Hobart v. City of Stafford et al
Filing
97
MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART 94 MOTION for Summary Judgment Addressing Ratification Theory of Recovery (Signed by Judge Keith P Ellison) Parties notified.(sloewe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
STEVE HOBART, et al.,
Plaintiffs,
v.
CITY OF STAFFORD, et al.,
Defendants.
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CIVIL ACTION NO. 4:09-cv-3332
MEMORANDUM AND ORDER
Pending before the Court is Defendants City of Stafford (“the City” or “Stafford”) and
Chief Bonny Krahn’s (“Chief Krahn”) Motion for Summary Judgment Addressing Ratification
Theory of Recovery. (Doc. No. 94.) After considering the motion, all responses thereto, and the
applicable law, the Court finds that the motion must be GRANTED IN PART and DENIED IN
PART.
I.
BACKGROUND
This lawsuit arises from the death of Aaron Hobart (“Aaron”), son of Plaintiffs Steve and
Pam Hobart (collectively, “the Hobarts” or “Plaintiffs”). Many of the facts of this case have
been laid out in the Court’s April 29, 2011 Memorandum and Order (the “April 2011 Order”),
and the Court’s April 17, 2012 Memorandum and Order (the “April 2012 Order”). (Doc. Nos.
79, 87.) The circumstances leading up to Aaron’ Hobart’s death are recounted below, as are the
steps the City took after the incident. Additional facts, including facts about the City’s policies,
can be found in the Court’s prior orders.
1
A. Aaron Hobart’s Death
Nineteen-year-old Aaron Hobart suffered from a schizoaffective disorder, which resulted
in delusions. (Doc. No. 72-24, Moreland Decl.)1 Aaron’s mental health was deteriorating in the
days, weeks, and months leading up to his death on February 18, 2009. In 2008, Aaron was
examined by three doctors, and had two visits with the third, Dr. C. Scott Moreland, a
psychiatrist. (Doc. Nos. 32-9, 32-10, 32-11, Aaron Hobart’s Medical Records.) Dr. Moreland’s
records indicate that Aaron had stopped taking his medication in November 2008. (Doc. No. 329 at 178-79.) On February 16, 2009, Mrs. Hobart called Dr. Moreland’s office to request an
immediate appointment. (Id.) The office scheduled an appointment for Aaron on February 18,
the next available slot. (Id.) Mrs. Hobart said that, at that time, Aaron was not posing a danger
to himself or to others. (Id.) Mrs. Hobart was instructed to call Dr. Moreland’s office if there
was any change in Aaron’s mental status, and was told that, if Aaron became a danger to himself
or others, she should call 911 or take Aaron to the emergency room. (Id.)
On February 18, 2009, Aaron refused to leave his room to go to his appointment with Dr.
Moreland. When Mr. Hobart came home from work, he found Aaron in his room, speaking
“belligerently and abusively” in a raspy alternate voice. (Doc. No. 72-5, Steve Hobart Dep. at
20:8–24:23.) Mrs. Hobart called Dr. Moreland, who told her not to press Aaron to attend the
appointment that day, so that Aaron could calm down. (Doc. No. 32-9 at 183.) Dr. Moreland
also sent a follow-up email to Mrs. Hobart giving her instructions on how to administer Aaron’s
medication, and providing information from the Houston Crisis Intervention Team (“CIT”)
website regarding how to request emergency help. (Id. at 184–85.) The information stated that
1
Aaron had also previously been diagnosed with Attention Deficit Hyperactivity Disorder, Oppositional Defiant
Disorder, and depression. (Doc. No. 72-38, Moreland Medical Records, Initial Evaluation at 1.)
2
the CIT program “educates patrol officers about mental illness and tactics and techniques to help
verbally de-escalate situations involving individuals in serious mental health crises,” that one
should call for a CIT officer “[w]hen the situation involves a person in a serious mental health
crisis,” and that, if the situation is an emergency, one should call 911 and request a CIT officer.
(Id.) It also noted that “[i]f the person is mentally ill and poses a substantial risk of imminent
harm to self or others, Texas Peace officers have the authority to take the individual to a facility
for an emergency mental health evaluation, even if the person is involuntary. The officer may
use whatever force he needs to get the individual to the facility for evaluation.” (Id.)
Based on the instructions in Dr. Moreland’s email, Mrs. Hobart called 911 and requested
a “CIT officer.” (Doc. No. 72-9, Dispatch Tr. at 1.) She told the 911 operator, “I have a son that
needs to be taken,” that Aaron was “becoming . . . very violent,” that he was “deteriorate” [sic]
and “becoming delusional,” but that “he’s not hurting anyone,” “needs to be in a hospital,” and
“needs medication.” (Id.) The operator informed Mrs. Hobart that an officer would come to the
Hobarts’ home. (Id.) A few minutes later, an employee from the Stafford Police Department
(“SPD”) called Mrs. Hobart twice with further questions, and Mrs. Hobart informed him that
Aaron was “becoming more and more belligerent,” but that he did not have any weapons in his
room and that he was not “under the influence.” (Id. at 2–3.) Officers Garcia and Claunch from
the SPD were the primary officers dispatched on the call, but Officer Estrada was the first to
arrive at the Hobarts’ home. (Doc. No. 72-3, Jesus Estrada Dep. at 176:23–177:13.)
Officer Estrada testified that, prior to arriving at the home, he was aware that Aaron was
hallucinating, but did not know if Aaron was mentally ill or was simply under the influence of
drugs. (Id. at 138:6–139:24.) Officer Estrada also testified that he believed dispatch had
3
informed him that Aaron did not have a weapon. (Id. at 179:21–180:11.) SPD Sergeant Dustin
Claborn (“Sgt. Claborn”) testified that Officer Estrada asked dispatch to request Mrs. Hobart to
step outside to talk to him when he arrived. (Doc. No. 72-2, Claborn Dep. at 126:16–20.)
However, it is undisputed that, when Officer Estrada arrived, Mrs. Hobart let him into the house.
(Id. at 128:12–17.) Sgt. Claborn also testified that Officer Estrada did not attempt to learn where
Aaron was located or whether he was trying to hurt himself or others. (Id. at 127:19–130:4.)
