Collie v. Barron et al

Filing 62

Memorandum Opinion and Order...Barron's motion for summary judgment is granted, plaintiff take nothing on his claim for excessive force against Barron; and that such claim is dismissed. (Ordered by Judge John McBryde on 7/21/2017) (wrb)

···.· .. . US DISTRICT COURT
NORTillRN DISTRICT OF TEXAS
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IN THE UNITED STATES DISTRI 1; COU~T JUL
NORTHERN DISTRICT OF T XAS
;

DAVID B. COLLIE,

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vs.
HUGO BARRON, ET AL.,
Defendants.

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CLEIDz:·1.Ji msTRICT coURT

By_:_----.:..-ne=v•=~--:----

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Plaintiff,

2 I 2017

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FORT WORTH DIVIs ION

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NO. 4:17-CV-211-A

MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant Hugo
Barron ("Barron") for summary judgment. The court, having
considered the motion, the response of plaintiff, David B.
Collie, the reply, the record, the summary judgment evidence, and
applicable authorities, finds that the motion should be granted.
I.

Plaintiff's Claims
The operative pleading is plaintiff's first amended
complaint filed April 18, 2017. Doc. 1 30. Pertinent to Barron,
plaintiff alleges:
On July 27, 2016, at approximately 11:55 p.m., the City of
Fort Worth received a 911 call regarding a robbery committed by
two black males. The first suspect was in his teens or early
20's, 6'1" tall and weighed approximately 180 pounds, having a
small "afro." The second suspect was 6'4" tall and also in his

'The "Doc.

" reference is to the number of the item on the docket in this action.

teens or early 20's. Doc. 30 at 4-5,

, 19. 2 Barron, an off-duty

Fort Worth Police Officer wearing his uniform and driving a
police car, searched apartment complexes in the area. Doc. 30 at
5, , 20. Upon seeing plaintiff, who was 33 years old, 5'6" and
150 pounds, Barron got out of his police car and shot plaintiff
in the back seven seconds later. Barron did not use cover, did
not give clear commands, did not call or wait for additional law
enforcement personnel, did not use additional illumination, did
not warn plaintiff he would shoot, and did not determine whether
plaintiff posed a threat to safety before shooting plaintiff.
Doc. 30 at 5, , 20. The bullet struck plaintiff in the back,
punctured a lung, and severed his spine. Doc. 30 at 6, , 20.
According to internal affairs interviews, Barron and another
officer accompanying him, Vanesa Flores ("Flores"), were yelling
potentially conflicting commands at plaintiff. Doc. 30 at 6, ,
21. Plaintiff was charged with aggravated assault on a public
servant, which was ultimately resolved in plaintiff's favor. Doc.
30 at 7, , 23.
Plaintiff's only remaining claim against Barron is for use
of excessive force. Doc. 46.

2

The police report to which plaintiff refers does not describe the suspects in this manner, but only
says that the first was a black male wearing no shirt, black basketball shorts, and Nike Air Foamposites
and was around 6'1" and skinny, having a short afro hair style. The second suspect was also shirtless,
wearing khaki pants, around 6'4" and skinny, and having short hair. Doc. 30, Ex. A.
2

II.
Ground of the Motion
Barron asserts that he is entitled to qualified immunity
from the claim asserted by plaintiff.
III.
Applicable Legal Principles
A.

Summary Judgment
Rule 56(a) of the Federal Rules of Civil Procedure provides

that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.

Fed. R. Civ.

P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986).

The movant bears the initial burden of pointing out to

the court that there is no genuine dispute as to any material
fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).

The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,

"since a complete failure of proof

concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."

Id. at 323.

Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its

3

case.

Id. at 324; see also Fed. R. Civ. P. 56(c)

asserting that a fact .

is genuinely disputed must support
citing to particular parts of materials in

the assertion by
the record

("A party

.").

If the evidence identified could not lead

a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.
475

u.s.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

574, 587, 597 (1986).

In Mississippi Prot. & Advocacy

Sys., Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law.'

Celotex Corp., 477 U.S. at 323.

If the record taken as a

whole could not lead a rational trier of fact to find for the
non-moving party,

there is no genuine issue for trial.

Matsushita, 475 U.S. at 597; see also Mississippi Prot. &
Advocacy Sys., 929 F.2d at 1058.

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ln Boeing Co. v. Shipman, 411 F.2d 365,374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
explained the standard to be applied in determining whether the court should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
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B.

Qualified Immunity
Qualified immunity insulates a government official from

civil damages liability when the official's actions do not
•violate clearly established statutory or constitutional rights
of which a reasonable person would have known.•
Fitzgerald, 457 U.S. 800, 818 (1982).

Harlow v.

