Diamond-Brooks et al v. City of Webster, Texas et al
Filing
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MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART 21 MOTION for Summary Judgment (Signed by Judge Keith P Ellison) Parties notified.(sloewe, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KIMBERLEY DIAMOND-BROOKS;
AND VALERIE ANN GONZALES,
Plaintiffs,
v.
CITY OF WEBSTER, TEXAS;
CHIEF RAY SMILEY; AND
RAYMOND BERRYMAN,
Defendants.
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§ CIVIL ACTION NO. 12-cv-3482
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MEMORANDUM AND ORDER
Pending before the Court is Defendants City of Webster, Texas (“the City” or
“Webster”), Chief Ray Smiley (“Chief Smiley”), and Officer Raymond Berryman’s (“Officer
Berryman”) Motion for Summary Judgment. (Doc. No. 21.) 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.
FACTUAL BACKGROUND
This lawsuit arises from a police officer-involved shooting at a nightclub in Webster,
Texas. On February 27, 2011, at 1:13 a.m., two Webster Police Department officers—Officer
Berryman and Sergeant Mark Rawls (“Sgt. Rawls”)—were dispatched to Club Eden on reports
that a fight had broken out between two patrons there. When the officers arrived at the club, Sgt.
Rawls initially stopped to speak with an employee of the club, while Officer Berryman
proceeded further into the club. From that point, there are competing versions of the facts, which
will be discussed in more detail below. But it is undisputed that, within minutes of his arrival at
Club Eden, Officer Berryman withdrew his service weapon, which subsequently discharged in
1
the direction of Plaintiff Kimberley Diamond-Brooks (“Ms. Diamond-Brooks”). The bullet
entered Ms. Diamond-Brooks’s face, traveled along her jawline, and exited the back of her neck.
Upon exiting Ms. Diamond-Brooks, the bullet then grazed the cheek of Plaintiff Valerie Ann
Gonzales. Officer Berryman contends that the shooting was accidental. Plaintiffs counter that
Officer Berryman intentionally discharged his weapon.
II.
PLAINTIFFS’ CLAIMS
Plaintiffs assert that Officer Berryman used excessive force against them in violation of
their Fourth Amendment right to be free of unreasonable seizures. (Doc. No. 1-1 (“Pet.”) at ¶ 6.)
Separately, Plaintiffs assert claims against Chief Smiley and the City for ratifying Officer
Berryman’s actions.1 (Id. at ¶ 14). Plaintiffs seek monetary damages under 42 U.S.C. § 1983
(“Section 1983”) and attorney’s fees under 42 U.S.C. § 1988. (Id. at ¶¶ 15-16.)
III.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Defendants seek summary judgment on all of Plaintiffs’ claims. As to the claims against
Officer Berryman, Defendants argue that he accidentally discharged his weapon at Club Eden,
and that an unintentional shooting cannot constitute an unreasonable seizure or a deprivation of
substantive due process as a matter of law. (Doc. No. 21 (“Mot.”), at 5-10.) Defendants
1
Plaintiffs’ state court petition also claimed that Officer Berryman deprived them of their right
to bodily security and liberty under the Fourteenth Amendment (Pet. ¶ 9); and that Chief Smiley
and the City violated their constitutional rights by promulgating “an arrest policy, habit, custom,
and/or practice” which authorized Officer Berryman’s use of excessive force and by failing to
adequately train Officer Berryman (id. at ¶¶ 7-8, 12-13). Plaintiffs’ opposition to Defendants’
Motion makes no reference to these bases for liability. The Court understands these claims to
have been abandoned. See Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th
Cir. 1998) (party opposing summary judgment “may not rest upon the mere allegations or
denials of its pleadings,” but must “adduce evidence sufficient to support a jury verdict”); see
also Carroll v. City of Dallas, Tex., No. Civ. 3:04CV2640-H, 2005 WL 3543347, at *7 (N.D.
Tex. Dec. 28, 2005) (party’s failure to respond to summary judgment on a particular issue is
“tacit abandonment of the claim”).
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additionally argue that Officer Berryman is entitled to qualified immunity. (Id. at 11-14.) As to
Plaintiffs’ claims against Chief Smiley, Defendants argue that Chief Smiley was neither a
participant in nor a cause of Officer Berryman’s use of deadly force. (Id. at 10-11.) They also
urge that Chief Smiley, like Officer Berryman, is entitled to qualified immunity. (Id. at 11-14.)