The video camera in Officer Estrada’s car was running during the events at issue in this
case, and both sides have provided that footage as an exhibit. The video shows Officer Estrada
entering the Hobarts’ home by himself at approximately 15:07:59 on the video’s clock. For a
period of time, only the front yard is visible, with audio from inside the home captured on
Officer Estrada’s microphone. Immediately after he enters the home, one can hear Officer
Estrada conversing with Mrs. Hobart. At approximately 15:08:15, one can hear noises, and
Officer Estrada shouts, “Stop!” and “Get back!” several times. At approximately 15:08:20, one
can hear gunshots. Officer Estrada then begins shouting, “Goddamnit!” “Shots fired!” and “Oh
my god!” and Mrs. Hobart begins screaming loudly. The video then shows two other SPD
officers arriving in the house at approximately 15:08:43. They accompany Officer Estrada onto
the lawn, where Estrada kneels down with his head on the ground sobbing, and remains panicked
during the next seven minutes of video and audio, repeatedly saying, “Oh my god,” crying, and
stating that he cannot catch his breath.
Officer Estrada and Mrs. Hobart offer different versions of what happened during the
approximately 54 seconds that Estrada was in the house. According to Officer Estrada, the
following occurred: When he first entered, he thought that everything seemed quiet and normal,
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and “perceived . . . that either the disturbance was over or there was no disturbance.” (Estrada
Dep. at 208:4–211:11.) Mrs. Hobart let him in, and the two spoke inside the house. (Id.)
Officer Estrada then began walking down the hall, at which point Mrs. Hobart pointed down the
hall, and Officer Estrada saw Aaron, approximately thirty feet away. (Id. at 224:17–230:24.)
Aaron was in a bedroom, and at first he was facing away from Officer Estrada, not yelling,
screaming, or causing a disturbance. (Id. at 228:3–14.) Aaron then turned and saw Officer
Estrada for the first time, at which point he loudly “roared,” brought his arms up “from down
low to—up to his waist,” and began to charge at Officer Estrada. (Id. at 228:15–233:24.)
At that point, Officer Estrada, who was approximately five feet away from the front door
of the house, “attempted to step back away from [Aaron] to give him room” because he believed
Aaron was “going to come at” him. (Id. at 233:23–234:2.) However, Officer Estrada was unable
to get out of Aaron’s way or to back out of the house because Aaron traveled the entire length of
the hallway and began “attacking” Officer Estrada. (Id.) Officer Estrada remembers in those
moments “hearing and feeling [] thumps on [his] head” that he attributes to “being punched” on
the left side of his face and head. (Id. at 251:23–260:24.) Officer Estrada states that he
attempted to pull out his baton, but was unable to do so because it got stuck in its holster. (Id.)
He was also unable to use his spray or operate his police radio. (Id. at 237:16–241:13.) Officer
Estrada testified that Aaron hit him to the point where Officer Estrada became “disoriented,”
began “seeing stars,” and experienced “darkness” coming into his vision. (Id. at 252:4–5,
263:15–19.) He thought he was “fixing to be knocked out.” (Id. at 264:9–24.) He then heard
the sound of gunshots, but did not know that he was the one shooting, let alone who he was
shooting at. (Id. at 262:21–263:5.) He did not know where Aaron was in relation to him when
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the shooting occurred, and is not sure where Mrs. Hobart was at the time (though he thinks she
was to his left). (Id. at 265:3–268:13.) A few seconds later, Officer Estrada believed that Aaron
was getting back up, and he felt someone who he believed to be Aaron grabbing his vest. (Id. at
275:22–277:15.) Officer Estrada attempted to shoot his gun again, but could not get his fingers
to squeeze the trigger. (Id.) The person grabbing his vest turned out to be one of his fellow SPD
officers who had just entered the house. (Id. at 277:12–18.)
According to Mrs. Hobart’s testimony, the following occurred in the house: When
Officer Estrada arrived she “was under the impression that . . . [she] was getting a CIT person
that was going to explain that and was going to go through a certain procedure, so [she] was
trusting that they knew what was going to happen next.” (Doc. No. 72-6, Pam Hobart Dep. at
168:12–19.) Aaron ran from out of his bedroom and toward Officer Estrada while “flailing with
his arms.” (Id. at 33:15–35:20.) When he reached Officer Estrada, “Officer Estrada had his
arms up,” and Aaron’s arms hit Officer Estrada’s arms. (Id.) Mrs. Hobart did not see Aaron’s
arms hit Officer Estrada’s head. (Id. at 35:18–20.) Although she acknowledged that she did not
“see every single strike that Aaron made on Officer Estrada,” Mrs. Hobart “watched them the
entire time,” and only closed her eyes after Officer Estrada pulled his gun from its holster. (Id. at
37:20–40:25.) The flailing stopped and “2 or 3 seconds” passed before Officer Estrada began
shooting. (Id. at 40:1–7.) In the few seconds prior to the shooting there was “a separation of 2
or 3 feet” between Aaron and Officer Estrada, and Mrs. Hobart had shifted her weight to go
between the two, at which point Officer Estrada pulled out his gun. (Id. at 40:10–20.)
Officer Estrada fired six or seven bullets in the Hobarts’ home, four of which struck
Aaron: one in the back of the right upper neck, one in the right lower back, one in the back of
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the right hip, and one in the right middle back. (Doc. No. 72-22, Autopsy Report at 4–6.)
Officer Estrada did not have any bruises on his face from the incident, although he did have
some redness on his face that he contends was a result of the punches. (Estrada Dep. at 254:1–
255:2; Doc. No. 72-14, Photos of Estrada’s Injuries.) At the time of his death on February 18,
2009, Aaron was nineteen years old, stood five-foot-nine-inches tall, and weighed 166 pounds.
(Autopsy Report at 3.) He was barefoot and dressed in shorts and a t-shirt. (Id.) There is no
suggestion that he had any type of weapon at the time.
He had, at most, a high school
education.2 Officer Estrada stood six-foot-one-inch tall and weighed 190 pounds. (Estrada Dep.
at 53:23–54:1.)
B. The City’s Response
Stafford’s Chief of Police, Chief Bonny Krahn, testified that, in response to these events,
he initiated an internal investigation into the shooting to determine whether any of the City’s
policies had been violated. (Doc. 95-1, Krahn Dep. at 103:5–15.)3 Chief Krahn placed Assistant
Chief Phil Horton in charge of effectuating the investigation. (Id. at 103:9–15.) Assistant Chief
Horton assigned Sgt. Claborn to conduct the internal investigation. (Id. at 103:19–21.) Chief
Krahn never personally discussed the shooting with Officer Estrada, apparently on the advice of
the City’s attorneys. (Id. at 102:20–103:4.)
