Waller, et al. v. City of Fort Worth Texas, et al.

Filing 201

MEMORANDUM OPINION AND ORDER: Based on the foregoing, the Court GRANTS Defendants' motion for summary judgment (doc. 153 ) and concludes that detectives Green and Baggott are entitled to qualified immunity for all claims asserted against them. (Ordered by Senior Judge Terry R Means on 4/12/2018) (tln)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
ANGIE WALLER, ET AL.

§
§
§
§
§
§

VS.
CITY OF FORT WORTH TEXAS,
ET AL.

CIVIL ACTION NO. 4:15-CV-670-Y

MEMORANDUM OPINION AND ORDER
Pending before the Court is the motion for summary judgment
of defendants Merle Green and Dana Baggott (doc. 153).

After

review of the motion, response, reply, related briefs, appendices,
and applicable law, the Court GRANTS Defendants’ motion for summary
judgment.
I.

FACTUAL BACKGROUND1

On May 28, 2013, just before 1:00 a.m., ADT Security Services
(“ADT”) received notice of a burglar-alarm activation at 409
Havenwood Lane North in Fort Worth, Texas, the residence of a Mrs.
Bailey. Unable to reach Bailey, ADT contacted one of Bailey’s
neighbors. The neighbor informed ADT that Bailey had recently
undergone a medical procedure and asked that ADT send someone to
check on Bailey. The ADT operator then contacted the Fort Worth

1

The Plaintiffs and Intervenors are collectively referred to as
“Plaintiffs” and all
facts have been taken from Plaintiffs’ First Amended
Complaint (doc. 41) and Intervenors’ Second Amended Complaint (doc. 45).
Plaintiffs have acknowledged that both complaints “are identical in all relevant
allegations” and have filed joint responses, replies, etc. (Pls.’ Resp. to Mot.
Summ. J. (doc. 176) 1 n. 1.)
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Police

Department

(“FWPD”),

stating

that

ADT

had

received

a

burglar-alarm notification at 409 Havenwood Lane North, the Bailey
residence.
In response, the FWPD dispatched two newly trained police
officers, Richard Hoeppner and Benjamin Hanlon, to respond to the
burglar alarm at the Bailey residence. Though they believed they
were at the correct address, 409 Havenwood Lane North, the officers
actually began investigating the residence of Jerry and Kathy
Waller at 404 Havenwood Lane North. Upon exiting their patrol cars,
the officers walked up the Wallers’ driveway together and then into
the back yard. After both officers surveyed the back of the house,
Hanlon went by himself to the front of the house to knock on the
door. Hanlon heard dogs barking and saw a light come on inside the
home and radioed Hoeppner to come around to the front at 1:06:06
a.m.

Instead of waiting on Hoeppner, however, Hanlon went to the

back of the house because he heard someone yelling, and there he
allegedly encountered Hoeppner with his gun drawn on Jerry Waller
inside the garage. The subsequent actions of Waller and the
officers are in dispute and have given rise to the present lawsuit.
According to Plaintiffs, Jerry Waller was awakened by blinking
lights coming from outside his home. Waller raised his overhead
garage door to turn off the alarm on his vehicle, which was int the
driveway, believing it to be the source of the blinking lights.
When Waller raised the garage door, he encountered Hoeppner, who
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shined a bright light into Waller’s eyes and yelled “drop the gun.”
Hoeppner did not, however, identify himself as a police officer to
Waller. Plaintiffs do not dispute that Waller had a gun when he
entered the garage, but the plaintiffs claim that Waller laid his
gun on the car's hood that was parked in the garage when told to do
so by Hoeppner. Plaintiffs further assert that Waller never reached
for his gun nor pointed it at Hoeppner once placing the gun on the
car's hood.

According to Plaintiffs, the blood-spatter evidence

from the crime-scene photographs and the autopsy report show that
Waller could not have been holding a gun when shot by Hoeppner.
Plaintiffs point to blood spatter on the left side of Waller's
face, combined with the entry-and-exit wounds sustained by Waller
on his left hand, support their contention that Waller was unarmed
and shielding his eyes from the bright lights when he was shot.
Hoeppner and Hanlon insist, however, that Waller grabbed the gun
and pointed it at Hoeppner just before Hoeppner shot and killed
Waller.

And at 1:06:50 a.m., forty-four seconds after Hanlon’s

first radio transmission, he contacted the police dispatcher and
stated, “The guy came out with a gun, wouldn’t put the gun down and
pointed it at Hoeppner and Hoeppner fired.”
The first officers to arrive after Waller was shot–-between
six and ten minutes later–-were B.S. Hardin and A. Chambers. Hardin
told investigators that he “had EMS experience” and approached
Waller to see if there were any signs of life. Hardin further
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stated that Waller’s hands were underneath his body when Hardin
moved Waller’s body to check for signs of life. Hardin also stated
that he removed the gun from underneath Waller’s body and placed it
a few feet away for the safety of others at the crime scene.
Plaintiffs

also

point

out

that

the

crime-scene

photographs

contradict Hardin’s statement. Plaintiffs contend that, had the gun
been under Waller’s body, the gun would have had large amounts of
blood on it given the amount of blood that Waller was lying in.
According to Plaintiffs, though, the crime-scene photographs do not
reveal any blood on the gun, but later photographs do, which
appears to have come from being in contact with a bloody glove.
Plaintiffs

assert

that

Baggott

and

Green

mishandled

the

investigation and claim that each detective was complicit in
covering up the unlawful shooting of Waller. In that regard,
Plaintiffs claim that Baggott and Green did not aggressively
question the inconsistent statements given by the officers, and
were aware that Hardin allegedly removed a gun from underneath
Waller’s body, and that he repositioned the body in the process.
And according to Plaintiffs, Baggot and Green failed to follow-up
on evidence that refuted each officer’s account, such as a lack of
visible blood found on the gun despite being under a body that was
bleeding profusely. Therefore, Plaintiffs conclude, Green and
Baggott acted unreasonably in their investigation, and thus, have
joined a conspiracy to cover up the unlawful actions of the other
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officers.
Plaintiffs further state that “Baggott and Green, failed to
obtain a warrant until after they had rummaged through the Waller
residence and . . . then misrepresented

to the magistrate the

facts necessary to obtain a warrant . . . .” Plaintiffs also claim
that Baggott and Green “undertook to alter and affect the testimony
of . . . Hanlon and Hoeppner, by [asking] leading and suggestive
questions and not challenging the clear inconsistencies in the
[officers’] stories.” Plaintiffs allege that “Baggott secretly and
surreptitiously recorded a conversation with Kathy Waller while she
was being treated at the Harris Hospital emergency room” after her
husband was shot. Plaintiffs further state that Baggott and Green
“published confidential medical information about Jerry Waller that
was in no way related to the [cause of his] death.” In doing so,
Plaintiffs allege that Baggott and Green violated Kathy Waller’s
rights to privacy.
As

a

result,

Plaintiffs

have

filed

amended

complaints,

asserting claims against detectives Green and Baggott. In response,
Green and Baggott have filed a motion for summary judgment under
Federal Rule of Civil Procedure 56, asserting that they are
entitled to qualified immunity for Plaintiffs’ claims. The Court
must now consider whether Defendants are entitled to qualified
immunity, and thus judgment as a matter of law, when the facts are
viewed in the light most favorable to Plaintiffs.
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II. STANDARD OF REVIEW
A. Summary-Judgment Standard
When the record establishes “that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as
a matter of law,” summary judgment is appropriate. Fed. R. Civ. P.
56(a). “[A dispute] is ‘genuine’ if it is real and substantial, as
opposed to merely formal, pretended, or a sham.”

Bazan v. Hidalgo

Cnty., 246 F.3d 481, 489 (5th Cir. 2001) (citation omitted).

A

fact is “material” if it “might affect the outcome of the suit
under governing law.”

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).
To demonstrate that a particular fact cannot be genuinely in
dispute, a defendant movant, except as to affirmative defenses,
must (a) cite to particular parts of materials in the record (e.g.,
affidavits, depositions, etc.), or (b) show either that (1) the
plaintiff

cannot

produce

admissible

evidence

to

support

that

particular fact, or (2) if the plaintiff has cited any materials in
response, show that those materials do not establish the presence
of a genuine dispute as to that fact.

Fed. R. Civ. P. 56(c)(1).

Although

consider

the

Court

is

required

to

only

the

materials, it may consider other materials in the record.
Fed. R. Civ. P. 56(c)(3).

cited
See

Nevertheless, Rule 56 "does not impose

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on the district court a duty to sift through the record in search
of evidence to support a party's opposition to summary judgment."
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th
Cir.), cert. denied, 506 U.S. 825 (1992).

Instead, parties should

"identify specific evidence in the record, and . . . articulate the
'precise manner' in which that evidence support[s] their claim."
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994).
In evaluating whether summary judgment is appropriate, the
Court “views the evidence in the light most favorable to the
nonmovant, drawing all reasonable inferences in the nonmovant’s
favor.”