Finally, Defendants assert that there is no basis for holding the City of Webster liable for Officer
Berryman’s actions. They contend that no policy or custom, adopted by or known to an official
policymaker of the City, was the moving cause of Officer Berryman’s use of deadly force. (Id. at
15-20.) They also argue that the theory of municipal “ratification”—to the extent it is accepted in
the Fifth Circuit—does not apply on the facts of this case. (Id. at 20-24.)
IV.
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, Tex., 247 F.3d 206, 210 (5th Cir. 2001) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986)). “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). “[T]he court should give credence
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to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party
that is uncontradicted and unimpeached, at least to the extent that that evidence comes from
disinterested witnesses.’” Id. at 151 (quoting 9A C. Wright & A. Miller, Federal Practice and
Procedure § 2529, p. 300 (2d ed. 1995)). 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., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986)).
V.
ANALYSIS
A.
Fact issues preclude summary judgment on Ms. Diamond-Brooks’s Fourth
and Fourteenth Amendment claim
The Fourth Amendment to the Constitution states:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.
U.S. CONST. amend. IV. The Supreme Court has held that a police officer’s use of force may
constitute a seizure under the Fourth Amendment. See Tenn. v. Garner, 471 U.S. 1, 7 (1985)
(“Whenever an officer restrains the freedom of a person to walk away, he has seized that
person.”). But an act of force does not implicate the Fourth Amendment unless it is intentional.
See Brower v. Cnty. of Inyo, 489 U.S. 593, 596-97 (1989) (“[A] Fourth Amendment seizure . . .
[occurs] only when there is a governmental termination of freedom of movement through means
intentionally applied.”) (emphasis original); see also Santibanes v. City of Tomball, Tex., 654 F.
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Supp. 2d 593, 602 (S.D. Tex. 2009) (“[O]nly intentional conduct of government actors invokes
the protections of the Fourth Amendment.”). Consequently, if a police officer accidentally
discharges his service weapon and injures—or even kills—another person, the shooting may
constitute a tort. But it cannot constitute a seizure for purposes of the Fourth Amendment. See
Watson v. Bryant, 532 Fed. App’x. 453, 457 (5th Cir. 2013) (concluding that, in the absence of
evidence that police officer intended to use deadly force, “the negligent shooting here did not
itself violate [the plaintiff’s] Fourth Amendment rights”).
1.
Defendants’ own summary judgment evidence indicates a fact issue
Officer Berryman reports that he never intentionally discharged his weapon at Club Eden
on February 27, 2011. The following description of events is recorded in a notarized
memorandum drafted by Officer Berryman to Chief Smiley on the day of the shooting.2
According to Officer Berryman, upon arriving at the club, he observed two people
actively fighting.3 The lighting was poor, and the area around the fight was crowded. Officer
Berryman claims that he attempted to break up the fight, but that one participant—later identified
as Michael Maximus Roman (“Ms. Roman”)—became physically aggressive towards him. Sgt.
Rawls arrived and took Ms. Roman to the ground. When she tried to stand back up, Officer
Berryman withdrew his taser and deployed it to Ms. Roman’s abdomen area.4 Officer Berryman
observed that the taser did not work effectively and that Sgt. Rawls continued to struggle to
subdue Ms. Roman.
2
(Doc. No. 21-2, at 61-62.)
3
According to the police report, the officers arrived at Club Eden at approximately 1:14 a.m.
(Doc. No. 21-2, at 48.)
4
According to the police report, Officer Berryman’s taser was deployed at approximately 1:15
a.m. (Doc. No. 21-2, at 38-39.)
5
At that point, Officer Berryman claims, an unknown person placed his or her arm around
his neck from behind and started to pull him backwards. Officer Berryman states that his head
was pulled upwards due to the force being applied by the person behind him. He claims that he
was unable to turn, and that he could not speak or inhale. He feared losing consciousness. Officer
Berryman then reholstered his taser and withdrew his service weapon, a Glock Model 22. He
reports that people began grabbing at his right arm and hand, which held the pistol. He states that
the gun discharged once, but that he does not believe he pulled the trigger.5
Officer Berryman’s account is corroborated, to some extent, by Sgt. Rawls. The Court
has been provided a report composed by Sgt. Rawls several hours after the shooting.6 When Sgt.
Rawls joined Officer Berryman inside Club Eden, he observed Officer Berryman struggling with
Ms. Roman. He confirms that the lighting was poor, and that patrons were crowded around
Officer Berryman and Mr. Roman. He states that he knocked Ms. Roman to the ground, as
reported by Officer Berryman. He also states that Officer Berryman deployed his taser on Ms.
Roman, after which Sgt. Rawls attempted to place Ms. Roman under arrest.