2
The record is does not indicate whether Aaron completed high school. Aaron had difficulty focusing in school
even before he began exhibiting signs of schizoaffective disorder. (Moreland Medical Records, Initial Evaluation at
1.) Before his schizoaffective disorder diagnosis, as an incentive to focus on his studies, the Hobarts allowed him to
participate in a trip to Italy that he expressed interest in. (Id.) After he returned from this trip, however, he became
“obsessed and delusional.” (Id.) The record does not indicate whether he continued his high school education after
this trip.
3
The “polic[ies] for the operation of the department” are contained in the “General Orders” (Krahn Dep. at 31:14–
17), which define themselves as “standing written guidelines that provide purpose, policy, and procedures for
carrying out Stafford Police Department operations and activities.” (Doc. No. 72-8, SPD General Orders at 359.)
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Sgt. Claborn testified that his investigation consisted of reviewing the audio and video
available from Officer Estrada’s vehicle on the day of the shooting, as well as an interview
Detective Richard Ramirez conducted of Officer Estrada as part of a criminal investigation into
the incident. (Doc. No. 95-2, Claborn Dep. at 64:15–17, 66:11–24.)4 He stated that SPD policy
“requires that the use of force review include only the information and perception of the officer
[leading] up to the use of force” (id. at 66:13–15), and explained that reviewing these records
answered all of his questions about Officer Estrada’s perception leading up to the use of deadly
force. (Id. at 66:25–67:5.) As a result, at no point during the investigation did Sgt. Claborn
discuss the events of February 18, 2009 with Officer Estrada, with the other officers present, or
with the Hobarts. (Id. at 66:25–67:5; Administrative Review #I-09-02 at 1.)
After reviewing what he described as all of the relevant evidence, Sgt. Claborn concluded
that Officer Estrada was “in fear for his life” and his use of deadly force was objectively
reasonable in light of the “totality of this situation.” (Id. at 67:16–19, 72:1–74:1.) Specifically,
he indicated that it “could be a reasonably objective use of force” to begin shooting if an officer
is about to lose consciousness. (Id. at 72:1–17.) At his deposition, he confirmed that he believed
Officer Estrada’s decision to shoot while losing consciousness was objectively reasonable, even
in light of the fact that Officer Estrada did not know the location of innocent bystanders,
including Pam and Steve Hobart and other officers; it was objectively reasonable even in light of
the fact that Aaron Hobart was “barefoot, in shorts and a T-shirt,” and weaponless; it was
objectively reasonable even though Officer Estrada apparently could not specifically recall how
4
Sgt. Claborn’s Summary of the Incident indicates that, in addition to the aforementioned materials, he also
reviewed the in-car video and audio of Officers Claunch and Garcia, the statements of Officer Estrada and Steve and
Pam Hobart, and a timeline established by Ft. Bend County’s District Attorney’s Office. (Doc. No. 72-7,
Administrative Review #I-09-02 at 1.)
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Aaron struck his face, or how many times Aaron struck his face; it was objectively reasonable
even though Aaron Hobart’s autopsy revealed that he had gunshot wounds in his side and back,
suggesting that Aaron may not have been facing Officer Estrada at the time of the shooting; it
was objectively reasonable even in light of the fact that Officer Estrada did not know Aaron’s
location in relation to himself when he first fired; and it was objectively reasonable even though
Sgt. Claborn could not say whether Officer Estrada, in the time it took him to retrieve his gun,
could have retrieved his pepper spray or his baton. (Id. at 67:6–19, 69:4–15, 72:21–73:19, 75:8–
16, 75:13–76:17, 78:11–79:6, 88:13–90:20.)
Sgt. Claborn was able to conclude that Officer Estrada’s use of deadly force was
appropriate because he believed he “was about to be seriously injured or killed,” a belief that was
reasonable because Aaron Hobart was “in proximity to [Officer Estrada]”; because Officer
Estrada “remember[ed] [Aaron’s] hand coming at him again” after beginning to lose
consciousness; because Officer Estrada was “fairly certain of who was assaulting him”; because
Officer Estrada could not be perfectly certain of what was occurring as he was “ducking down,
trying to cover up”; because people turn and change positions in a fight, and Aaron did not
necessarily have to be facing Officer Estrada to be striking him; and, because the circumstances
were such that if Officer Estrada lost consciousness, “the suspect” could gain “access to
everything on [Officer Estrada’s] belt.” (Id. 67:6–10, 69:4–15, 70:19–71:7, 73:12–74:1, 74:20–
24, 75:21–22; 92:20–93:6.) Sgt. Claborn also testified that he would find Officer Estrada’s use
of force reasonable even if Aaron and Officer Estrada had “actually separated,” as Ms. Hobart
testified they had. (Id. at 146:1–14.)
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After Sgt. Claborn completed his review of the events of February 18, 2009, he
concluded that Officer Estrada’s actions were entirely consistent with the SPD’s current training
and a reasonable use of force. (Id. at 65:9–13, 96:7–20.) The purpose of Sgt. Claborn’s
investigation was to begin the process of determining whether Officer Estrada should be
disciplined or further trained. (Id. at 147:22–148:8.)5 As a result of Sgt. Claborn’s investigation,
Chief Krahn concluded that Officer Estrada’s use of force was reasonable and no disciplinary
action should be taken. (Id. at 148:14–22.) Chief Krahn explained that he “has not been
persuaded that Officer Estrada’s decision to fire when he did was unreasonable.” (Doc. No. 943, Krahn Decl. ¶ 19.) However, he also stated that “significant” to his conclusion was the fact
that Officer Estrada “made no evaluation of whether shooting Hobart would be authorized by
any city policy, police department regulation or training but, instead fired driven only by the selfpreservation basic instinct to avoid dying at that instant.” (Id. ¶ 24.) He further defended his
assessment that Officer Estrada did not employ an excessive amount of force by explaining that
he does
not believe it appropriate for me to now sit in the comfort of my office at no
personal risk to my life, and with no limitation on my time, and substitute my
personal opinion in place of the conclusion of Officer Estrada about the
seriousness, or imminence of the danger he perceived when he made the decision
to fire.
The record contains some evidence suggesting that the investigation of Officer Estrada’s
conduct did not proceed in accordance with the SPD’s normal investigative procedures. For
instance, an investigation of use of force is normally initiated by filing out a “response to
resistance” form, which is reviewed by the chain of command.
5
(Id. at 150:15–151:2.) Sgt.
Sgt. Claborn himself did not make the final determination of whether Officer Estrada should be disciplined. (Id.
147:22–148:22.)