Sanders-Burns v. City of Plano, 594 F.3d 366, 380 (5th

Cir. 2010) (citation omitted) (internal quotation marks omitted).
“After the non-movant has been given the opportunity to raise a
genuine factual [dispute], if no reasonable juror could find for
the non-movant, summary judgment will be granted." Byers v. Dallas
Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
B. Qualified Immunity
When a plaintiff seeks monetary damages directly from a
defendant in an individual capacity for actions taken under the
color of law, the defendant may invoke his right to qualified
immunity. See Hafer v. Melo, 502 U.S. 21, 26 (1991); Doe ex rel.
Magee v. Covington Cty. School Dist., 649 F.3d 335, 341 n. 10 (5th
Cir. 2011)(only natural persons sued in their individual capacities
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 7
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are entitled to qualified immunity). The doctrine of qualified
immunity
damages

protects
insofar

established

public
as

officials

their

statutory

“from

conduct

or

does

liability
not

constitutional

for

violate

rights

of

civil

clearly
which

a

reasonable person would have known.” Pearson v. Callahan, 555 U.S.
223, 231 (2009)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). The doctrine balances the important interests of holding
“public

officials

accountable

when

they

exercise

power

irresponsibly and the need to shield officials from harassment,
distraction,

and

liability

when

they

perform

their

duties

reasonably.” Pearson, 555 U.S. at 231. Because an official is
entitled to immunity from suit, not merely from liability, immunity
questions should be resolved at the earliest possible stage in the
litigation. Hunter v. Bryant, 502 U.S. 224, 227 (1991).
To determine whether a government official is entitled to
qualified immunity at the summary-judgment stage, this Court must
undertake a two-pronged analysis, inquiring: (1) whether the facts
that the plaintiff has shown a violation of a constitutional or
statutory right; and (2) whether the right at issue was “clearly
established”

at

the

time

of

the

defendant’s

demonstrated

misconduct. Pearson, 555 U.S. at 232 (citing Saucier v. Katz, 533
U.S. 194, 201 (2001)).

Courts have discretion, however, in

deciding which of the two prongs to address first based upon the
circumstances of the case. See Pearson, 555 U.S. at 236 (rejecting
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Saucier’s mandatory two-step sequence); Lytle v. Bexar Cty. Tex.,
560 F.3d 404, 409 (5th Cir. 2009).
The right the official is alleged to have violated must be
“clearly established” in a particularized sense to the context of
the case. Saucier, 533 U.S. at 202. “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. The inquiry turns
on the “objective legal reasonableness of the action, assessed in
the light of the legal rules that were clearly established at the
time it was taken.” Pearson, 555 U.S. at 244 (quoting Wilson v.
Layne, 526 U.S. 603, 614 (1999)).
Although

qualified

immunity

is

normally

an

affirmative

defense, the plaintiff has the burden to negate the defense once it
has been properly raised. Brumfield v. Hollins, 551 F.3d 322, 326
(5th Cir. 2008); McClendon v. City of Columbia, 305 F.3d 314, 323
(5th Cir. 2002)(en banc). “The defendant official must initially
plead his good faith and establish that he was acting within the
scope of his discretionary authority.” Brumfield, 551 F.3d at 326
(quoting Bazan ex rel. Bazan v. Hidalgo Cty., 246 F.3d 481, 489
(5th Cir. 2001)).

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III. DISCUSSION AND ANALYSIS
A.

Objections

In their response to Defendants’ motion for summary judgment
(doc. 176), Plaintiffs object to the Court’s staying of discovery
pending the resolution of the defendants’ individual assertions of
the

qualified-immunity

defense.

Plaintiffs’

objection

is

OVERRULED.2 See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see
also Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995)(noting
that a district court may exercise its discretion in banning
discovery at the “threshold pleading stage”).
Plaintiffs also object to the use of declarations made by
Green and Baggott as summary-judgment evidence. Plaintiffs complain
“that

there

has

been

no

right

of

confrontation

and

cross-

examination to test the accuracy and truthfulness of each of the
exhibits attached.” Plaintiffs assert that both declarations “are
inadmissible hearsay which have not been shown to come within any
hearsay exception.” Plaintiffs do not point to specific statements
in Baggott or Green’s declaration that are objectionable and are
offered for the truth of the matter asserted. Plaintiffs do,
however, object to paragraphs seven through thirty-five of Green’s
declaration, noting that he “is not a competent expert in shooting

2

Once any appeals have been decided by the Fifth Circuit, the Court will
order the remaining parties to confer and submit a joint status report, outlining
the proposed deadlines for discovery, disclosures, dispositive motions, etc. The
Court will issue its initial scheduling order based on the parties’
representations in their joint status report.
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reconstruction.” Plaintiffs are correct that Green has not been
shown to be an expert “in shooting reconstruction” and the Court
would be inclined to sustain the objection if Green were to use the
declaration to offer such an expert opinion.

But the Court reads

the declaration as showing what information Green possessed during
his investigation, and thus, would assist the Court in determining
whether he acted reasonably based on his review of the evidence. As
such, Green’s declaration is admissible for that purpose. Further,
to the extent that Plaintiffs object to Baggott and Green’s use of
declarations “in lieu of affidavits,” the objection is overruled as
the declarations have been made under the penalty of perjury. See
28

U.S.C.

§

1746.

Plaintiffs’

objections

related

to

the

declarations are OVERRULED.
Next, Plaintiffs object the “unsworn audiotaped interviews of
Officers Hoeppner, Hanlon and Hardin, the ‘Critical Police Incident
Response Forms’ of Officers Chambers, Gonzales and Gierling, as
well as the case notes of Detectives Baggott and Goodwin . . . .”
But Plaintiffs acknowledge that all of the documents were obtained
through public-information requests. As such, records would be
admissible. See Fed. R. Evid. 803(8). Further, the public documents
have not been offered for the truth of the matter asserted, but for
the information contained in the documents that would show the
information

and

evidence

available

to

the

detectives

when

conducting the investigation. As Defendants point out, Plaintiffs
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attached “22 of the 26 exhibits” complained-of by Plaintiffs in
their Rule 7 Reply Appendix for purposes other than to prove the
truth of the matter asserted. And although Defendants have not
shown that Green is the records’ custodian or qualified witness,
and thus,
records

the proper official to authenticate the records, such
would

likely

be

admissible

at

trial

if

properly

authenticated under the business-records exception. See id., at
803(6); see also Lee v. Offshore Logistical & Transp., L.L.C., 859
F.3d 353, 355 (5th Cir. 2017), as revised (July 5, 2017)(noting
that when making a summary-judgment determination, a court may
consider evidence that could be presented in an admissible form at
trial, although not presently in an admissible form).

Plaintiffs’

objections are OVERRULED.
Plaintiffs and Defendants, alike, appear to object to the
factual summaries of the opposing parties. Such objections are
OVERRULED. The factual summaries are not evidence and were not
considered as such by the Court.
In Defendants’ objections two through seven, they ask the
Court to strike or disregard several assertions made by Plaintiffs,
where Plaintiffs have either added claims not previously raised or
make “wild accusations” not supported by the evidence. To that end,
the Court has either disregarded the assertions or addressed them
further

in

this

order.

Finally,

Defendants

object

to

the

declarations made by Plaintiffs’ two experts. The Court SUSTAINS
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the

objections

for

the

reasons

stated

under

the

Court’s

“Conspiracy” section of this order.
B.

Fourth-Amendment Claims

1.

Warrant

Plaintiffs allege that Green and Baggott failed to obtain a
warrant before searching the Waller’s property. (See Pls.’ 2d Am.
Compl. (doc. 45) 25.) Plaintiffs further allege that Green and
Baggott “misrepresented to the magistrate the facts necessary to
obtain a warrant which was not obtained until well after the crime
scene had been throughly fouled and evidence destroyed.” (Id.) In
that regard, Plaintiffs complain of the wording used in the searchwarrant affidavit based on information Green relayed to Detective
Goodwin. (See Pls.’ Resp. to Mot. Summ. J. (doc. 176) 31-32.) For
example, Plaintiffs complain that the affidavits are misleading, in
part, because they state that: (1) Kathy Waller is a “suspected
party”; (2) she “has possession of and is concealing evidence of a
homicide at said suspected place”; (3) the officers “inadvertently
began searching 404 Havenwood Lane”; (4) the officers “encountered
a subject who was armed with a handgun standing near the corner of
the home”; and (5) the officers “identified ‘theirselves’ as police
officers.” (Id. at 32)(emphasis in original). Plaintiffs also state
that the “search warrant was knowingly falsified . . . so officers
could take third-parties through the residence and look for ‘dirt’
or uncomplimentary matters regarding the Wallers.” (Id.)
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Bearing in mind the principles of qualified immunity, the
Court will first determine whether Defendants violated the Fourth
Amendment by providing false information in the affidavit in
support of the warrant application. When a plaintiff challenges the
veracity of statements contained in a search-warrant affidavit in
the context of a § 1983 claim, the challenge is examined under the
Franks standard. See Melton v. Phillips, 837 F.3d 502, 506-07 (5th
Cir. 2016), pet. for reh’g en banc granted by, No. 15-10604, 2017
WL 629267, at *1 (5th Cir. Feb. 15, 2017).