At this point, Sgt. Rawls’s and Officer Berryman’s accounts diverge. Sgt. Rawls reports
that another female—later identified as Plaintiff Kimberley Diamond-Brooks7—ran toward him
and struck him on his right side while yelling, “Leave her alone!” Sgt. Rawls then attempted to
place Ms. Diamond-Brooks in custody. During this process—which he reports Ms. DiamondBrooks resisted—Sgt. Rawls heard the gunshot and scanned the area for its source. He observed
5
According to the police report, shots were fired at approximately 1:16 a.m. (Doc. No. 21-2, at
51.)
6
(Doc. No. 21-2, at 27-28.)
7
In the police report, Ms. Diamond-Brooks is referred to as “Kimberley Roman.” To reduce
confusion with Ms. Michael Maximus Roman, the Court will refer to Ms. Diamond-Brooks by
the name used in her state court petition.
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Officer Berryman “with his sidearm at the low ready.” Sgt. Rawls states that patrons were behind
Officer Berryman and appeared to be pushing him. Sgt. Rawls does not claim to have observed
any individual choking Officer Berryman from behind.
Defendants also attach to their Motion four witness statements procured shortly after the
shooting. (Doc. No. 21-3, at 1-11.) Although each witness describes, to varying levels of detail,
the scuffle between a woman with tattoos on her neck (ostensibly Ms. Roman) and one or two
police officers (Officer Berryman and Sgt. Rawls), as well as Ms. Roman’s subsequent tasering,
no witness reports that Officer Berryman was placed in a chokehold by a patron. No witness
corroborates that patrons began pulling on Officer Berryman’s arm and hand after he withdrew
his gun. And no witness saw Ms. Diamond-Brooks struggling with Sgt. Rawls prior to being
shot, as Sgt. Rawls claims.
The Court has reservations about whether this evidence carries Defendants’ burden. On
summary judgment, Defendants must show the Court that there exists “no genuine dispute as to
any material fact” for a jury to try. FED. R. CIV. P. 56(a). But the Defendants’ own evidence,
taken in the light most favorable to Plaintiffs, suggests a genuine issue of material fact that must
be tried to a jury. It is undisputed that Officer Berryman withdrew his weapon; that the weapon
was functioning properly; and that the weapon was in his hand when it fired at Ms. DiamondBrooks, only a few feet away. From this alone, it would be fair to infer that Officer Berryman
intended to fire his weapon. See Santibanes, 654 F. Supp. 2d at 604 (noting that, in absence of
malfunction, “the only logical explanation for [the weapon’s] discharge is that [the officer
defendant] applied force to its trigger mechanism”).
To defeat this inference, Defendants rely on Officer Berryman’s testimony that someone
else in the crowd operated the trigger to his weapon or caused him to operate the trigger to his
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weapon. Although a jury could find Officer Berryman not credible, this possibility alone may not
be enough to create a fact issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57
(1986) (“[D]iscredited testimony is not normally considered a sufficient basis for drawing a
contrary conclusion.”) (quotation marks and citation omitted). But Officer Berryman is not the
only available source of information for the events in question. His own account recognizes that
a bar full of people were present when the shot was fired. Written statements from four of these
witnesses are included in Defendants’ summary judgment evidence, as are summaries of
statements from at least a dozen others.8 And no one corroborates Officer Berryman’s testimony
that patrons were grabbing at his arm and hand after he withdrew his weapon. Indeed, one
eyewitness, Ms. Gonzales, reported that, while there was a “group of people . . . behind the girl
that got [tased],” there was “no group around the officers.” (Doc. No. 21-3, at 8.)
Additionally, there are inconsistencies between Sgt. Rawls’s and Officer Berryman’s
accounts which cast doubt on Officer Berryman’s assertion that someone else caused the gun to
fire. According to Sgt. Rawls’s narrative, he was struggling with Ms. Diamond-Brooks when the
gunshot went off. (Doc. No. 21-2, at 27.) When he heard the pop of gunfire, however, he
immediately “scanned” the area and saw Officer Berryman. (Id.) Subsequently, the woman next
to him—Ms. Diamond-Brooks—fell to the ground. (Id.) Taking this testimony in logical
sequence, Sgt. Rawls was not looking at Officer Berryman when the gun went off, but had eyes
on him almost immediately afterward, before Ms. Diamond-Brooks had even reacted to being
shot. Yet he did not see Officer Berryman in a chokehold, and he did not see anyone holding or
8
The Court acknowledges that many of these witnesses indicated that they did not see the
shooting itself. At least one witness, however, appears to have been watching Officer Berryman
at the time the shot was fired. This witness stated that Officer Berryman told Ms. DiamondBrooks to “stay back,” and then “pulled his side arm and shot [her].” (Doc. No. 21-2, at 32.)