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Claborn admits that he was not in Officer Estrada’s direct chain of command, and he does not
know why he was asked to investigate this incident. (Id. at 151:12–152:7.)6 Additionally, SPD’s
General Order 33.2.4 provides that the “Chief of Police will notify complainants of the findings
of [an] investigation.” (Doc. No. 72-8, General Order 33, at 3.) Although Sgt. Claborn did not
know that the Hobarts were complainants at the outset of his investigation, he learned that they
were complaining of Officer Estrada’s conduct when they issued a press release. (Claborn Dep.
at 149:15–150:8.) General Order 33 provides that complaints can be either formal, signed, and
written complaints or informal, oral complaints. (General Order 33, at 2–3; Claborn Dep. at
152:16–155:6.)7 Although the Hobarts’ press statement constituted an oral complaint, it appears
that they were not notified of the outcome of this investigation. (Claborn Dep. at 148:25 –
150:10, 152:16–155:6.)
Following the completion of the investigation, Officer Estrada was returned to his
position as a patrol officer. (Id. at 95:15–23, 147:4–21.)8 In fact, Chief Krahn even selected
Officer Estrada to be one of the SPD police officers to attend a Texas Commission on Law
Enforcement Officer Standards and Education (“TCLEOSE”) “train the trainer” course, the
completion of which would enable Officer Estrada to provide CIT training to others. (Id. 30:11–
17, 32:5–17.) Sgt. Claborn testified that he believed Chief Krahn made this decision based on
his belief that Officer Estrada’s “need to use force in a situation involving a person with mental
6
Sgt. Claborn at first indicated that Officer Estrada’s supervisor was not asked to investigate this incident because
he was “out on the scene;” however, he subsequently acknowledged that, in the past, other response to resistance
forms had been reviewed by supervisors who had been on the scene. (Claborn Dep. at 151:18–152:2.)
7
Sgt. Claborn at first indicated that the policy requiring notification applied only to complaints that had been written
down. (Claborn Dep. at 153:7–154:4.) However, when presented with the General Order, Sgt. Claborn appeared to
concede that the Hobarts had an oral complaint. (Id. at 155:1–6.)
8
During the investigation, Officer Estrada was on administrative leave for a period of time, and also worked in
several office positions. (Id. at 147:4–21.)
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illness . . . gives him an experience that can be relayed and hopefully be effective training for
officers in the future.” (Id. 32:18–33:7.)
II.
PROCEDURAL HISTORY
Plaintiffs filed their original Complaint on October 15, 2009. (Doc. No. 1.) Shortly
thereafter, the City, Chief Krahn and Officer Estrada (collectively “Defendants”) filed a Motion
to Dismiss.
(Doc. No. 7.)
Before the Court issued a ruling on the Motion to Dismiss,
Defendants filed a Motion for Summary Judgment. (Doc. No. 32.) On September 29, 2010, the
Court issued a Memorandum and Order (Doc. No. 45) granting in part and denying in part the
Motion to Dismiss, and granting Plaintiffs leave to file an amended complaint to cure the
deficiencies identified in that order.9
On October 19, 2010, Plaintiffs filed an Amended
Complaint. (Doc. No. 54.) On November 2, 2010, Defendants filed a second Motion to
Dismiss. (Doc. No. 61.) The Court subsequently delayed Plaintiffs’ response deadline with
respect to the portions of the Motion for Summary Judgment addressing Plaintiffs’ § 1983 claims
against the City. (February 9, 2011, Minute Entry.)
On April 29, 2011, the Court ruled on the pending Motion to Dismiss and portions of the
Motion for Summary Judgment. (Doc. No. 79.) The Court denied Defendants’ Motion to
Dismiss with respect to the majority of Plaintiffs’ claims, but held that Plaintiffs failed to allege
sufficient facts to state a claim against the City based on ratification. (Id. at 29–30 n.15, 50.)
The Court granted summary judgment with respect to Plaintiffs’ state law claims, deferred
adjudication of the § 1983 claims against the City and Chief Krahn until the claims against
Stafford were fully briefed, and denied summary judgment on the remainder of the claims. (Id.
9
Specifically, the Court found Plaintiffs’ allegations insufficient with respect to the claims against Chief Krahn and
Stafford, along with the state-law claims against all Defendants.
12
at 50.) The Court subsequently granted Defendants’ unopposed motion to withdraw that portion
of its April 2011 Order denying Officer Estrada’s motion for summary judgment based on
qualified immunity, with the understanding that that portion of the order would be re-entered
once the Court rendered a decision on Chief Krahn’s motion for summary judgment based on,
inter alia, qualified immunity. (Doc. No. 81.)
On April 17, 2012, the Court issued a Memorandum and Order addressing those portions
of the Motion for Summary Judgment that related to Plaintiffs’ claims against the City and Chief
Krahn brought under § 1983. (Doc. No. 87.) The Court denied summary judgment as to
Plaintiffs’ claims against the City based on a policy of encouraging or condoning excessive use
of force and of failing to train on the appropriate use of force; denied summary judgment as to
Plaintiffs’ claim against Chief Krahn for failure to train on the appropriate use of force; and
granted summary judgment as to Plaintiffs’ other § 1983 claims against the City and Chief
Krahn. (Id. at 36.) In its April 2012 Order, the Court also considered Plaintiffs’ request to
reconsider that portion of its prior Memorandum dismissing Plaintiffs’ ratification claim. (Id. at
15 n.2.) Recognizing that the evidence submitted by Plaintiffs suggested that they did, indeed,
appear to have a § 1983 claim based on ratification, the Court granted Plaintiffs leave to amend
their complaint to add a cause of action premised on ratification. (Id.)
On May 2, 2012, Plaintiffs filed their Second Amended Complaint, which includes a §
1983 claim premised on ratification of Officer Estrada’s alleged excessive use of force. (Doc.
No. 88.) Plaintiffs pled this cause of action against both the City and Chief Krahn. (See id. at 11
(indicating that the claims in Part B of the Complaint are brought against the City and Chief
Krahn).) The Court then granted Defendants’ unopposed motion to withdraw that portion of its
13
April 2012 Order denying Chief Krahn’s motion for summary judgment based on qualified
immunity, with the understanding that that portion of the order would be re-entered once the
Court rendered a decision on Chief Krahn’s second motion for summary judgment with regards
to the ratification theory of recovery, which would be based on, inter alia, qualified immunity.
(Doc. No. 90.) On August 15, 2012, the City and Chief Krahn moved for summary judgment on
Plaintiffs’ § 1983 claims premised on a ratification theory of recovery. (Doc. No. 94.) The
Court now turns to this motion.
III.