For a right to be •clearly

established, • the right's contours must be •sufficiently clear
that a reasonable official would understand that what he is doing
violates that right.•
(1987) .

Anderson v. Creighton, 483 U.S. 635, 640

Individual liability thus turns on the objective legal

reasonableness of the defendant's actions assessed in light of
clearly established law at the time.

Hunter v. Bryant, 502 U.S.

224, 228 (1991); Anderson, 483 U.S. at 639-40.

In Harlow, the

court explained that a key question is "whether that law was
clearly established at the time an action occurred" because "[i]f
the law at that time was not clearly established, an official
could not reasonably be expected to anticipate subsequent legal
developments, nor could he fairly be said to 'know' that the law
forbade conduct not previously identified as unlawful."
at 818.

457 U.S.

In assessing whether the law was clearly established at

the time, the court is to consider all relevant legal authority,
whether cited by the parties or not.
510, 512

(1994).

Elder v. Holloway, 510 U.S.

If public officials of reasonable competence

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could differ on the lawfulness of defendant's actions, the
defendant is entitled to qualified immunity. Mullenix v. Luna,
136

s.

Ct. 305, 308 (2015); Malley v. Briggs, 475

u.s.

335, 341

(1986); Fraire v. city of Arlington, 957 F.2d 1268, 1273 (5th
Cir. 1992).

"[A]n allegation of malice is not sufficient to

defeat immunity if the defendant acted in an objectively
reasonable manner."

Malley, 475 U.S. at 341.

In analyzing whether an individual defendant is entitled to
qualified immunity, the court considers whether plaintiff has
alleged any violation of a clearly established right, and, if so,
whether the individual defendant's conduct was objectively
reasonable.

Siegert v. Gilley, 500

u.s.

226, 231 (1991); Duckett

v. city of Cedar Park, 950 F.2d 272, 276-80 (5th Cir. 1992).

In

so doing, the court should not assume that plaintiff has stated a
claim, i.e., asserted a violation of a constitutional right.
Siegert, 500 U.S. at 232.

Rather, the court must be certain

that, if the facts alleged by plaintiff are true, a violation has
clearly occurred.
(5th Cir. 1989).

Connelly v. Comptroller, 876 F.2d 1209, 1212
A mistake in judgment does not cause an officer

to lose his qualified immunity defense.

In Hunter, the Supreme

Court explained:
The qualified immunity standard •gives ample room for
mistaken judgments• by protecting "all but the plainly
incompetent or those who knowingly violate the law.•
Malley, [475 U.S.] at 343.
This accommodation for
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reasonable error exists because •officials should not err
always on the side of caution• because they fear being sued.

502

u.s.

at 229.

When a defendant relies on qualified immunity, the burden is
on the plaintiff to negate the defense. Kovacic v. Villarreal,
628 F. 3d 209, 211

(5'" cir. 2010); Foster v. City of Lake

Jackson, 28 F. 3d 425, 428
C.

(5'° Cir. 1994).

Excessive Force
The elements of an excessive force claim are (1) an injury,

(2) that resulted directly and only from a use of force that was
clearly excessive, and (3) the excessiveness was clearly
unreasonable. Freeman v. Gore, 483 F. 3d 404, 416

(5'" Cir. 2007).

A use of deadly force is presumptively reasonable when an officer
has reason to believe that the suspect poses a threat of serious
harm to the officer or to others. Mace v. City of Palestine, 333
F. 3d 621, 624

(5'° Cir. 2003).

The reasonableness of use of force is to be determined from
the perspective of the officer on the scene and not with "the 2020 vision of hindsight." Mace, 333 F.3d at 625

(quoting Graham v.

Connor, 490 U.S. 386, 396 (1989)). That the officer himself may
have created the situation does not change the analysis. In other
words, that the officer could have handled the situation better
is not a factor in the constitutional analysis. Young v. City of
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Killeen, 775 F.2d 1349, 1352-53

(5'h Cir. 1985). See also City

&

Cty. Of San Francisco v. Sheehan, 135 S. Ct. 1765, 1777
(2015) (failure to follow training does not itself negate
entitlement to qualified immunity) .
IV.
Analysis
Barron is presumed to enjoy qualified immunity; abrogation
of qualified immunity is the exception, not the rule. Foster v.
City of Lake Jackson, 28 F.3d 425, 428

(5'h Cir. 1994). Thus, the

burden is on plaintiff to show that Barron's allegedly wrongful
conduct violated clearly established law. Brumfield v. Hollins,
551 F.3d 322, 326 (5'h Cir. 2008). To be clearly established,
existing precedent must place the statutory or constitutional
question beyond debate. White v. Pauly, 137 S. Ct. 548, 551
(2017). That is, the clearly established law upon which plaintiff
relies should not be defined at a high level of generality, but
must be particularized to the facts of the case. Id. at 552.
Thus, the failure to identify a case where an officer acting
under similar circumstances was held to have violated a
plaintiff's rights will most likely defeat plaintiff's ability to
overcome a qualified immunity defense. Id.; Surratt v. McClarin,
851 F.3d 389, 392

(5'h Cir. 2017).