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grabbing Officer Berryman’s arm. At most, he observed patrons pushing Officer Berryman
forward. (Id.)
Due to these inconsistencies, as well as the failure of any eyewitness to corroborate
Officer Berryman’s testimony that one patron had put him in a chokehold while others grabbed
his weapon arm, the Court is not satisfied that Defendants have met their burden on summary
judgment—to show no factual dispute exists as to whether Officer Berryman intentionally fired
his weapon. Even if they had, however, this would simply shift the burden to Plaintiffs to
produce some evidence to put the factual issue back in play. The Court thus turns to Plaintiffs’
opposition evidence.
2.
Ms. Diamond-Brooks has demonstrated a fact issue as to Officer
Berryman’s intent
The Court begins with the affidavits of Plaintiffs, Ms. Diamond-Brooks and Ms.
Gonzales. Unfortunately, these accounts are lacking important details necessary to understand
the events being described. Most notably, Ms. Diamond-Brooks and Ms. Gonzales fail to
distinguish between Sgt. Rawls and Officer Berryman in their narratives. (Doc. No. 27-2, at 2,
5.) Indeed, it is unclear whether Ms. Gonzales even knew there were two officers present on
scene. (Id. at 5.) So, while it is clear that both women were looking at one of the officers
immediately preceding the gunshot, the Court cannot eliminate the possibility that they were
looking at Sgt. Rawls and therefore could have failed to see Officer Berryman in a chokehold.
Other affidavits supplied by Plaintiffs are more straight-forward. Three eyewitnesses—
Ashley Rasmussen, Amanda Jacobs, and Amber Williams—claim to have seen Officer
Berryman pull his weapon and shoot Ms. Diamond-Brooks. (Doc. No. 27-2, at 8-9, 12, 18.)
None reports that Officer Berryman was in a chokehold or being mobbed by other patrons. (Id.)
In fact, Ms. Williams expressly disputes that either of these events occurred. (Id. at 18.) These
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accounts are sufficient to present a fact issue as to whether the shooting was accidental or
intentional.
Defendants raise objections to the consideration of this evidence, however. Their primary
objection is that Plaintiffs failed, in discovery, to disclose the identities of Ms. Rasmussen and
Ms. Jacobs as witnesses with information relevant to the claims and defenses in this litigation.
(Doc. No. 28, at 1-2.) Under the Federal Rules, a party who fails to disclose a witness is not
allowed to use that witness at trial “unless the failure was substantially justified or is harmless.”
FED. R. CIV. P. 37(c)(1). Defendants seek exclusion of Ms. Rasmussen’s and Ms. Jacobs’s
affidavits from the summary judgment record. (Doc. No. 28, at 2.) Ostensibly, Defendants will
also object to Ms. Rasmussen and Ms. Jacobs testifying at trial.
The Court is very concerned about Plaintiffs’ apparent failure to provide the names of
Ms. Rasmussen and Ms. Jacobs to Defendants during the course of discovery. This failure is
made even more perplexing by the fact that Plaintiffs’ counsel provided Ms. Rasmussen’s and
Ms. Jacobs’s names to an investigator for the Harris County District Attorney’s Office two days
after the shooting. (Doc. No. 28-1, at 2.) The Court believes that Plaintiffs must provide an
explanation of why the omission was “substantially justified” or “harmless” in order to avoid
some sanction under Rule 37 and has requested additional briefing from the parties.9 (Doc. No.
29.) Because the Court has not yet ruled upon Defendants’ objection, however, it will limit its
analysis on summary judgment to whether Plaintiffs have successfully shown a fact issue as to
Officer Berryman’s intent absent Ms. Rasmussen’s and Ms. Jacobs’s accounts.
9
Rule 37 does not obligate a court to exclude a witness if the witness was not properly disclosed,
although it certainly contemplates that this would be the typical sanction for such failure. FED. R.
CIV. P. 37(c)(1). If Rule 37 was indeed violated in this case, the Court will consider the
circumstances surrounding Plaintiffs’ failure to disclose, the prejudice visited upon Defendants,
and the importance of the issues at the heart of this case before determining how best to address
the violation.
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Without Ms. Rasmussen and Ms. Jacobs, and assuming that Defendants’ evidence is
sufficient to carry their summary judgment burden, Plaintiffs must rely upon Ms. Williams to
show an issue of fact regarding whether Officer Berryman intentionally fired his weapon at Ms.