Under 42 U.S.C. § 1983,

"an officer is liable for swearing to false information in an
affidavit in support of a search warrant, provided that: (1) the
affiant knew the information was false or [acted with] reckless
disregard for the truth; and (2) the warrant would not establish
probable cause without the false information." Melton, 837 F.3d at
506-07 (quoting Hart v. O'Brien, 127 F.3d 424, 448-49 (5th Cir.
1997), abrogated on other grounds by Kalina v. Fletcher, 522 U.S.
118 (1997)).“[A] warrant affidavit must set forth particular facts
and circumstances underlying the existence of probable cause, so as
to allow the magistrate to make an independent evaluation of the
matter.” Franks v. Delaware, 438 U.S. 154, 165 (1978). The Fourth
Amendment requires that the affiant bring forth a truthful-andfactual showing sufficient to comprise probable cause. See id. at
165-66. The Supreme Court, however, recognized that a truthful
showing does not require “that every fact recited in the warrant
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affidavit is necessarily correct, for probable cause may be founded
upon hearsay and upon information received from informants, as well
as

upon

information

within

the

affiant's

own

knowledge

that

sometimes must be garnered hastily.” Id. at 165.
First, Green appears to argue that he cannot be held liable
for any false information contained in the warrant affidavit
because

he

did

not

sign

the

warrant

affidavit

or

warrant

application. (See Defs.' Reply in Supp. of M. Summ. J. (doc. 186)
14.)
or

Green is correct–-generally an officer who does not prepare

sign

the

warrant

affidavit

may

escape

liability--but

the

officer's lack of signature is not an absolute bar for recovery.
See Melton, 837 F.3d at 507("[I]n Hart, . . . we held that Franks
liability may

extend to government officials who are not the

affiants.")(citing Hart v. O'Brien, 127 F.3d at 448-49); see also
id., at 513 (Elrod, J., dissenting)(noting that under Fifth Circuit
precedent

“an

officer

cannot

be

liable

under

Franks

without

providing incorrect information ‘for use in an affidavit in support
of a warrant.’”)(citation omitted)). The Court in Melton explained
that "Franks 'left open the possibility that a search or arrest
violates the Fourth Amendment where the affiant relies in good
faith on deliberate or reckless misstatements by another government
official." Id. (quoting Hart, 127 F.3d at 448).
In the instant case, Detective Goodwin relied on information
relayed to him by Green in preparation of the warrant application,
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and Goodwin signed an affidavit based on Green's statements. Here,
Green was involved in the preparation of the warrant, despite not
being the detective that signed it. In that regard, the warrant
affidavit prepared by Goodwin appears to have been solely based on
the information provided by Green. Thus, the Court sees no reason
to

depart

from

the

Hart

decision

and

allow

Green

to

escape

liability solely because he did not sign the warrant affidavit. See
Hart, 127 F.3d at 448-49 ("A governmental official violates the
Fourth Amendment when he deliberately or recklessly provides false,
material information for use in an affidavit in support of a search
warrant, regardless of whether he signs the affidavit."). Doing so
would allow government officials to escape liability by choosing
not to sign the warrant affidavit or application despite knowingly
providing false information to the affiant.
To the extent that Plaintiffs allege that Green provided false
information to Goodwin for use in the warrant affidavit, Plaintiffs
must show that: (1) Green knew the information he provided to
Goodwin was false or that he acted with reckless disregard for the
truth; and (2) the

warrant would not establish probable cause

without the false information. See Melton, 837 F.3d at 506-07
(citations

omitted).

Plaintiffs

claim

that

Baggott

and

Green

“misrepresented to the magistrate the facts necessary to obtain a
warrant . . . .” (Pls.’ 2d Am. Compl. (doc. 45) 25, ¶ 90.) In that
regard, Plaintiffs complain of the wording used in the searchORDER ON MOTION FOR SUMMARY JUDGMENT - Page 16
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warrant affidavit that was prepared by Goodwin, but based on
information provided by Green. (See Pls.’ Resp. to Mot. Summ. J.
(doc.

176)

31-32.)

As

noted,

Plaintiffs

complain

that

the

affidavits are misleading, in part, because they state that: (1)
Kathy Waller is a “suspected party”; (2) she “has possession of and
is concealing evidence of a homicide at said suspected place”; (3)
the officers “inadvertently began searching 404 Havenwood Lane”;
(4) the officers “encountered a subject who was armed with a
handgun standing near the corner of the home”; and (5) the officers
“identified ‘theirselves’ as police officers.” (Id. at 32)(emphasis
in original). Plaintiffs also state that the “search warrant was
knowingly falsified . . . so officers could take third-parties
through the residence and look for ‘dirt’ or uncomplimentary
matters regarding the Wallers.” (Id.)
Despite conclusory assertions to the contrary, Plaintiffs fail
to submit any summary-judgment evidence to support their claims.
Even if the Court accepts that the information relayed by Green to
Goodwin for use in the warrant affidavit was false, Plaintiffs have
failed to submit any evidence that would support their claim

that

Green knew the information was materially false at time he relayed
it to Goodwin, or that he acted with reckless disregard for the
truth. Conversely, Plaintiffs and Defendants have each submitted
evidence that supports that Green arrived over an hour after the
shooting, gathered information without entering the crime scene,
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then went to the Major Case office to interview Hoeppner and
Hanlon. (See Pls.’ Reply Appx. (doc. 150) 250; see id. at 260; see
also Defs.’ Appx. (doc. 155) 194-202.) And from the evidence
submitted, it appears that Green provided Goodwin with the details
necessary to procure a warrant before he interviewed Hoeppner and
Hanlon. (See Defs.' Appx. (doc. 155) 162.) According to Goodwin's
notes, he met with Green at approximately 4:00 a.m. to gather the
details needed for the search warrant. (Id.)

But Green began his

first interview of the officers who were present during the
shooting at approximately 4:21 a.m. (Id. at 196.)
When Green arrived at the Waller residence at 2:20 a.m., he
noticed that Hoeppner and Hanlon had been placed in separate police
cars, yellow tape was placed around the perimeter of the crime
scene, and there were no officers inside the marked-off area. (Id.
at 195-96.) According to Green, "[t]his is an indication that there
was no conspiracy to cover up details or to invent a shared
description of events." Green claims that he performed "a few tasks
in the neighborhood outside of the Waller property before he left
. . . and returned to the FWPD Major Case Office where he spent a
couple of hours conducting interviews of Officers Hoeppner and
Hanlon." (Defs.' Br. (doc. 154) 4.) While at the crime scene, Green
removed the dash cam video from the police cars of Hoeppner and
Hanlon, and inspected their weapons by counting the rounds of
ammunition remaining in each gun. Green maintains that he did not
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 18
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enter the crime scene before a warrant was issued because entry was
not authorized without a warrant. (See Defs.' Appx. (doc. 155)
196.)

Therefore,

Plaintiffs

fail

to

show

how

Green

acted

unreasonably in gathering information for use in the warrant
affidavit, nor do they show that he entertained serious doubts as
to the truthfulness of the information relayed to Goodwin.
Further,
Amendment

the

even

if

search
it

warrant

contained

did
false

not

violate

the

information

in

Fourth
it.

To

determine whether the search-warrant affidavit violated the Fourth
Amendment, the Court must “set aside the false allegations and
determine

whether

[sufficient]

to

‘the

establish

affidavit's
probable

remaining

cause.’”

content

United

States

is
v.

Womack, No. 15-31096, 2017 WL 89031, at *4 (5th Cir. Jan. 9, 2017),
cert.

denied,

No.

16-1219,

2017

2017)(citing Franks, 438 U.S. at

WL

1365574

(U.S.

May

15,

155–56)). "A probable cause

determination is a practical, common-sense decision as to whether,
given all the circumstances set forth in the affidavit, there is a
fair probability that contraband or evidence of a crime will be
found in a particular place." United States v. Thomas, 627 F.3d
146, 159 (5th Cir. 2010)(citation omitted). Here, it is undisputed
that Jerry Waller came through his garage holding a gun when he was
confronted by Hoeppner. The parties also do not dispute that
Hoeppner subsequently shot and killed Waller. And Plaintiffs allege
that Waller complied with Hoeppner's orders to drop the weapon and
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 19
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placed the gun on his car, having never grabbed the weapon again.
But defendants Hoeppner and Hanlon claim that, although Waller put
his gun on the car, he grabbed it and turned towards Hoeppner just
before Hoeppner fired his weapon.
Regardless of which of the parties' version of facts is
correct, there was still probable cause to believe that evidence of
a

crime–-e.g.,

the

deceased

homeowner's

body,

missing

lapel

microphone, shell casings and projectiles, etc.--was present at the
Waller residence.

Thus, even if the complained-of language in the

warrant affidavit were stricken, there still would have been
probable cause to support the magistrate's issuance of a search
warrant.

Accordingly, the Court concludes that Plaintiffs’ claim

that Green violated the Fourth Amendment for his involvement in
procuring a search warrant based on the alleged false information
that he provided should be and hereby is DISMISSED.
To the extent Plaintiffs claim that Baggott is liable for her
involvement in the warrant preparation, such a claim is DISMISSED.
Plaintiffs fail to provide any summary-judgment evidence that would
show that Baggott provided any false information to Detective
Goodwin for use in his warrant affidavit. (See Defs.' Appx. in
Supp. M. Summ. J. (doc. 155) 150; see id. [Baggott's Dec.] at 192.)
2.

