is entitled to the defense of qualified immunity. "Public officials acting within the scope of their official duties are shielded from civil liability by the qualified immunity doctrine." Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir. 1999). Government officials are entitled to qualified immunity "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
The test for qualified immunity in the context of excessive force in violation of the Constitution requires (1) an injury, (2) which resulted directly and only from the use of force that was clearly excessive to the need, and (3) the force used was objectively unreasonable. Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999). Clearly, Flatt suffered a fatal injury. For the sake of this analysis only, the Court will assume the firing of fatal shots was excessive.
Even if excessive force were used, however, Beaman is still entitled to qualified immunity if his actions were not objectively unreasonable. Kipps, 197 F.3d at 769. Objective reasonableness is a matter of law for the Court to decide, not a matter for the jury. Williams, 180 F.3d at 703 (5th Cir. 1999). Whether Beaman's conduct was not objectively unreasonable depends on the controlling circumstances surrounding Beaman's actions and the clearly established law in effect at the time. Shipp v. McMahon, 199 F.3d 256, 262 (5th Cir. 2000).
The qualified immunity defense "gives ample room for mistaken judgments" by protecting "all but the plainly incompetent or those who knowingly violate the law." Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995). Government officials, like Beaman, are entitled to the defense of qualified immunity "if their decision was reasonable, albeit mistaken." Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993). On the record before it, and as explained above, the Court is persuaded that Beaman's actions were not objectively unreasonable. Beaman repeatedly warned Flatt to drop his weapon, which Flatt did not do, instead pointing it at Beaman. Under these circumstances alone, based on clearly established law, Beaman's shooting of Flatt was not unreasonable. The Court thus finds as a matter of law that Beaman is immune from liability under the doctrine of qualified immunity.
D. Policy or Practice of the City
Summary judgment is also appropriate for all claims against the City. The federal claims by Plaintiff are defeated by the finding that there is no valid Fourth or Fourteenth Amendment claim. However, even if there were a constitutional violation, the City would not be liable under 42 U.S.C. § 1983, so long as the City did not have a policy or engage in a practice that caused the violation. Monell v. New York Dept. of Soc. Serv., 436 U.S. 658, 690-94 (1978). Liability is established under § 1983 "only where the municipality itself causes the constitutional violation at issue." City of Canton v. Harris, 489 U.S. 378, 385 (1989). The municipal policy must be a deliberate and conscious choice by the municipal policymakers. The connection between the policy and the alleged constitutional deprivation must be greater than "but-for" causation; indeed, the municipal policy must be "affirmatively linked to the constitutional violation and be the moving force behind it." Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir. 1992).
When the policy itself is not unconstitutional, considerably more proof than a single incident will be necessary as to both the fault of the municipality and the link between the policy and the constitutional deprivation. City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985). Plaintiff must allege specific facts that show: 1) a policy or custom existed; 2) the government policy makers actually or constructively knew of its existence; 3) a constitutional violation occurred; and 4) the custom or policy served as the moving force behind the violation. Meadowbriar Home for Children, Inc., v. Gunn, 81 F.3d 521, 532-33 (5th Cir. 1996).
Plaintiff asserts that a separate incident involving Beaman, which included a complaint of excessive force by a Lancaster City Council member, made the retention of Beaman improper, and is evidence of the existence of a pattern. However, that incident was investigated by the Texas Rangers and Beaman was found to have committed no wrongdoing.
In addition, there is no evidence that the City had reason to believe that Beaman would apply excessive force in performing his duties. There is also no evidence to refute that Beaman was adequately screened, trained and supervised by the City. Moreover, the Police Department employs video cameras as part of a review process to oversee officers, resulting in another officer being discharged because of an excessive force complaint.
Furthermore, the number of excessive force complaints in Lancaster is less than one per year. This fact, combined with the review process utilized by the City, establishes that there is no evidence of a policy or procedure which gave cause to Flatt's constitutional rights being violated. Plaintiff has failed to establish the existence of a pattern of similar incidents involving improper use of deadly force from which a jury could reasonably infer that a policy or procedure of the City was likely to result in a constitutional violation.
Under these facts, in no way could it be reasonably argued that the City was deliberately indifferent. Except in truly extraordinary circumstances not present here, single incidents, or even a few isolated incidents, would not alone be sufficient to show the existence of a municipal policy or practice whereby the City knew of and condoned a widespread pattern of similar incidents resulting in injuries and death at the hands of the police using deadly force. See Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992). Plaintiff has presented the Court with no such evidence to create a fact issue. Accordingly, summary judgment is appropriate, and all claims against the City alleging any constitutional violation are DISMISSED.
But see Brown v. Bryan Co., Okla., 2000 WL 986996 (5th Cir. July 18, 2000), where the Fifth Circuit recently held that a single decision by a policymaker regarding failure to train could support a finding of municipal liability, once the decision not to train leads to predictable consequences. However, the undisputed evidence before the Court here is that Beaman was properly trained; therefore, the Court finds Brown inapplicable to the facts at hand.
IV. CONCLUSION
For the reasons stated above, Defendants' Motion for Summary Judgment is GRANTED, and Plaintiff's claims are DISMISSED WITH PREJUDICE. Judgment will be entered by separate document.
SO ORDERED.