Brooks-Diamond. Although Ms. Williams was clearly disclosed to and known by Defendants,
Defendants nonetheless object to her testimony on the basis that she lacks personal knowledge of
the facts. (Doc. No. 28, at 6-7.) The Court finds this objection wholly unpersuasive. Within two
to three minutes of the officers’ arrivals at Club Eden, Ms. Diamond-Brooks had been shot. The
relevant events occurred in a confined space, and in a compressed period of time. Ms. Williams
may testify as to her personal observations. To the extent that her testimony is unclear or
contradictory, Defendants are free to cross-examine on these points at trial.10 At the summary
judgment stage, the Court may not judge credibility or weigh competing evidence. Reeves, 530
U.S. at 150. Its task is limited to deciding whether Plaintiffs have identified “evidence on which
[a] jury could reasonably find” that Officer Berryman intentionally fired his weapon at Ms.
Diamond-Brooks. Anderson, 477 U.S. at 252. With Ms. Williams’s affidavit, Plaintiffs have met
their burden.
B.
Because there is no evidence that Officer Berryman intended to shoot Ms.
Gonzales, Defendants are entitled to summary judgment on her claims
While Plaintiffs’ evidence demonstrates a factual dispute as to whether Officer Berryman
intentionally fired his weapon at Ms. Diamond-Brooks, it is undisputed that Ms. Gonzales was
10
Defendants suggest that Ms. Williams’s affidavit is a “sham” affidavit because it conflicts with
the statement she gave to police immediately after the shooting. (Doc. No. 28, at 6; Doc. No. 30
(“Reply”), at 3.) The Court disagrees that Ms. Williams’s affidavit is irreconcilable with her
purported on-scene statement, as recorded in the police reports. Therefore, the Court will not
exclude Ms. Williams’s affidavit under the “sham” affidavit doctrine, or consider it no evidence
of the facts alleged within. See Guerrero v. Total Renal Care, Inc., 932 F. Supp. 2d 769, 776
(W.D. Tex. 2013) (“[T]he sham-affidavit rule ‘is applied sparingly’ and may be invoked only
where there is ‘some inherent inconsistency between an affidavit and a deposition.’”) (quoting
Axxiom Mfg., Inc. v. McCoy Invs., Inc., 846 F. Supp. 2d 732, 749-50 (S.D. Tex. 2012)).
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simply an innocent bystander. She was not interacting with the officers at the time the gun
discharged. She was wounded by the bullet only after it exited Ms. Diamond-Brooks. In short,
there is no evidence to suggest that Officer Berryman targeted Ms. Gonzales in an attempt to
“seize” her. Although Ms. Gonzales clearly suffered injury as a result of Officer Berryman’s
actions, her constitutional rights were not implicated. Defendants are entitled to summary
judgment on her claims.
C.
Fact issues at to Officer Berryman’s intent prevent him from invoking
qualified immunity
The jury’s determination of whether Officer Berryman intended to shoot Ms. DiamondBrooks will also decide whether Officer Berryman may invoke qualified immunity. Qualified
immunity protects a police officer from facing trial on an excessive force claim when a
reasonable officer in his position would not have known that his conduct was unlawful under
clearly established law. See Saucier v. Katz, 533 U.S. 194, 201-02 (2001). If Officer Berryman
intentionally discharged his weapon at Ms. Diamond-Brooks—an unarmed woman who posed
no serious physical threat to the officers or to other patrons—the safe harbor of qualified
immunity is clearly unavailable to him. See Bazan v. Hidalgo Cnty., 246 F.3d 481, 488 (5th Cir.
2001) (“[D]eadly force violates the Fourth Amendment unless ‘the officer has probable cause to
believe that the suspect poses a threat of serious physical harm, either to the officer or to
others.’”) (quoting Garner, 471 U.S. at 11) (emphasis original). Defendants do not contend
otherwise. (Mot. at 13 (arguing that Officer Berryman is entitled to qualified immunity because it
was not clearly established, at the time of the shooting, that an accidental discharge could be
deemed a seizure).)
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D.
Chief Smiley did not participate in or cause Officer Berryman’s alleged use
of excessive force
Under Section 1983, supervisory officials are not liable for the actions of subordinates on
a theory of vicarious liability. Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 459 (5th Cir.
2001). Instead, the “misconduct of the subordinate must be affirmatively linked to the action or
inaction of the supervisor.” Southard v. Tex. Bd. of Criminal Justice, 114 F.3d 539, 550 (5th Cir.