LEGAL STANDARD
A motion for summary judgment requires the Court to determine whether the moving
party is entitled to judgment as a matter of law based on the evidence thus far presented. Fed. R.
Civ. P. 56(a).
Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir. 2001) (quotations omitted). “A fact
is material if its resolution in favor of one party might affect the outcome of the lawsuit under
governing law.” Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009)
(quotations and footnote omitted).
“Facts and inferences reasonably drawn from those facts should be taken in the light most
favorable to the non-moving party.” Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 188 (5th
Cir. 2007). The Court may not make credibility determinations or weigh the evidence. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). “The court should give credence to
the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that
14
is uncontradicted and unimpeached, at least to the extent that that evidence comes from
disinterested witnesses.’”
Id. at 151.
Hearsay, conclusory allegations, unsubstantiated
assertions, and unsupported speculation are not competent summary judgment evidence. Fed. R.
Civ. P. 56(e)(1); see, e.g., McIntosh v. Partridge, 540 F.3d 315, 322 (5th Cir. 2008); Eason v.
Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996) see also Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (noting that a nonmovant’s burden is “not satisfied with ‘some
metaphysical doubt as to the material facts’”) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)).
IV.
ANALYSIS
A. § 1983 claim against the City of Stafford based on ratification
Municipalities are considered “persons” subject to suit under § 1983 for civil rights
violations. Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). However, “a
municipality cannot be held vicariously liable for the constitutional torts of its employees or
agents.” Gros v. City of Grand Prairie, 181 F.3d 613, 615 (5th Cir. 1999) (citing Monell, 436
U.S. at 694). This is because § 1983 requires a showing that the defendant “subject[ed] or
cause[d a plaintiff] to be subjected” to a deprivation of a federal right, see 42 U.S.C. § 1983, a
requirement that “cannot be easily read to impose liability vicariously on governing bodies solely
on the basis of the existence of an employer-employee relationship with a tortfeasor.” Monell,
436 U.S. at 692.
A municipality may be sued under § 1983 if a constitutional violation is the result of a
formal policy or governmental custom. Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 166
(5th Cir. 2010). A plaintiff may be able to prove the existence of an unofficial policy or custom
15
by pointing to “a widespread practice that, although not authorized by written law or express
municipal policy, is “so permanent and well settled as to constitute a ‘custom or usage’ with the
force of law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion)
(citation omitted). However, “[m]unicipalities can “also be liable, in certain situations, for single
episodes of conduct” that are not part of any policy or custom. Milam v. City of San Antonio,
Nos. 03-50862, 03-50937, 113 Fed. App’x 622, 626 (5th Cir. 2004) (citing Bd. of Cnty. Comm’rs
v. Brown, 520 U.S. 397, 405–06 (1997)). For instance, a decision to adopt a particular course of
conduct represents official policy even if it is not intended to govern future conduct so long as
the decision was made by a final policymaker. Pembaur v. City of Cincinnati, 475 U.S. 469, 481
(1986).
In Praprotnik, a plurality of the Supreme Court also recognized “a scenario in which a
municipality can be held liable for a single episode of conduct initiated by a non-policymaker
employee.” Milam, 113 Fed. App’x at 626; Praprotnik, 485 U.S. at 127. In Praprotnik, the
Court explained:
[W]hen a subordinate’s decision is subject to review by the municipality’s
authorized policymakers, they have retained the authority to measure the official’s
conduct for conformance with their policies. If the authorized policymakers
approve a subordinate’s decision and the basis for it, their ratification would be
chargeable to the municipality because their decision is final.
Praprotnik, 485 U.S. at 127 (emphasis in original).
The ratification theory delineated in
Praprotnik does not appear to be premised on an assumption that ratification of a subordinate’s
actions reveals a municipality’s pre-existing policy. Rather, Praprotnik appears to hold that post
hoc ratification by a final policymaker is sufficient to subject a city to liability because decisions
by final policymakers are policy. See id.; Pembaur, 475 U.S. at 481.
16
Prior to Praprotnik, the Fifth Circuit had decided Grandstaff v. City of Borger, Tex., 767
F.2d 161 (1985), a case that is now frequently cited as a rare example of a successful ratification
claim. See, e.g., World Wide Street Preachers Fellowship, 591 F.3d 747,755 (5th Cir. 2009);
Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 848 (5th Cir. 2009); McIntosh v. Smith, 690
F. Supp. 2d. 515, 533–34 (S.D. Tex. 2010). The facts of Grandstaff are as follows: Lonnie Cox
refused to stop when officers signaled to him to pull over. Grandstaff, 767 F.2d at 165. In
response, three police cars engaged in a high-speed chase. Id. At some point during the chase,
“gunfire erupted” and Cox was injured. Id. Cox eventually turned off the freeway and drove,
through a fence, onto a ranch, where he stopped. His vehicle stopped approximately 200 feet
from a house on the ranch. After Cox exited the vehicle, there was more gunfire, and a bullet
struck the ranch house. Id. The facts do not indicate whether Cox ever fired; however, no
bullets ever struck any police cars or police officers. Id. After hearing the noise, Grandstaff left
the ranch house to investigate. Id. After reaching the patrol cars and hearing announcements
indicating police were after an individual on the property, he returned to the house to warn his
family of the situation unfolding. Id. Thereafter, he got into his pick-up and drove toward the
officers. Id. When he reached the patrol cars the second time, police opened fire on him from
two sides. Id.10 Grandstaff died before an ambulance arrived. Id. By the time of the firing,
there were five patrol cars and six police officers present. Id. After what the Fifth Circuit
characterized as an “incompetent and catastrophic performance, there were no reprimands, no
discharges, and no admissions of error.” Id. at 171.
10
Subsequently, some of the officers claimed that they had seen Grandstaff fumbling near his waistline, and
believed that he was reaching for a gun. Grandstaff, 767 F.2d at 166 n.1.
17
The Fifth Circuit held that, on this record, the City of Borger could be held liable under §
1983. Id. It explained that if an “episode of such dangerous recklessness obtained so little
attention and action by the City policymaker, the jury was entitled to conclude that it was
accepted as the way things are done and have been done in the City of Borger.” Id. (emphasis
added). This language, along with other language in the decision, suggests that liability in
Grandstaff was premised on a finding of pre-existing city policy. See id. (“This reaction to so
gross an abuse of the use of deadly weapons says more about the existing disposition of the
City’s policymaker than would a dozen incidents where individual officers employed excessive
force. . . . [T]he subsequent acceptance of dangerous recklessness by the policymaker tends to
prove his preexisting disposition and policy.”)