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The affidavits of Barron and Flores describe from their
perspective what happened on the evening of July 27, 2016. Doc.
51, 12-21. The officers were working an off-duty job when they
received a report of a robbery committed by two black males who
left on foot toward an apartment complex. The two were shirtless,
one wearing shorts and one wearing khaki pants. One of the
robbers had a small silver handgun. Barron and Flores were in the
area and began looking for the suspects when they saw plaintiff,
who was shirtless and wearing shorts. They followed him to
question him. They got out of their car and called to plaintiff
to stop, but he continued walking. Barron withdrew his gun for
protection since he knew that one of the robbers was armed. As
plaintiff approached the edge of a building, Flores illuminated
him with her flashlight.

Plaintiff pulled his right hand out of

his pocket and thrust it straight out in front of himself. He
immediately swung his arm to the right, in the direction of
Flores. Barron saw plaintiff holding something in his hand and
believed it to be a gun about to be used to shoot Flores. He
fired his weapon, striking plaintiff. Barron believed that if he
did not fire his weapon, plaintiff would shoot Flores.

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The affidavits are undisputed, except that plaintiff says
that he did not have anything in his hands.' Doc. 55 at 41.
Plaintiff does not dispute that he kept moving or that he raised
and pointed his arm. Doc. 55 at 41-42.
Plaintiff relies upon the declaration and report of Andre
Stuart, Chief Executive Officer of 21'' Century Forensic
Animations,

("Stuart"), Doc. 55 at 1-40, to support the

allegation that two material fact issues preclude judgment in
favor of Barron.' First, plaintiff says that he did not point his
arm at Flores. Doc. 53 at 9-11. Second, he says that there is no
evidence that plaintiff had anything in his hand. Doc. 53 at 1213. Even if true, however, these facts do not create a material
issue for trial, because the test is whether Barron acted
reasonably in light of what he perceived. Whether plaintiff
actually had anything in his hand, both Flores and Barron
perceived that he did. And, whether plaintiff ever pointed his
arm at Flores, he was moving his arm in a manner that Barron
perceived to be a threat to Flores. The dash cam video is the
best evidence of what transpired, Scott v. Harris, 550 U.S. 372,
380-81 (2007), and it supports the facts as described by Barron.

'Plaintiff includes a section in his brief titled "Disputed Material Facts," but he does not cite any
summary judgment evidence to support these alleged facts. Doc. 52 at 6-7.
5

The court is not satisfied that Stuart is qualified to testify as an expert, but accepts his testimony
of the purposes of this summary judgment motion.

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Finally, plaintiff does not cite, and says he does not have
to cite, a case with a similar fact pattern to show the clearly
established law. Doc. 53 at 20. He simply makes conclusory
allegations that he did not present a threat to the officers. He
implies that it was wrong for Barron to confront him, since he is
much shorter than the robbery suspects,' but he has no case
authority to support that proposition. He says that he posed no
immediate threat, but the video appears shows

(and plaintiff's

expert confirms) that plaintiff reached into his pocket before
raising his arm straight out in front of him and starting to
swing it, as if he might have had a weapon. Under these rapidlyevolving circumstances, the court cannot second-guess Barron's
actions, especially when plaintiff has made no attempt to show
that the law in this particular set of circumstances was clearly
established and that the shooting of plaintiff was clearly a
violation of his constitutional rights.' See Graham, 490 U.S. at
390. Plaintiff has not overcome Barron's defense of qualified
immunity as to his excessive force claim.

'There is no summary judgment evidence to dispute that Barron and Flores did not have a
description of the height, weight, and ages of the suspects at the time they encountered plaintiff. Doc. 51
at 13-14.
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ln pat1icular, plaintiff does not cite any authority to support the proposition that the court can or
should use forensic animation or photogrammetry to analyze the actions of a police officer in a case like
this one in determining whether he is entitled to qualified immunity. In light of the Supreme Court's
directives that cout1s are not to second-guess or analyze in hindsight the actions of officers, such
authority seems highly unlikely.
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v.
Order
The court ORDERS that Barron's motion for summary judgment
be, and is hereby, granted; that plaintiff take nothing on his
claim for excessive force against Barron; and that such claim be,
and is hereby, dismissed.
The court determines that there is no just reason for delay
in, and hereby, directs entry of final judgment as to the
dismissal of all claims asserted by plaintiff against Barron.
SIGNED July 21, 2017.

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