Invasions of Privacy

To the extent that Plaintiffs intend to bring a claim against
Green and Baggott for the police-union attorneys’ having access to
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 20
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the crime scene minutes after the shooting of Waller, (see 2d Am.
Compl. (doc. 45) 17), such a claim is DISMISSED. Plaintiffs

claim

“that within fifteen minutes of this police shooting, an attorney
from the police union arrived prior to police investigators and .
. . was given full access to the crime scene.” (See Am. Compl.
(doc. 41) 9.) Plaintiffs fail to submit, however, any summaryjudgment evidence that would show that either Green or Baggott
allowed the attorneys to enter the crime scene before the search
warrant was issued. And it appears that Baggott never went to the
Waller residence, nor participated in any investigative search.
(See Defs.’ Appx. (doc. 155) 190, ¶ 6.)
From the evidence submitted, it appears that Green was the
detective who allowed an attorney to be present at the crime scene,
but not “fifteen minutes” after the shooting or before a search
warrant issued.

The shooting occurred at approximately 1:06 a.m.,

but Green claims he did not arrive at the crime scene until
approximately 2:20 a.m., which appears to be supported by other
officers’ accounts and police logs. (See id., at 195; see also
Pls.’ Reply Appx. (doc. 150) 250, 260.)

Although Plaintiffs claim

that union attorneys were given access to the crime scene fifteen
minutes

after

the

shooting

and

before

investigators

arrived,

Plaintiffs do not claim that Green granted access before his
arrival, nor do Plaintiffs submit any evidence that would show
Green did so.

The Court does not question whether a police-union

ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 21
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attorney was present near the crime scene minutes after the
shooting,

(see

Pls.’

Reply

Appx.

(doc.

150)

388-89.),

but

Plaintiffs fail to show that the attorney had actual access to the
crime scene “minutes” after the shooting and before a warrant
issued.

None

of

the

various

critical-incident

reports

from

paramedics or officers on the scene mention that an attorney was
present inside the crime-scene area. (See id. at 144-50, 250-61.)
Green also states that when he arrived at the Waller’s residence,
the crime-scene’s perimeter was marked by yellow tape and no one
was present inside the perimeter. (See Defs.’ Appx., at 195-96.)
According to Green, he “did not enter the blocked off crime scene
. . . because there was not yet a search warrant that would have
authorized entering the property. Id.; see Mincey v. Arizona, 437
U.S. 385, 395 (1978)(holding that “the warrantless search of [the
defendant's] apartment was not constitutionally permissible simply
because a homicide had recently occurred there”). And according the
crime-scene log, (see id., at 250-51), the police-union attorney
“entered” the crime scene at the time of the walkthrough at
approximately 9:24 a.m.3

And although it may be disturbing–-and

frankly, an alarming police practice–-that a union attorney may

3
The “Crime Scene Log” appears to show everyone who entered the crimescene area under the subheading: “All Personnel At Scene (Include above personnel
and all persons entering or assigned to crime scene)” (emphasis added). As
previously noted, the “Crime Scene Log” would likely fall within the businessrecord exception to the rule against hearsay, and thus, be admissible at trial
if properly authenticated. See Fed. R. Evid. 803(6).

ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 22
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have been allowed to discuss the events with Hoeppner and Hanlon
before Green interviewed them, the Court is not aware of such
discussions implicating the Fourth Amendment rights of Plaintiffs
when the discussions appear to have taken place outside of the
restricted crime-scene area. Thus, Plaintiffs’ claim that Green
granted the police-union attorneys access to the crime scene before
Green (an investigator) arrived must also be dismissed.
Liberally construed, Plaintiffs appear to generally allege
that Green allowed Hoeppner and Hanlon's attorneys to have access
to the crime scene. (See 2d Am. Compl. (doc. 45) 17) In their
response to Defendants’ motion for summary judgment, Plaintiffs
expand upon their theory by arguing that Green’s allowing of third
parties–-the officers’ attorneys--to be present during execution of
a search warrant violated the Fourth Amendment. (See Pls.' Resp. in
Opp. (doc. 176) 35.) Plaintiffs further contend that it was clearly
established at the time that Green allowed the officers' attorneys
to "walk-through" the crime scene, that such a third-party presence
would violate the Fourth Amendment. Green does not dispute that he
allowed the attorneys to be present during the walk-through with
Hoeppner and Hanlon, but Green claims that he did so to protect the
officers' constitutional rights. (See Defs.' Reply (doc. 186)
15-16; see also Defs.' Appx. [Green Dec.](doc. 155) 196-97.) Green
points out that the two officers "faced potential charges and . .
. were entitled to legal counsel because of this." (Id.) Thus,
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 23
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Green contends that the officers "had a Fifth Amendment right
against self-incrimination and a Sixth Amendment right to counsel."
(Id.)
Plaintiffs contend that Wilson v. Layne, 526 U.S. 603 (1999),
supports their claim that Green violated the Fourth Amendment by
allowing Hoeppner and Hanlon's attorneys to be present during
Green's walk-through questioning of the officers at the crime scene
even after the search warrant was issued. Green counters by arguing
that Wilson is distinguished by the facts present here, and thus,
Plaintiffs exaggerate Wilson's reach. In Wilson, the Supreme Court
held that allowing "members of the media or other third parties
into a home during the execution of a warrant when the presence of
the third parties in the home [is] not in aid of the execution of
the warrant" violates the Fourth Amendment. Id. at 614. The court
recognized, however, that "the presence of third parties during the
execution

of

a

warrant

may

in

some

circumstances

be

constitutionally permissible." Id. at 613. Therefore, the presence
of a third party during execution of a warrant is not a bright-line
violation of the Fourth Amendment. See id. (noting that the media
photographers were present during the warrant execution for their
own purposes and not present for the protection of the officers).
Thus,

Wilson

suggests

that

a

third-party

presence

for

the

protection of the officers may be constitutionally permissible.
Turning to the present case, Green argues that the Fifth and
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 24
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Sixth Amendments necessitated that Hoeppner and Hanlon have legal
counsel present when questioned by Green at the crime scene. Green
also states that the two officers faced “potential charges” at the
time of the walkthrough for their role in Waller’s death. (See
Defs.’ Appx. (doc. 155) 196-97, ¶ 11.) This argument is bolstered
by the fact that Green gave the evidence gathered during his
investigation to a criminal district attorney to present to a grand
jury. The crux of Plaintiffs’ argument, however, is that Green
allowed Hoeppner and Hanlon’s legal counsel to “participate[] in
the walk-through despite . . . [knowing] that [the] warrant . . .
was only directed to law enforcement officers and not to any thirdparties.” (Pls.’ Resp. (doc. 176) 35.) The parties do not cite any
cases that address a lawyer’s presence at a crime scene, but the
constitutionality of such a presence must be examined.
Under the Fourth Amendment, a search is unconstitutional “[i]f
the scope of the search exceeds that permitted by the terms of a
validly issued warrant or the character of the relevant exception
from the warrant requirement . . . .” Wilson, 526 U.S. at 611
(citation omitted).

“While this does not mean that every police

action while inside a home must be explicitly authorized by the
text of the warrant . . ., the Fourth Amendment does require that
police

actions

objectives

of

in
the

execution
authorized

of

a

warrant

intrusion.”

be

related

Id.

Other

to

the

courts,

including the Supreme Court in Wilson, have noted that a thirdORDER ON MOTION FOR SUMMARY JUDGMENT - Page 25
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party presence during execution of a warrant is not necessarily
proscribed by the Fourth Amendment.4 The distinction, however, lies
within the purpose of the third-party’s presence at the crime
scene. Here, the purpose of the presence of Hoeppner and Hanlon’s
attorneys at the crime scene during a walkthrough was for the
protection of the officers. And although an argument could be made
that the attorneys were present under a self-serving interest, see
id., at 613, a valid law-enforcement purpose was served by the
attorneys’ presence. See Sampson v. Gee-Cram, 655 F. App'x 383, 391
(6th Cir. 2016)(unpublished) (noting that “[n]othing in . . .
Wilson suggests that the mere existence of some self-interest on
the part of the [third party]

. . . rendered the defendant

officers' actions unconstitutional.”)
As Green points out, he “certainly needed to conduct an
investigation of Mr. Waller’s shooting death.” (Defs.’ Reply (doc.
186) 15.) Detective Green brought the officers back out to the
crime scene to conduct a walkthrough to likely refresh the memory
of

the

officers

and

gain

a

better

understanding

of

the

4
See, e.g., Wilson, 526 U.S. at 611-12 (“Where the police enter a home
under the authority of a warrant to search for stolen property, the presence of
third parties for the purpose of identifying the stolen property has long been
approved by this Court and our common-law tradition.”); Bellville v. Town of
Northboro, 375 F.3d 25, 33 (1st Cir. 2004)(noting that civilian presence during
execution of a warrant does not automatically violate the Fourth Amendment, but
“the officers must have some demonstrable need for the presence of the civilian”
and “[t]he civilian must have been serving a legitimate investigative
function.”); United States v. Sparks, 265 F.3d 825, 832 (9th Cir.2001)(“Where the
civilian participating in the execution of a search warrant is the victim of a
theft who has been requested by police to point out property that has been stolen
from the victim, the courts have unanimously held that the civilian's presence
did not affect the propriety of the search.”)(citation omitted).

ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 26
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circumstances

surrounding

the

police

shooting,

while

also

visualizing the content of the officers’ statements. Given the
“potential charges” that the officers faced, the officers may not
have returned to the scene, or have spoken openly with Green about
the events in question. Without the officers’ cooperation (aided by
the presence of their legal counsel), Green would likely not have
been able to conduct as thorough of an investigation as he did.
Thus, the attorneys’ presence during the walkthrough was reasonable
and likely furthered Green’s investigative objectives. See Roaden
v. Kentucky, 413 U.S. 496, 501 (1973)(cautioning that the Fourth
Amendment

should

not

be

read

in

a

vacuum

and

that

what

is

reasonable in one setting may be unreasonable in another); see also
Hunsberger v. Wood, 583 F.3d 219, 221 (4th Cir. 2009) (noting that
Wilson is not a blanket prohibition and “that courts must undertake
case-by-case inquiries into whether a third party's presence is
‘related to the objectives of the authorized intrusion.’”)(quoting
Wilson, 526 U.S. at 611); Cf. Bills v. Aseltine, 958 F.2d 697, 702
(6th Cir. 1992)(finding a Fourth Amendment violation because “[the
civilian] was present, not in aid of the officers or their mission,
but for his own purposes involving the recovery of stolen . . .
property not mentioned in any warrant.”)(emphasis added).
Further, when addressing a search under the Fourth Amendment,
“the ultimate measure of the constitutionality of a governmental
search is ‘reasonableness.’” Vernonia Sch. Dist. 47J v. Acton, 515
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 27
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U.S. 646, 652 (1995).

And “where there was no clear practice,

either approving or disapproving the type of search at issue . . .
whether a particular search meets the reasonableness standard ‘is
judged by balancing its intrusion on the individual's Fourth
Amendment

interests

against

its

promotion

of

legitimate

governmental interests.’” Id. at 652-53 (citation omitted). Under
the facts presented here, none of the parties argues that Hoeppner
or Hanlon had a right to be present during the walkthrough. The
search warrant was directed to “any Peace Officer of Tarrant
County” and allowed for the officers “[t]o photograph and diagram
the home and property for recording the crime scene.” (See Pls.’
Reply Appx. (doc. 150) 155.) Having the officers present to answer
Green’s questions assisted Green’s investigation by allowing him to
see exactly where the officers said they were positioned as the
shooting unfolded. The lawyers’ presence simply ensured that the
constitutional rights of the officers were protected. There is no
evidence submitted that would suggest that the lawyers were allowed
in any area outside of the garage, where the shooting occurred.
Further, there is no evidence to suggest that the lawyer was
allowed to search the home or participate in looking for evidence
of a crime, nor is there any evidence that the lawyer used any kind
of

recording

device

while

present.

Thus,

when

examining

the

totality of the circumstances and balancing the minimal intrusion
of Green’s allowing the lawyer to be present during the walkthrough
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 28
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against the protection of constitutional rights of the officers,
the

Court

concludes

that

Green’s

actions

were

objectively

reasonable, and thus, did not violate the Fourth Amendment.
Recognizing that the nature of the attorneys’ presence during
the crime-scene walkthrough is a close constitutional question, the
Court will assume, arguendo, that the presence of legal counsel at
the crime-scene walkthrough violated the Fourth Amendment. Even
assuming

that

Green

violated

the

Fourth

Amendment,

he

is,

nonetheless, entitled to the protection of qualified immunity
because the nature of the intrusion was not clearly established at
the time of the violation. For a right to be clearly established,
it “must be sufficiently clear that every reasonable official would
have understood that what he is doing violates that right . . .
[meaning that] existing precedent must have placed the statutory or
constitutional question beyond debate.” Reichle v. Howards, 566
U.S. 658, 664 (2012)(citations omitted)(internal quotation marks
and

alterations

omitted).

The

clearly-established

standard,

however, does not require that a case be directly on point, but the
official must be given fair warning that his actions violate the
law.

Morgan v. Swanson, 659 F.3d 359, 412 (5th Cir. 2011)(en

banc)(Elrod, J., concurring).
between

vindication

of

This standard “protects the balance

constitutional

rights

and

government

officials' effective performance of their duties by ensuring that
officials can ‘reasonably . . . anticipate when their conduct may
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 29
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give rise to liability for damages.’”

Reichle, 566 U.S. at 664.

Plaintiffs rely exclusively on Wilson and Carr v. Montgomery
County, Texas, 59 F. Supp. 3d 787 (S.D. Tex. 2014), to support
their contention that the presence of the officers’ attorneys
violated the Fourth Amendment, and that a prohibition of such a
presence was clearly established. Although Carr was decided after
the events in question, the facts are similar to Wilson, but
distinguishable from the facts presented here. In both Wilson and
Carr,

the

third-party

presence

not

mentioned

in

the

warrant

involved media members who filmed the officers’ execution of the
search.5 Both decisions concluded that because the media members
were not named in a warrant and were present for private purposes,
such a third-party presence violated the Fourth Amendment. Neither
case addressed whether a third-party presence, such as a lawyer,
would be deemed a Fourth Amendment violation if such a presence
were needed to protect the constitutional rights of the officers.
Nevertheless, the Court must determine whether existing precedent
would have given Detective Green “fair warning” that such a thirdparty presence was constitutionally impermissible. When determining
whether an officer was provided fair warning that his actions
violated a constitutional right, the Court must first look to the

5
It should be noted that Carr addressed a warrantless search in which media
members were allowed to accompany the searching officers, but Wilson involved
media members who were not listed in a search warrant, but accompanied the
officers during the search.

ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 30
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Supreme Court and existing Fifth Circuit precedent. Morgan, 659
F.3d at 412 (citing Pearson, 555 U.S. at 244).
only

consider

other

circuits

‘in

the

The Court “need

absence

of

directly

controlling authority.’” Id. at 412-13 (citations omitted).
As previously indicated, the parties have not cited any cases
that address a lawyer’s presence at the crime scene. Having found
no Supreme Court or Fifth Circuit cases on point, the Court looked,
but found only one other case addressing the presence of a lawyer,
and that was during enforcement of a writ of execution. In Bray v.
Planned Parenthood Columbia-Willamette, Inc., 746 F.3d 229 (6th
Cir. 2014), United States marshals executed a writ to seize
property from Bray to satisfy a judgment obtained against him by
Planned Parenthood. The writ authorized “a representative” from
Planned Parenthood to participate in the execution to assist in
identification

of

the

property

subject

to

seizure.

Planned

Parenthood sent “multiple unauthorized representatives,” including
attorneys

who

videotaped

the

inside

of

the

home

during

the

execution. The Sixth Circuit concluded that because “the presence
of additional representatives of [Planned Parenthood] was not
authorized, and because the writ made no provision for the use of
a camera, it was a violation of the Fourth Amendment to permit the
organization to film the home.” Id. at 237. Relying on Wilson, the
Court concluded that
the right to be present in a home does not necessarily
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 31
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entitle police to bring photographers with them. Id. In
this case, the unauthorized filming of the Brays' home
was particularly unreasonable because the raid was
unannounced and the filming occurred within the home
itself. Moreover, because of the location and nature of
the filming, the use of the camera posed a heightened
risk of intimidating the family and capturing its
intimate, unguarded moments.
Id. Although the Court concluded that the Fourth Amendment had been
violated, the Court further concluded the constitutional rights
were not clearly established at the time of the violations. See id.
at 238 (reasoning that “the legal and factual scenario presented in
this action is not identical to any the Sixth Circuit or the
Supreme

Court

reasonable

has

officer

previously
could

have

addressed,
believed

.

.

that

.
his

[and

thus]

conduct

a

was

lawful.”).
Although Bray involved a third-party lawyer’s presence during
a writ execution, the facts in Bray are more closely aligned with
the facts in Wilson and Carr.

Each case involved a third party who

intruded upon individual constitutional rights by filming the
event. Under each scenario, the third party was allowed to roam
throughout the residence for only a private purpose. Here, the
attorney present was confined to the garage, where the shooting
occurred, and was present only to preserve the constitutional
rights of the officers being questioned during the walkthrough. And
there is no evidence submitted suggesting that the attorney filmed
any portion of the walkthrough, or that he participated in the

ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 32
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search of the home. Thus, it was reasonable for Green to believe
that a lawyer present at the crime scene–-but contained strictly to
the garage area--did not violate a constitutional right of Kathy
Waller,

in

light

of

the

fact

that

Green

was

authorized

to

investigate the crime scene under a valid search warrant. At best,
Green

should

have

recognized

the

competing

constitutional

interests, but even so, could not have been expected to determine
whose rights were superior under the circumstances. Accordingly,
the Court concludes that Green did not have “fair warning” that his
conduct

violated

precedent.

a

clearly-established

right

under

existing

See Pearson, 555 U.S. at 244 (“The principles of

qualified immunity shield an officer from personal liability when
an officer reasonably [would have believed] that his or her conduct
complies with the law.”).
Next, Plaintiffs appear to allege that Baggott violated the
Fourth Amendment by invading Kathy Waller’s privacy when Baggott
“surreptitiously” recorded her interview with Kathy Waller at
Harris Hospital emergency room. (See 2d Am. Compl. (doc. 45) 26, ¶
92.)