Following the Supreme Court’s decision in Praprotnik, the Fifth Circuit has indicated
that it would recognize a ratification theory of recovery. See, e.g., Peterson, 588 F.3d at 848;
Santibanes v. City of Tomball, Tex., 654 F. Supp. 2d 593, 612–613 (S.D. Tex. 2009) (collecting
cases from Fifth Circuit that recognize ratification theory of municipal liability). However, Fifth
Circuit case law is, at times, less than clear about whether ratification is a truly independent
theory of municipal liability, as Praprotnik suggests, or whether ratification is simply indicative
of a pre-existing policy or custom, as Grandstaff suggests. Some cases do appear to treat
ratification as an independent theory of recovery.
See, e.g., Peterson, 588 F.3d at 848
(considering ratification theory independent of analysis of policy theories); Milam, 113 Fed.
App’x. at 625–26 (recognizing that a municipality may be liable under § 1983 based on formal
policy, custom, single acts of policymakers and ratification by policymakers of subordinates’
conduct); McIntosh, 690 F. Supp. 2d at 532–535 (discussing ratification without mention of
18
policy). Other post-Praprotnik cases might be read to suggest that ratification is a viable theory
of recovery only to the extent that it is indicative of municipal policy or custom. See, e.g., World
Wide, 591 F.3d at 755 (describing circumstances in which policymaker’s ratification of
subordinate’s actions were “insufficient to establish an official policy or custom”); Santibanes,
654 F. Supp. 2d at 612 (characterizing the ratification theory recognized in Praprotnik as an
example of when a single incident can constitute policy). As explained above, this Court
understands Praprotnik to have announced an independent theory of municipal liability premised
on ratification. To the extent Fifth Circuit and district courts in this Circuit occasionally analyze
ratification claims by asking whether a policymaker’s approval of a subordinate’s act is
sufficient to establish a municipal policy, this Court understands those courts to be asking
whether that act itself constitutes policy, as they must do under Praprotnik, not whether it is
indicative of pre-existing policy.11
There is some difficulty in treating ratification as an independent basis for municipal
liability. In particular, subjecting a municipality to liability based on post-deprivation ratification
of a subordinate’s actions is in tension with the requirement that a § 1983 defendant have
“subject[ed] or cause[d a plaintiff] to be subjected” to a deprivation of a federal right. 42 U.S.C.
§ 1983; see Monell, 436 U.S. at 691–94 (holding that Congress did not intend for municipalities
11
This is not to say that ratification cannot be evidence of a pre-existing policy. Although Grandstaff has not
“enjoyed wide application in this Circuit,” Snyder v. Trepagnier, 142 F.3d 791, 797 (5th Cir. 1998), it has not been
overruled. Davis v. Montgomery Cnty., No. H:07–505, 2009 WL 1226904, at *7 (S.D. Tex. April 30, 2009) (noting
that ratification theory recognized in Grandstaff is still good law). The Court means only that, post-Praprotnik, a
plaintiff who brings a claim premised on ratification is not obliged to argue that ratification is indicative of a preexisting policy. If a plaintiff seeks to impose liability on a municipality for certain alleged policies, that plaintiff
may, of course, rely on Grandstaff to argue that ratification tends to show the existence of those policies. That,
however, would be a § 1983 claim premised on the existence of a municipal policy; the Court does not understand
the claim before it to be such a claim, as the Court has already ruled on which policy claims may proceed in the
April 2012 Order. (Doc. No. 87.) Plaintiffs may of course, use any evidence, including evidence of ratification, to
support those policy claims that have been allowed to proceed.
19
to be held liable unless the “execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts
the injury” that is the subject of the § 1983 suit); see also George M. Weaver, Ratification as an
Exception to the § 1983 Causation Requirement: Plaintiff’s Opportunity or Illusion?, 89 Neb. L.
Rev. 358, 387 (2010). The Praprotnik Court did not explain how, or whether, municipal liability
premised on a policymaker’s subsequent ratification of acts taken by subordinates was
reconcilable with the requirement that a § 1983 defendant be held liable for only those
constitutional violations it could be said to have “caused.”
This Court believes that the best way to reconcile the ratification theory announced in
Praprotnik with the causation requirement of § 1983 would be to cabin the theory to those cases
where subsequent ratification can be said to have, in some sense, caused the deprivation.
Praprotnik itself arose in the employment context. See Praprotnik, 485 U.S. 114–16. It is easy
to see how, in an employment context, where a subordinate’s decision may be subjected to an
internal review by a policymaker before becoming final, ratification can be understood to have
caused the deprivation; by approving the subordinate’s actions, the policymaker, in effect,
continues the deprivation. In contrast, it is difficult to understand how the subsequent ratification
of a subordinate’s excessive use of force is a cause of that completed violation. Indeed, the Fifth
Circuit, in an unpublished opinion, has recognized that ratification is “most readily
conceptualized in contexts like employment.” Milam, 113 Fed. App’x at 626.
However, the Fifth Circuit has never actually limited the ratification theory to the
employment context, or to any other context where liability premised on ratification can be
reconciled conceptually with the causation requirement of § 1983. In fact, the Fifth Circuit and
20
this district court have, on numerous occasions, considered whether a policymaker’s subsequent
approval of an allegedly excessive use of force could subject the municipality to liability based
on ratification, thus suggesting that a ratification claim is at least theoretically possible in such a
context. See, e.g., Peterson, 588 F.3d at 848; McIntosh, 690 F. Supp. 2d at 532–535; Santibanes,
654 F. Supp. 2d at 612–14; James v. Harris Cnty., 508 F. Supp. 2d 535, 554–55 (S.D. Tex.
2007). As such, although the Court doubts the propriety of holding municipalities liable on a
ratification theory where the constitutional violation is excessive use of force, it concludes that
this Circuit apparently tolerates such claims.
Causation, however, is only the first of many hurdles a § 1983 claim premised on
ratification must overcome. As the Supreme Court explained in Praprotnik, a subordinate’s
decision is chargeable to the municipality if “authorized policymakers approve [the] decision and
the basis for it.” Praprotnik, 485 U.S. at 127 (emphasis added); see also Beattie v. Madison
Cnty. Sch. Dist., 254 F.3d 595, 604 (5th Cir. 2001) (refusing to impose liability based on
policymaker’s approval of a subordinate’s decision without a showing that the policymaker had
actual knowledge of the improper basis of the subordinate’s decision). “[A] municipality is not
liable under the ratification theory where a Police Chief accepts his officers’ version of events, so
long as ‘that version did not show that the deputies’ actions were manifestly indefensible.’”