1997). Supervisory liability may attach only if a supervisory official affirmatively participates in
an act that violates the Constitution, or implements an unconstitutional policy that causes the
plaintiff’s injury. Baker v. Putnal, 75 F.3d 190, 199 (5th Cir. 1996). Defendants note that Chief
Smiley was not present at Club Eden at the time of the shooting. He did not order or authorize
Officer Berryman to use deadly force. And he did not implement any policy or custom which
caused Officer Berryman to use deadly force. On the basis of these facts, Defendants seek
summary judgment on the claims against Chief Smiley. (Mot. at 10-11.)
Plaintiffs do not dispute the facts recited by Defendants, but argue that Chief Smiley
participated in the constitutional violation because he obstructed the investigation into the
shooting. (Doc. No. 27, at 10-12.) According to Plaintiffs, an eyewitness to the shooting—
Ashley Rasmussen—approached Chief Smiley outside Club Eden that night. She tried to tell him
what she saw. Twice, Ms. Rasmussen reports, Chief Smiley told her to “sit down” and “be quiet”
if she knew what was best. Ms. Rasmussen left that night without telling any officer what she
saw.11 (Doc. No. 27-2, at 9.)
These actions, if true, are disturbing and disheartening. But they are insufficient to make
Chief Smiley a participant in or a cause of Officer Berryman’s use of deadly force. The
11
As previously noted, Defendants have objected to Ms. Rasmussen’s testimony. The Court
includes her testimony in its analysis of the claim against Chief Smiley for purposes of
thoroughness, without deciding whether Defendants’ objection should be sustained or overruled.
13
constitutional tort alleged here is the unlawful use of deadly force, not any alleged efforts after
the fact to protect Officer Berryman. Chief Smiley was not present at the time of the shooting.
Plaintiffs have no evidence that his policies or actions prior to the shooting caused Officer
Berryman to fire his service weapon. And Chief Smiley cannot be liable on the theory that he
“ratified” Officer Berryman’s conduct. See Hobart v. City of Stafford, 916 F. Supp. 2d 783, 799
(S.D. Tex. 2013). Because Chief Smiley played no a priori role in Officer Berryman’s use of
deadly force, he is entitled to summary judgment.
E.
Plaintiffs have not shown a triable issue of fact regarding their theory that
the City of Webster ratified an excessive use of force
Municipalities are considered “persons” subject to suit under Section 1983 for civil rights
violations. Monell v. New York City 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, Tex., 181 F.3d 613, 615 (5th Cir. 1999). This is because
Section 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 Section 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). Although Plaintiffs alleged this theory of municipal liability in their original
state court petition, they do not refer to it or support it with evidence in their opposition to
Defendants’ Motion. Plaintiffs therefore cannot avoid summary judgment on their
unsubstantiated theory that municipal policies or customs caused Officer Berryman to use deadly
force against Ms. Diamond-Brooks.
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Instead, Plaintiffs argue that the City of Webster is liable under Section 1983 because it
ratified Officer Berryman’s actions after the fact. (Doc. No. 27 (“Opp.”), at 13-23.) The
ratification theory of municipal liability can be traced to the Supreme Court case City of St. Louis
v. Praprotnik, 485 U.S. 112 (1988). In Praprotnik, a plurality of the Supreme Court recognized
“a scenario in which a municipality could be held liable for a single episode of conduct initiated
by a non-policymaker employee.” Milam v. City of San Antonio, 113 Fed. App’x 622, 626 (5th
Cir. 2004). 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 Court has had occasion to address the ratification theory at length, particularly in the
context of an excessive force claim. As the Court noted in Hobart v. City of Stafford, the
ratification theory is an uneasy fit in excessive force cases, as it is difficult to conceptualize how
a policymaker’s actions subsequent to the use of force can in any way be considered a “cause” of
that use of force. See 916 F. Supp. 2d at 795. Nonetheless, as the Fifth Circuit has not
delegitimized the ratification theory in excessive force cases, the Court will endeavor to assess
whether Plaintiffs have provided sufficient evidence of ratification to survive summary
judgment.