Besides

communications

the

fact

that

in

which

the

police
officers

officers
are

a

may

intercept

party

to

the

communications, see 18 U.S.C. § 2511(2)(c), Plaintiffs fail to
demonstrate

that

Waller’s

statements

to

Baggott

in

a

busy

emergency-room area are protectable under the Fourth Amendment. “In
order to claim the Fourth Amendment's protection, [the aggrieved
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 33
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party] must have ‘a legitimate expectation of privacy in the
invaded place.’” United States v. Iraheta, 764 F.3d 455, 461 (5th
Cir. 2014)(quoting
(5th

Cir.2011)).

United States v. Hernandez, 647 F.3d 216, 219
The

aggrieved

party’s

“expectation

must

be

‘personal[]’ and ‘reasonable,’ and it must have a ‘source outside
of the Fourth Amendment, either by reference to concepts of real or
personal property law or to understandings that are recognized and
permitted

by

society.’”

aggrieved party’s standing

Id.

(citations

omitted).

Thus,

the

“depends on 1) whether [such a party]

is able to establish an actual, subjective expectation of privacy
with respect to the place being searched or items being seized, and
2) whether that expectation of privacy is one which society would
recognize as [objectively] reasonable.” Id. (citations omitted).
Under the facts presented here, Detective Baggott recorded a
brief interview of Kathy Waller while in the emergency room at
Harris Hospital. (See 2d Am. Compl. (doc. 45) 16-17, 26.) From
listening to the audio recording of the interview, it appears that
Baggott was a party to the interview. (See Defs.’ Appx. (doc. 155)
204.) None of the parties contest that Baggott conducted this
interview. (See id., at 190; see also Pls.’ Reply Appx. (doc. 150)
164.) In her declaration, Kathy Waller acknowledges that Baggott
was not in a police uniform, but that she “came to the hospital
claiming that she was a Fort Worth police detective.” (Pls.’ Reply
Appx. at 165.) Plaintiffs argue, however, that Baggott did not
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 34
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obtain consent to record the interview. But the failure to obtain
consent is not dispositive here.
Under established law, law-enforcement officers need not
obtain consent before making audio recordings of their–-or of their
informant’s--conversations with others. See 18 U.S.C. § 2511(2)(c);
see also United States v. White, 401 U.S. 745, 751 (1971)(noting
that law enforcement’s recording of conversations had with a
defendant, but unbeknownst to that defendant, “[did] not invade the
defendant's constitutionally justifiable expectations of privacy”);
United States v. Brathwaite, 458 F.3d 376, 380 (5th Cir. 2006)(“It
is clear that audio surveillance by or with the consent of a
government informant does not constitute a search.”) Here, Kathy
Waller declares that Baggott claimed to be a police detective, yet
Waller openly discussed the events of the day. From listening to
the audio of the interview, there appears to have been numerous
individuals present in the emergency-room area, as other voices and
activities can be heard from the audio recording. Plaintiffs fail
to show that Kathy Waller had a reasonable expectation of privacy
of any statements she made during the interview with Baggott. See
Katz v. United States, 389 U.S. 347, 361 (1967)(Harlan, J.,
concurring)(noting that “statements that [one] exposes to the
‘plain view’ of outsiders are not ‘protected’ because no intention
to

keep

them

to

himself

has

been

exhibited,

[and]

.

.

.

conversations in the open would not be protected against being
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 35
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overheard, for the expectation of privacy under the circumstances
would be unreasonable.”). Accordingly, Plaintiffs’ claims against
Baggott for the recording of the interview with Waller must be
dismissed.
Next, the plaintiffs appear to allege that Green and Baggott
committed an invasion of privacy because each was “present at the
autopsy and published confidential medical information about Jerry
Waller that was in no way related to the Jerry Waller death by
gunfire." (See Pls.' 2d Am. Compl. (doc. 45) 26, ¶ 91.) But
Plaintiffs appear to clarify that it was actually Chief Halstead
that

published

the

private

medical

information

in

his

press

conference. (See Pls.’ Resp. (doc. 176) 43.) Plaintiffs do not,
however, address such a claim by citing case law akin to the
alleged violation or even a statute for support. Therefore, it is
unclear under what theory Plaintiffs seek recovery.

The Court–-

like the defendants--understands the plaintiffs to allege that
Green and Baggott committed an invasion of privacy by publishing or
releasing

medical

information,

and

thus,

violated

the

Health

Insurance Portability and Accountability Act of 1996 (“HIPAA”),
Pub.L. No. 104–191, 110 Stat.1936 (1996)(codified primarily in
Titles 18, 26 and 42 of the United States Code). The Fifth Circuit
has previously stated that no private cause of action exists for
HIPAA enforcement. See Acara v. Banks, 470 F.3d 569, 572 (5th Cir.
2006)(holding that “there is no private cause of action under HIPAA
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 36
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and

therefore

no

federal

subject

matter

jurisdiction

over

[Plaintiffs’] asserted claims.”). Accordingly, the Court dismisses
Plaintiffs’ claims against Green and Baggott for the alleged
release or publishing of Jerry Waller’s medical information.
Plaintiffs also appear to add an allegation in their response
brief that Green and Baggott violated the Fourth Amendment by
invading Kathy Waller’s privacy by accessing her medical records.
(See Pls.' Resp. (doc. 176) 42.) Although Plaintiffs do not cite
any case law to support their new claim, it appears that Plaintiffs
contend that Green and Baggott did not have probable cause to
believe that Kathy Waller "had any involvement in the shooting,"
and thus, violated her right to privacy by requesting her medical
records. (See Pls.' Resp. at 44.) But as Defendants point out,
claims that are not alleged in the amended complaints, but added in
a

response

to

a

motion

for

summary

judgment

should

not

be

considered by the Court and must be dismissed. See Cutrera v. Bd.
of Supervisors, 429 F.3d 108, 113 (5th Cir. 2005)("A claim which is
not raised in the complaint but, rather, is raised only in response
to a motion for summary judgment is not properly before the
court."). As such, the Court concludes that the new invasion-ofprivacy

claim

against

Baggott

and

Green

for

accessing

Kathy

Waller’s medical records should be and hereby is DISMISSED.
C.

Denial-of-Access Claims

The Supreme Court has recognized two types of denial-of-access
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 37
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claims: (1) a forward-looking claim, and (2) a backward-looking
claim. See Christopher v. Harbury, 536 U.S. 403, 413 (2002). Under
a forward-looking claim, the remedy sought is to enjoin the
“official action [that] is presently denying an opportunity to
litigate . . . .” Id. at 413. “The justification for recognizing
that claim, is to place the plaintiff in a position to pursue a
separate claim for relief once the frustrating condition has been
removed.” Id.

But under a backward-looking claim, the plaintiff

seeks redress for the official action that caused “the loss of an
opportunity to sue.” See id., at 414. “These cases do not look
forward to a class of future litigation, but backward to a time
when specific litigation ended poorly, or could not have commenced,
or could have produced a remedy subsequently unobtainable.” Id. “It
follows that the underlying cause of action, whether anticipated or
lost, is an element that must be described in the complaint, just
as much as allegations must describe the official acts frustrating
the litigation.” Id. at 415.
Plaintiffs have pled both forward-looking and backward-looking
denial-of-access claims against several officers including Green
and Baggott. (See generally, 2d Am. Compl. 24-28 (doc. 45)

First,

Plaintiffs plead a forward-looking claim: that their right of
access to the courts was delayed for eight months because the
officers' statements, the crime-scene photographs, and the autopsy
report were withheld from them while the shooting was being
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investigated further.
Defendants respond by pointing out that any impediment to the
filing of a lawsuit based on the withholding of evidence was
removed once the evidence was given to Plaintiffs (as they admit it
was) through their public-information requests. Thus, Defendants
insist that long before Plaintiffs filed this lawsuit, they ceased
any official action that could be said to deny Plaintiffs an
opportunity to litigate a claim for excessive force under Section
1983. After all, Defendants point out, Plaintiffs are here, before
this Court, adducing into evidence the very items they objected to
being withheld. The Court agrees. Under these facts, which are
essentially agreed to by the parties, Plaintiffs have no valid
forward-looking claim for an unconstitutional denial of access to
the courts, so Green and Baggott’s motion for summary judgment as
to Plaintiffs’ forward-looking claim is GRANTED.
Plaintiffs appear to allege a backward-looking claim against
Green and Baggott for being complicit with other officers in taking
steps to deny Plaintiffs access to the courts by violating the
integrity of the crime scene, failing to challenge inconsistencies
in Hoeppner and Hanlon’s recollection of the shooting, suggesting
answers to Hoeppner and Hanlon in an effort to hide the truth, and
destroying physical evidence. (See 2d Am. Compl. (doc. 45) ¶¶ 8990.) Plaintiffs fail to submit, however, any summary-judgment
evidence that would show that Green took steps to unlawfully deny
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the plaintiffs access to the courts, that he ignored evidence, or
that he acted unreasonably outside of his professional discretion
when questioning the implicated officers. Plaintiffs do point to
the wound on Waller’s left hand, combined with entry-and-exit wound
information in the autopsy report, to conclude that Waller could
not have been holding a gun when Hoepnner shot him, and thus,
Plaintiffs conclude, that Green ignored what the evidence should
have shown him. But Green acknowledges the lefthand wound and
declares that:
Assuming that the blood on his right palm is blood
spatter, and also recognizing that the wounds to Waller’s
left hand are inconsistent with Waller holding a gun in
his left hand at the time his hand was shot, does not
mean that Waller could not have been holding a gun at the
time a shot or shots were fired at him. I think a
reasonable possibility is that Waller may have dropped
the gun as a shot or shots were fired at him, and before
his left hand was hit or right had received splatter. If
so, then one or both of his hands, which at one time held
a gun would have been empty while other shots were fired
at Waller by Officer Hoeppner.
(Defs.’ Appx. (doc. 155) 199, ¶ 22.) In reviewing the interviews of
the officers, Green asked follow-up questions to have the officers
clarify their responses. Green further recognized the officers’
stories had some inconsistencies, but also concluded that the
stories generally matched. Green also questioned Hardin about why
he removed the gun from underneath Waller’s body. Hardin claimed
that when he arrived, he found Hoeppner and Hanlon with their guns
still pointed at Waller, and that he was told that there was a gun

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underneath Waller. Hardin stated that he removed the gun to “secure
it” from someone not known to be dead yet. Green concluded that the
securing of the weapon by Hardin was reasonable. (Id.,

¶ 28.)