Allen v. City of Galveston, Tex., No. G-06-467, 2008 WL 905905, at *8 (S.D. Tex. March 31,
2008) (citing Coon v. Ledbetter, 780 F.2d 1158, 1162 (5th Cir. 1986)). Moreover, “the theory of
ratification . . . has been limited to ‘extreme factual scenarios.’” World Wide, 591 F.3d at 755
(citations omitted). “[U]nless the subordinate’s actions are sufficiently extreme – for instance,
an obvious violation of clearly established law – a policymaker’s ratification or defense of his
21
subordinate’s actions is insufficient to establish an official policy or custom.” Id. (citations
omitted).
This Court does not think there is a principled basis for limiting the ratification theory to
so-called “extreme factual scenarios.” The restriction appears to have come from Coon v.
Ledbetter, a pre-Praprotnik case which noted the “highly peculiar set of facts” in Grandstaff and
held that Grandstaff’s analysis was applicable only to “equally extreme factual situations.”
Coon, 780 F.2d at 1161; see also World Wide, 591 F.3d at 755 (citing Coon for the proposition
that the ratification theory is limited to “extreme factual scenarios”). Perhaps there is some logic
to limiting Grandstaff to “extreme factual scenarios;” it may be reasonable to allow the inference
of a pre-existing policy from ratification only when the actions that have been ratified are
particularly outrageous. Grandstaff, 767 F.2d at 171. As explained supra Part III.A, the theory
of ratification recognized in Praprotnik does not depend on an inference of pre-existing policy,
and this Court sees no reason to limit municipal Praprotnik liability to ratification of only the
most extreme constitutional violations.
Furthermore, determining whether the underlying
violation is an extreme constitutional violation or only a garden-variety constitutional violation is
an ill-defined task. Nonetheless, this Court is bound by the Fifth Circuit, which has consistently
held that the ratification theory applies only to “extreme factual scenarios.” World Wide, 591
F.3d at 755 (citations omitted); Peterson, 588 F.3d at 848 (citations omitted).
Limited guidance exists as to the definition of a sufficiently extreme factual scenario.
Fifth Circuit cases consistently compare the facts before them to the facts of Grandstaff. World
Wide, 591 F.3d at 755 (citations omitted); Peterson, 588 F.3d at 848 (citations omitted); Coon,
780 F.2d at 1161. Although this Court has discussed at length its conclusion that Grandstaff is
22
not a ratification case in the Praprotnik sense, it follows suit and compares the facts of the case
before it to Grandstaff. It does so because of the lack of any other successful ratification claims
premised on excessive use of force. On that standard, this Court believes the case before it may
present a sufficiently extreme factual scenario. Aaron was not a criminal suspect, but a civilian,
who died after an extraordinary number of gunshots were fired. In fact, the Court is aware of no
prior criminal history indicating that Aaron had violent tendencies.12 Aaron was of smaller
stature than Officer Estrada. (Compare Autopsy Report at 3 with Estrada Dep. at 53:23–54:1.)
Aaron was known to be unarmed, a fact that makes this case perhaps even more egregious than
Grandstaff. (Estrada Dep. at 179:21–180:11.) One of the four bullets that struck Aaron was in
the back of his neck, suggesting that Aaron may well have been retreating at the time that shot
was fired. (Autopsy Report at 4–6.) Officer Estrada admits, and Sgt. Claborn is aware, that
Officer Estrada did not know the location of Pam Hobart, Steve Hobart, or his fellow officers,
when he fired. (Claborn Dep. at 72:21–73:19.) Following Aaron’s death, the SPD initiated an
investigation that did not comport with ordinary procedures for reviewing use of deadly force.
(Claborn Dep. at 148:25–155:6; General Order 33, at 2–3.) Furthermore, Sgt. Claborn never
even spoke with Officer Estrada about the events of February 18, 2009. (Claborn Dep. at 66:25–
67:5.) The Court concedes that this case, unlike Grandstaff, did not involve numerous officers
of the police department. However, beyond that, it cannot say that the facts are otherwise less
egregious, or that the municipality’s actions are any less indicative of a “concern[] . . . only with
unworthy, if not despicable, means to avoid legal liability.” Grandstaff, 767 F.2d at 166.
12
The record does reveal that in August of 2007, Aaron was arrested for reckless driving when an officer saw him
driving a vehicle at over 100 miles per hour and changing lanes without signaling. (Moreland Medical Records,
Initial Evaluation at 1; Doc. No. 32, Mot. for Summ. J. at 7.) This arrest led ultimately to a seventeen day
hospitalization and a diagnosis of schizoaffective disorder. (Moreland Medical Records, Initial Evaluation at 1.)
23
Furthermore, a factfinder could conclude that, even on Officer Estrada’s version of
events, firing a weapon, while apparently losing consciousness, in response to being struck by a
mentally ill individual who was known to be unarmed, without any awareness of where innocent
bystanders were positioned, was “manifestly indefensible.” James, 508 F. Supp. at 554; Allen,
2008 WL 905905, at *8. This is especially so because the facts reveal that Officer Estrada had
no bruising on his face, only some redness he contends was a result of the punches. (Estrada
Dep. at 254:1–255:2; Doc. No. 72-14, Photos of Estrada’s Injuries.) Additionally, as mentioned,
the location of the gunshot wounds suggests that Aaron may have been retreating at the time that
Officer Estrada employed deadly force. (Autopsy Report at 4–6.) Furthermore, evidence exists
that, during and shortly after the incident, Officer Estrada appeared to be having difficulty
assessing the situation around him. (See, e.g., Claborn Dep. at 67:6–19, 69:4–15 (discussing
how Officer Estrada did not know Aaron’s location in relation to himself when he first fired
beyond believing that Aaaron was close enough to be striking him); Estrada Dep. at 275:22–
277:18 (describing how after the shooting, Officer Estrada believed Aaron was grabbing him and
attempted to shoot his gun again, but it turned out that it was his fellow officer who had just
entered the house).)
While the Court is keenly aware of its obligation to review the
reasonableness of the use of deadly force from “the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight,” Graham v. Connor, 490 U.S. 386, 396
(1979), these facts, in totality, strongly suggest that Officer Estrada may not have assessed the
situation and threat level the way a reasonable officer would have.