Although frequently argued, the ratification theory is rarely successful in excessive force
cases. See Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 848 n.2 (5th Cir. 2009); Hobart,
916 F. Supp. 2d at 798. This is due, at least in part, to the fact that a policymaker need do more
than simply approve or condone a subordinate’s use of force; he must also approve or condone
15
the basis on which the force was deployed. See James v. Harris Cnty., 508 F. Supp. 2d 535, 554
(S.D. Tex. 2007) (noting that the ratification theory is only viable if the policymaker approved of
the use of force despite “[knowing] that the shooting . . . was clearly excessive to [the officer’s]
apparent need to defend himself”); Allen v. City of Galveston, Tex., Civil Action No. G-06-467,
2008 WL 905905, at *8 (S.D Tex. March 31, 2008) (similar); see also Praprotnik, 485 U.S. at
127 (“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.”) (emphasis
added). It is undisputed that Chief Smiley—a purported policymaker for the City of Webster12—
evaluated Officer Berryman’s conduct and concluded that he did not violate City policies and
customs. (Doc. No. 21-1, at 38-39.) In other words, he “approved” the use of force—or, more
accurately, absolved Officer Berryman of wrongdoing—on the basis that the shooting was
accidental. But this does not end the ratification inquiry. When factual disputes are material to
whether a conscious decision to employ force was excessive, the policymaker does not “ratify”
unconstitutional behavior simply because he believes the officer’s version of events, see James,
508 F. Supp. 2d at 554, even if that version is subsequently proven to be wrong. See Peterson,
588 F.3d at 848. Similarly, in this case, because there is a legitimate factual dispute as to whether
Officer Berryman consciously employed force against Ms. Diamond-Brooks, the City has not
“ratified” any unlawful behavior simply because it accepts Officer Berryman’s account that the
shooting was accidental. This is true even if the jury ultimately reaches a different conclusion.
12
Defendants argue that the City’s elected Council is the City’s only policymaker. (Doc. No. 21
(“Mot.”) at 21 n.5; Reply at 6 n.4, 7.) Because Defendants have not sufficiently supported this
argument with evidence, and because it does not alter the Court’s conclusion, the Court will
assume that Chief Smiley is properly considered a policymaker for the City of Webster.
16
The question on summary judgment then becomes whether Plaintiffs have identified
evidence sufficient for a jury to find that Chief Smiley approved Officer Berryman’s use of force
despite knowing that it was unlawful and excessive. See McIntosh v. Smith, 690 F. Supp. 2d 515,
534 (S.D. Tex. 2010) (granting summary judgment on municipal ratification theory because the
plaintiff “failed to produce any evidence from which a reasonable factfinder could conclude” that
the police department found the officer’s actions reasonable despite “knowing that [the officer]
had actually acted improperly”); see also James, 508 F. Supp. 2d at 554; Allen, 2008 WL
905905, at *8. When the use of force is arguably excessive even under the officer’s version of the
facts, this question is simplified. Thus, in Hobart, this Court found that the plaintiff’s ratification
theory survived summary judgment, because “a factfinder could conclude that, even on [the
officer’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.’” 916 F.
Supp. 2d at 797 (quoting James, 508 F. Supp. 2d at 554); see also Coon v. Ledbetter, 780 F.2d
1158, 1162 (5th Cir. 1986) (“[The sheriff] defended his deputies afterward, but it is undisputed
that in doing so he was accepting their version of what happened. Unlike almost any conceivable
version of the Grandstaff13 episode, that version did not show that the deputies’ actions were
manifestly indefensible.”).
The difficulty in this case is that Officer Berryman’s version of the facts admits no
constitutional infirmity. And case law is clear that Chief Smiley is entitled to believe Officer
Berryman’s account, without thereby subjecting the City to municipal liability if he is incorrect.
13
Grandstaff v. City of Borger, Tex., 767 F.2d 161 (5th Cir. 1985).
17
Plaintiffs again offer the testimony of Ashley Rasmussen as support for the allegation
that Chief Smiley prevented a robust investigation into the shooting.14 (Opp. at 11-12, 21-22.) As
explained above, Ms. Rasmussen claims that Chief Smiley discouraged her from giving a
statement about what she saw at Club Eden, twice warning her to “sit down” and “be quiet” if
she knew what was best. (Doc. No. 27-2, at 9.) Plaintiffs also note inconsistencies in and
weaknesses of the Webster Police Department’s criminal and internal affairs investigation of the
shooting. For example, the investigating detective—Detective Pray—concluded that no witness
observed the shot being fired, despite the fact that the bar was, by all accounts, quite crowded at
the time of the incident and despite the fact that at least one witness indicated that he had eyes on
Officer Berryman when he fired his weapon. (Opp. at 20-21; Doc. No. 21-2, at 32.) Additionally,
neither Det. Pray nor the internal affairs investigator spoke with Ms. Diamond-Brooks to get her
side of the story.15 (Doc. No. 27-2, at 3.) Plaintiffs compare these purportedly inadequate, halfhearted investigations with the thorough investigation performed by investigator Kirk Bonsal of
the Harris County District Attorney’s Office.