Green also declares that he when arrived at the crime scene at
around 2:20 a.m., he observed that the perimeter of the crime scene
was secured by crime-scene tape and that no one was inside the
taped-off area. (Id., ¶ 6.) Green states that Hoeppner and Hanlon
were in separate squad cars, which is common practice to limit the
witnesses’ ability to discuss events with each other, and that the
fact that this had been done was an indication that there was “no
conspiracy to cover up details or to invent a shared description of
events.” (Id.) Further, upon completing his investigation, Green
gave the evidence to the district attorney’s office to examine and
present the case to a grand jury.

Simply put, the plaintiffs have

failed to show that Green unlawfully denied Plaintiffs access to
the courts nor do they show that he acted objectively unreasonably
in conducting his investigation of the shooting of Waller. Thus,
the Court concludes that Green was acting within his discretion as
a detective is entitled to qualified immunity for Plaintiff’s
backward-looking claim. Williams v. Bramer, 180 F.3d 699, 702-03
(5th Cir.), decision clarified on reh'g, 186 F.3d 633 (5th Cir.
1999)(“Qualified

immunity

shields

an

official

performing

discretionary functions from civil damages liability, provided his
actions meet the test of objective legal reasonableness.”)(citing
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 41
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Harlow, 457 U.S. at 819)).
To the extent Plaintiffs claim that Baggott took actions to
deny them access to the courts, such a claim is dismissed because
the Plaintiffs have abandoned the claim by failing to defend it in
their response to Defendants’ motion for summary judgment. See Vela
v. City of Houston, 276 F.3d 659, 678 (5th Cir. 2001)(noting that
a party abandons a claim by failing to defend such a claim against
a motion for summary judgment).
D.

Conspiracy under 42 U.S.C. § 1983

"A conspiracy may be charged under section 1983 as the legal
mechanism through which to impose liability on all defendants
without

regard

to

who

committed

the

particular

act,

but

'a

conspiracy claim is not actionable without an actual violation of
section 1983.'" Morrow v. Washington, 672 F. App’x 357, 353 (5th
Cir. 2016)(quoting

Hale,

45 F.3d at 920). When addressing a

conspiracy claim in the qualified-immunity context, the Court must
“first . . .

determine the objective reasonableness of the state

action which is alleged to have caused harm to the plaintiff.”
Id.(citation omitted). "Only if that action was not objectively
reasonable should the court then 'look to whether the officer's
actions

were

taken

pursuant

to

a

conspiracy.'"

Id.

(quoting

Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990),
abrogated on other grounds by Martin v. Thomas, 973 F.2d 449, 455
(5th Cir. 1992)).
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To the extent Plaintiffs claim that Baggott joined in the
conspiracy to deny access to the courts, such a claim is dismissed
because the Plaintiffs have abandoned the claim by failing to
defend it in their response to Defendants’ motion for summary
judgment. See Vela, 276 F.3d at 678. In that regard, Plaintiffs
make only two conclusory assertions in their response that “Baggott
clearly knew . . . [there] was an unjustified use of deadly force”
and that “Baggott falsified the affidavit.” (See Pls.’ Resp. (doc.
176) 33.) As noted previously, the evidence submitted indicates
that Baggott took no part in preparing the affidavits. Without
more, the plaintiffs have not shown that Baggott took part in the
alleged conspiracy.
Plaintiffs do, however, defend their claims against Green for
his alleged role in the cover up. (See id., at 36-42.) The Court
previously held that Plaintiffs have plausibly stated a claim that
Hoepnner violated § 1983 by using unlawful deadly force against
Jerry Waller. The Court must now examine whether Plaintiffs have
shown

that

Green

acted

objectively

unreasonably

in

his

investigative efforts, and thus, whether Plaintiffs have shown that
he conspired with others in an effort to cover up the alleged
unlawful shooting of Waller. To prevail on a claim for conspiracy
under § 1983, "a plaintiff must establish (1) the existence of a
conspiracy involving state action and (2) a deprivation of civil
rights

in

furtherance

of

the

ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 43
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conspiracy

by

a

party

to

the

conspiracy." Pfannstiel, 918 F.2d at 1187. "A claim for civil
conspiracy has five elements: (1) two or more persons; (2) have an
objective to be accomplished; (3) a meeting of the participants'
minds on the objective or course of action; (4) one or more
unlawful, overt acts; and, (5) resulting damages." Meineke Discount
Muffler, v. Jaynes, 999 F.2d 120, 124 (5th Cir. 1993)(citation
omitted).
The crux of Plaintiffs’ arguments are that Green mishandled
the investigation and ignored what the evidence showed him–-that
Waller was not holding the gun when Hoepnner shot him–-and thus,
assisted in a conspiracy to cover up the unlawful shooting. To
support their claim, Plaintiffs assert that the crime scene was not
preserved, which compromised the evidence. (See Pls.' Reply (doc.
149) 22.) Plaintiffs also claim that the crime-scene photographs
show bloody footprints,(see id.), and that the photographs depict
"clear evidence of Mr. Waller's body being re-positioned post
mortem from the bloodstains present on the garage floor." (Id. at
24.)

Plaintiffs also note that there was no blood on the gun

allegedly used by Waller, and the lack of blood shows the gun could
not have been in Waller's hand, nor underneath Waller's body after
he was shot. (See 2d Am. Compl. 12-14.) Plaintiffs point to the
amount of blood on the garage floor underneath Waller’s body versus
the lack of visible blood on the gun to support their claim. (Id.;
see also Pls.’ Reply 20, 36.) Plaintiffs infer that it would be
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unlikely that Hardin could remove the gun from underneath Waller’s
body without there being a considerable amount of blood on the gun.
Plaintiffs also reference blood smears that seem to show that
Waller’s left arm–-the one allegedly holding the gun–-had been
moved laterally.
According to Plaintiffs, the combination of the crime-scene
photographs, autopsy report, officer Hardin’s alleged removal of
the gun from underneath Waller’s deceased body, and the officers’
inconsistent statements should have been enough to show Green that
the officers involved were covering up the unlawfulness of their
actions. Plaintiffs seem to claim, and ask the Court to infer, that
Green did not conduct an impartial investigation, but took measures
to further cover up the shooting. (See generally, Pls.’ Resp. (doc.
176) 36-42.)

For example, Plaintiffs claim that Green submitted

“two

affidavits”

cryptic

that

asserted

an

investigation

was

ongoing, when he knew the investigation had been completed, and
that submission of the case to the district attorney’s office was
delayed “until November or December 2013" because of the negative
public reaction. (See id., at 36.)
To

support

their

claims,

Plaintiffs

have

submitted

the

declarations, preliminary reports, and resumes of two experts,
Edward E. Hueske and Robert W. Taylor. (See Pls.’ Resp. Appx. (doc.
177) 33-147.) The two experts give opinions about the evidence, and
each opinion closely resembles the plaintiffs’ assertions. In
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 45
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Hueske’s

report,

he

opines

that

the

evidence

supports

the

conclusion that Jerry Waller was unarmed when shot by Hoeppner.
Hueske contends that the blood spatter located on the hands and
face of Waller show that Waller was not holding a gun when shot.
(See id., at 43-45.) In his declaration, Taylor provides the legal
standard that forms the basis of his expert opinion. (See id., 74,
¶¶ 28-29.) Taylor also appears to rely heavily on Hueske’s opinion
regarding the forensic evidence, and comes to the conclusion that
“Green was either grossly incompetent in his job, or was lying to
cover-up for Officers Hoeppner and Hanlon.” (See id., at 87.)
Taylor further concludes that “Green . . . [and] other members of
the Fort Worth Police Department conspired to cover-up the wrongful
shooting death of Mr. Jerry Waller.” (Id., at 89.) In that regard,
Taylor opines that Green’s investigative report was based on “awful
investigative protocol” and that he did not act “as any other
reasonable

police

detective”

when

investigating

the

officer-

involved shooting. (Id., at 90.)
Plaintiffs have used two experts’ sworn declarations in the
form of expert reports in what appears to be an attempt to create
a material fact question regarding the reasonableness of Green’s
investigation into the shooting of Waller. But reasonableness under
a qualified-immunity analysis is a question of law not fact.