Furthermore, a factfinder could interpret Chief Krahn’s and Sgt. Claborn’s unusual
investigation of the incident and Sgt. Claborn’s decision not to even discuss the incident with
24
Officer Estrada, as indicative of ratification. Cf. Santibanes, 654 F. Supp. 2d at 613–14 (noting
that policymaker’s decision not to view certain evidence that raises questions about plausibility
of a subordinate’s explanation supports a finding of ratification). Indeed, some of the statements
made in Chief Krahn’s declaration would further support the conclusion that, although an
investigation was held, Chief Krahn never actually assessed whether Officer Estrada acted
reasonably, and instead assumed that if Officer Estrada felt endangered, then his use of force was
necessarily justified. (See, e.g., Krahn Decl. ¶ 24 (noting that Chief Krahn found it “significant”
that Officer Estrada “made no evaluation of whether shooting Hobart would be authorized by
any city policy, police department regulation or training but, instead fired driven only by the selfpreservation basic instinct to avoid dying at that instant”); id. ¶ 29 (explaining that Chief Krahn
does “not believe it appropriate for me to now sit in the comfort of my office . . . and substitute
my personal opinion in place of Officer Estrada[’s] about the seriousness, or imminence of the
danger he perceived when he made the decision fire”). The Court recognizes that “policymakers
who simply go along with a subordinate’s decision do not thereby vest final policymaking
authority in the subordinate, nor does a mere failure to investigate the basis of as subordinate’s
discretionary decisions amount to such a delegation.” Milam, 113 Fed. App’x at 627 (citing
Praprotnik, 485 U.S. at 130) (quotation marks omitted). However, once a policymaker does
initiate an investigation, surely this Court must be entitled to consider whether that investigation
was merely a rubberstamping process.
The City and Chief Krahn spend a significant part of their Motion arguing, again, that
Officer Estrada acted reasonably and that SPD’s training policies meet constitutional standards.
(Doc. No. 94, ¶¶ 10–15, 24–30.) The Court finds these arguments unpersuasive. First, the April
25
2011 Order and the April 2012 Order explain in detail that genuine issues of material fact exist
as to both of these points.13 Second, the Court does not find existence of some evidence which
supports Officer Estrada’s decision to fire dispositive of the ratification claim. (See Doc. No. 94,
¶ 10 (arguing that a summary judgment record that contains factual evidence supporting Officer
Estrada’s decision cannot support a claim of ratification). The question before the Court is
whether the Chief Krahn ratified Officer Estrada’s actions and the basis for them. Praprotnik,
485 U.S. at 127.
A factfinder may conclude that Chief Krahn ratified the alleged
unconstitutional basis for the actions if the record supports a conclusion that, even on Officer
Estrada’s version of the facts, his actions were “manifestly indefensible.” Allen, 2008 WL
905905, at *8. This Court finds genuine issues of material fact as to whether Chief Krahn
actually assessed the reasonableness of Officer Estrada’s actions, or whether he simply assumed
that Officer Estrada’s belief that he was facing a threat of death or serious bodily injury
necessarily justified the use of deadly force. The combination of physical evidence from the
February 18, 2009 incident, and evidence of Officer Estrada’s state of mind may lead a jury to
conclude that, even on Officer Estrada’s own facts, his actions were manifestly indefensible.
Even if the record does contain some evidence supporting Officer Estrada’s decision, a jury
could nonetheless find that the totality of the circumstances here overwhelmingly reveal the
indefensibility of his actions. Cf. Grandstaff, 767 F.2d at 166 n.1 (finding ratification indicative
of policy of dangerous recklessness even though some of the officers claimed that they had seen
Grandstaff fumbling near his waistline, and believed that he was reaching for a gun).
13
Furthermore, because the Court understands a § 1983 ratification claim to be independent of any pre-existing
policies, the Court finds the arguments put forward about the SPD’s policies irrelevant.
26
The Court admits that ratification is rarely a viable theory in this Circuit. If only a few of
the facts in this case were different, this Court would be obliged to conclude that no reasonable
jury could find that the City was liable based on ratification. However, the totality of the facts
here, including the physical evidence from the February 18, 2009 incident, evidence of Officer
Estrada’s state of mind, and indications in the record that Chief Krahn did not consider it his role
to evaluate the reasonableness of Officer Estrada’s assessment of the threat level convince this
Court that a reasonable jury could find the City liable on a ratification theory. Accordingly,
Defendants’ Motion for Summary Judgment Addressing Ratification Theory of Recovery (Doc.
No. 94) must be DENIED as to the City of Stafford.
B. § 1983 claim against Chief Krahn based on ratification
Plaintiffs also appear to bring a § 1983 claim against Chief Krahn based on ratification.
(Doc. No. 88, Second Am. Compl., at 11 (indicating that the claims in Part B of the Complaint
are brought against the City and Chief Krahn).) A supervisory official may be held liable under
§ 1983 “only if (1) he affirmatively participates in the acts that cause the constitutional
deprivation, or (2) he implements unconstitutional policies that causally result in the
constitutional injury.” Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (citing Gates v. Tex.
Dep’t of Prot. & Reg. Servs., 537 F.3d 404, 435 (5th Cir. 2008). This Court is aware of, and
Plaintiffs have cited, no cases that impose liability on a supervisor based on ratification.14 To the
extent that ratification might, in some instances, be characterized as the implementation of an
unconstitutional policy that “causally result[s] in the constitutional injury,” id., as explained
extensively supra Part III.A, subsequent ratification of a subordinate’s excessive use of force
14
Indeed, neither party addresses the bases for supervisory liability, apparently assuming that ratification may serve
as a basis for supervisory liability. Instead, they dispute only whether Krahn is entitled to qualified immunity, an
issue that is irrelevant in light of the Court’s holding.
27
does not cause the constitutional injury. Accordingly, this Court finds that, as a matter of law,
no claim may be stated against Chief Krahn based on ratification of a subordinate’s allegedly
excessive use of force.
IV. CONCLUSION
For the reasons discussed above, the Court finds that Defendants’ Motion for Summary
Judgment Addressing Ratification Theory of Recovery (Doc. No. 94) must be GRANTED IN
PART and DENIED IN PART. Specifically, Defendants’ motion must be DENIED as to
Plaintiffs’ claims against the City and GRANTED as to the Plaintiffs’ claims against Chief
Krahn.
Furthermore, because qualified immunity has now been determined as to each claim
against Officer Estrada and Chief Krahn, the Court reinstates those portions of its April 2011
denying Officer Estrada’s motion for summary judgment based on qualified immunity and those
portions of its April 2012 order denying Chief Krahn’s motion for summary judgment based on
qualified immunity.
IT IS SO ORDERED.
SIGNED this the 9th day of January, 2013.
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
28
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