As the Court interprets Plaintiffs’ argument, they appear to offer these facts—which are
disputed by Defendants—as evidence that Chief Smiley and the Webster Police Department
failed to thoroughly investigate the shooting. But failure to investigate is not ratification. Indeed,
the Supreme Court has been clear that accepting a subordinate’s actions without any
14
As before, the Court includes Ms. Rasmussen’s testimony in its analysis of the ratification
claim against the City for purposes of thoroughness, without deciding whether Defendants’
objection to her testimony should be sustained or overruled.
15
The internal affairs investigator notes in his report that he attempted to interview Ms.
Diamond-Brooks, but she refused to speak with him. (Doc. No. 21-2, at 66.) The Court credits,
as required on summary judgment, Ms. Diamond-Brooks’s testimony that no one from Webster
Police Department attempted to interview her. (Doc. No. 27-2, at 3.)
18
investigation does not render the municipality liable for the subordinate’s unconstitutional
decision. See Praprotnik, 485 U.S. at 130 (“[T]he mere failure to investigate the basis of a
subordinate’s discretionary decisions does not amount to a delegation of policymaking
authority[.]”).
Nor is there any legal authority for subjecting a municipality to liability simply because it
inadequately performs an investigation once it has been initiated.16 Even assuming that Chief
Smiley sided with Officer Berryman on incomplete information, Plaintiffs have no evidence that
his decision would have differed if the investigations had been more robust. See James, 508 F.
Supp. 2d at 546 (rejecting theory that municipality’s alleged custom of under-investigating uses
of force caused the plaintiffs’ injuries because there was “no evidence that any of the
investigation outcomes likely would have changed” if the investigations had been more
thorough). Indeed, the fact that Investigator Bonsal’s admittedly thorough investigation on behalf
of the Harris County District Attorney resulted in no criminal charges against Officer
Berryman17 suggests the exact opposite conclusion—that Chief Smiley would have credited his
officer’s account even on a fuller record of the events in question.
Some Section 1983 plaintiffs have argued that inadequate use of force investigations—
performed as a matter of course—may constitute a custom of “rubber stamping” use of force
16
The Court does not wish to suggest that shoddy or inadequate investigation practices are
irrelevant to the ratification inquiry. To the contrary, as the Court explicitly noted in Hobart,
deviation from typical practices, or a pattern of behavior evincing willful ignorance, may bolster
other evidence suggesting ratification. See Hobart, 916 F. Supp. 2d at 798 (“[O]nce a
policymaker does initiate an investigation, surely this Court must be entitled to consider whether
that investigation was merely a rubberstamping process.”); see also Santibanes, 654 F. Supp. 2d
at 613-14. But, as the Court reads Praprotnik and other relevant case law, poor investigation
techniques alone are insufficient to provide Section 1983 recourse against a municipality.
17
After investigating the February 27, 2011 shooting, Investigator Bonsal presented his findings
to a grand jury for possible criminal charges against Officer Berryman. The grand jury no billed
Officer Berryman. (Doc. No. 21-3, at 109.)
19
which then emboldens police officers to employ force with impunity. This theory may indeed be
viable under Section 1983, although it often fails for lack of proof. See, e.g., James, 508 F. Supp.
2d at 545-48; Davis v. Montgomery Cnty., Civil Action No. H:07-505, 2009 WL 1226904, at *6
(S.D. Tex. Apr. 30, 2009); Allen, 2008 WL 905905, at *5-6 & n.7. But the theory is not present
in this case. Plaintiffs have identified no prior instances in which the Webster Police Department
inadequately investigated uses of force, and they have provided no evidence that such a custom
caused Officer Berryman to deploy deadly force against Ms. Diamond-Brooks. Because
Plaintiffs simply have no evidence that Chief Smiley, on behalf of the City of Webster, approved
a conscious and unlawful use of deadly force by Officer Berryman, summary judgment must be
granted on their ratification theory.
VI.
CONCLUSION
For the reasons discussed above, the Court finds that Defendants’ Motion for Summary
Judgment (Doc. No. 21) must be GRANTED IN PART and DENIED IN PART. Specifically,
Defendants’ Motion is DENIED as to Plaintiff Kimberley Diamond-Brooks’s Fourth
Amendment claim against Defendant Raymond Berryman. In all other respects, the motion is
GRANTED.
IT IS SO ORDERED.
SIGNED in Houston, Texas, on this the sixth day of February, 2014.
________________________________
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
20
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