See

Williams v. Bramer, 180 F.3d 699, 703 (5th Cir.1999)(“Objective
reasonableness is a matter of law for the courts to decide, not a
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 46
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matter for the jury.”). Hueske appears to be highly qualified to
give

his

expert

reconstruction.

opinion

Hueske’s

on

blood

report

spatter

does

not

and

crime-scene

comment

on

Green’s

investigation, but does give a forensic review of the evidence from
the crime scene. Hueske’s report may assist a factfinder in
determining what likely happened in the garage, but does not
address whether Green was reasonable in his investigation.
Taylor’s report, however, does address the reasonableness of
Green’s actions, and is based on Taylor’s review of the evidence
and Hueske’s report. Taylor outlines the legal standard in which he
followed, (See Pls.’ Appx. (doc. 177) 74-75), to conclude

that

Green’s investigation was biased and that Green did not act as “any
other

reasonable

police

detective

in

the

State

of

Texas

in

investigating this officer-involved shooting.” (See id., at 90.)
But as Defendants point out, Taylor cannot testify to a legal
standard.

See

U.S.

v.

Williams,

343

F.3d

423

(5th

Cir.

2003)(concluding that the district court committed error when it
permitted an officer to testify to the reasonableness of the
shooting because Federal “Rule [of Evidence] 704(a) ‘does not allow
a witness to give legal conclusions.’”)(citation omitted).
Bearing in mind the above-referenced principles of qualified
immunity, the Court must examine whether Green acted reasonably in
conducting his investigation. And although “underlying historical
facts [can] be in dispute that are material to the reasonableness
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 47
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determination,” see Bramer, 180 F.3d at 703, such is not the case
here. The parties merely disagree on whether the facts show that
Green acted unreasonably in his investigation, and thus, whether
the unreasonable acts would show that he joined the alleged
conspiracy to cover-up the Waller shooting. Plaintiffs allege that
Green ignored the evidence and suggested answers to the accused
officers while interviewing them. Plaintiffs also point to Green’s
allowing

the

officers’

legal

counsel

to

be

present

when

he

conducted the crime-scene walkthrough as support. Plaintiffs argue
that the lawyers were present to assist with the cover up. And
Plaintiffs further point to the officers’ ability to speak with
legal counsel before Green interviewed the officers at the Major
Case Office as support for their cover-up claim.
Plaintiffs argue that the blood spatter and the wound on
Waller’s left hand should have alerted Green that the officers were
being untruthful in their account of events. Therefore, Plaintiffs
conclude, Green was incompetent in his failure to see what the
evidence showed him, or that he knowingly tried to assist the
officers in their cover-up efforts.

Green, however, acknowledges

the lefthand wound and declares:
Assuming that the blood on his right palm is blood
spatter, and also recognizing that the wounds to Waller’s
left hand are inconsistent with Waller holding a gun in
his left hand at the time his hand was shot, does not
mean that Waller could not have been holding a gun at the
time a shot or shots were fired at him. I think a
reasonable possibility is that Waller may have dropped
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 48
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the gun as a shot or shots were fired at him, and before
his left hand was hit or right had received splatter. If
so, then one or both of his hands, which at one time held
a gun would have been empty while other shots were fired
at Waller by Officer Hoeppner.
(Defs.’ Appx. (doc. 155) 199, ¶ 22.) In reviewing the interviews of
the officers, Green asked follow-up questions to have the officers
clarify their responses. Green further recognized the officers’
stories had some inconsistencies, but also concluded that the
stories generally matched. Green also questioned Hardin about why
he removed the gun from underneath Waller’s body. Hardin claimed
that when he arrived, he found Hoeppner and Hanlon with their guns
still pointed at Waller, and that he was told that there was a gun
underneath Waller.

Hardin stated that he removed the gun to

“secure it” from someone not known to be dead yet. Plaintiffs
allege that the crime-scene photographs show no visible blood on
the gun, meaning that the gun could not have been under Waller’s
body.

(See

Pls.’

2d

Am.

Compl.

(doc.

45)

13,

77,

81.)

But

Plaintiffs have included crime-scene photographs that appear to
contradict their claims and actually depict blood on the gun. (See
Pls.’ Reply Appx. (doc. 150) 188-91, 193, 211.)
Plaintiffs further claim that blood was added to the gun and
its cartridges by contact with a bloody glove after the weapon was
taken to the crime lab. (See Pls.’ Reply (doc 149) 20-21, 36; Pls.’
Reply Appx. at 188-89, 193.) But upon closer review of the crimescene photographs, there appears to be blood on the wooden handle
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 49
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and metal screw as depicted from photographs taken at the crime
scene. (See id. (doc. 150) 190, 211.) In that regard, the wooden
handle appears to be wet and have a reddish tint to it, and the
metal screw has what appears to be blood on it. There also appears
to be very small spots of blood on the garage floor next to

the

gun’s barrel, handle, and at the bottom-right of the picture. (See
id., at 190, 211.) Further, Plaintiffs seem to ask the Court to
infer that blood could not have gotten on the cartridges, but for
contact with a bloody glove in the crime lab. (See id., at 189;
Pls.’ Reply (doc. 149) 36.) But the cartridges are clearly visible
even when the revolver was closed as depicted from a photograph
taken at the crime scene, meaning that blood could have reached the
cartridges in another fashion. (See Pls.’ Appx. 211.)
In Green’s declaration, he notes that he found considerable
blood deposits on the gun that was allegedly found underneath
Waller. (See Defs.’ Appx. (doc. 155) 200.) Green’s declaration is
supported by what is visible in the crime-scene photographs. The
Court makes no opinion as to whether the evidence submitted shows
that

Waller

was

or

was

not

holding

a

gun

when

shot.

Those

determinations are better left for a trier of fact. The Court has
simply examined the evidence to determine if Plaintiffs have shown
that Green acted unreasonably in conducting his investigation, and
thus, whether an inference can be made in Plaintiffs’ favor that
Green joined a conspiracy to cover-up an unlawful shooting. Based
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 50
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on the representations of the officers and the evidence, it was
reasonable for Green to conclude that the officers’ account of
events

was

an

accurate

depiction.

And

upon

completing

his

investigation, Green gave the evidence to the district attorney’s
office to examine and present the case to a grand jury. Plaintiffs
have failed to show that Green acted objectively unreasonably in
conducting his investigation of the shooting of Waller.
In sum, Green’s investigative techniques appear to have been
aimed at eliciting information from the officers involved at the
crime scene, and his techniques were within the discretionary
functions of his job. Qualified immunity is aimed at protecting
officials when performing the discretionary functions of their job.
See Bramer, 180 F.3d at 703. Plaintiffs may be able to show that
Green made mistakes in conducting his investigation, but even so,
an

official

who

makes

mistakes

in

performing

his

job

is

nevertheless entitled to qualified immunity. See Pearson, 555 U.S.
at 231 (“The protection of qualified immunity applies regardless of
whether the government official's error is ‘a mistake of law, a
mistake of fact, or a mistake based on mixed questions of law and
fact.’”)(citation omitted).
F.
In

State-Law Claims
their

amended

complaints,

Plaintiffs

cite

several

provisions under Texas law, including: “art., I, §§ 8,9,13 and 19,
and art. XVI § 26 [of the Texas Constitution,]”
ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 51
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“the Texas Tort

Claims Act,” “the Texas Declaratory Judgment Act,” and “the Texas
Wrongful Death Statute.” (See generally, Pls.’ Am. Compls. (docs.
41 & 45).) Under Texas law, police officers are entitled to
official immunity on state-law claims for “‘(1) the performance of
discretionary

duties

(2)

that

are

within

the

scope

of

the

employee's authority, (3) provided that [they] act[ ] in good
faith.’”

Newman

v.

Guedry,

703

F.3d

757,

764

(5th

Cir.

2012)(quoting Telthorster v. Tennell, 92 S.W.3d 457, 460–61 (Tex.
2002)). “Texas law of official immunity is substantially the same
as federal qualified immunity.” Id. “An officer acts in good faith
if

a

reasonably

prudent

officer,

under

the

same

or

similar

circumstances, could have believed that the facts justified his
conduct.” Id. (citing City of Lancaster v. Chambers, 883 S.W.2d
650, 656–57 (Tex.1994)). “Like the federal standard from which it
is derived, Texas's good-faith test is one of objective legal
reasonableness.” Id. (citation omitted). Having already held that
Green and Baggott acted objectively reasonably in performing their
discretionary duties as detectives when investigating the shooting
of Waller, the Court concludes that Green and Baggott are also
entitled to official immunity under Texas law. As such, Plaintiffs’
state-law claims against Green and Baggott are DISMISSED.
IV.

CONCLUSION

Based on the foregoing, the Court GRANTS Defendants' motion

ORDER ON MOTION FOR SUMMARY JUDGMENT - Page 52
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for summary judgment (doc. 153) and concludes that detectives Green
and Baggott are entitled to qualified immunity for all claims
asserted against them.
SIGNED April 12, 2018.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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