Green v. City of Mission et al
Filing
39
OPINION AND ORDER re 32 Opposed MOTION for Leave to File Sur-Reply Opposing Defendants' Motion for Summary Judgment, 24 MOTION for Summary Judgment , 27 MOTION to Strike Albert Rodriguez Testimony, Case terminated on 07/17/2019 (Signed by Judge Micaela Alvarez) Parties notified.(klopez, 7)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
DAVID M GREEN,
Plaintiff,
VS.
CITY OF MISSION, et al,
Defendants.
July 17, 2019
David J. Bradley, Clerk
§
§
§
§ CIVIL ACTION NO. 7:18-CV-49
§
§
§
§
OPINION AND ORDER
Before the Court is the motion for summary judgment1 filed by Javier Lara (“Lara”) and
Sean De La Rosa (“De La Rosa”) (collectively “Defendants”), the response filed by David M.
Green (“Plaintiff”),2 as well as the reply filed by Defendants.3 Also before the Court is Plaintiff’s
“Opposed Motion for Leave to File Sur-Reply Opposing Defendants’ Motion for Summary
Judgment.”4 Finally, the Court also considers Plaintiff’s “Motion to Partially Strike Albert
Rodriguez’s Proposed Testimony”5 and Defendants’ response.6
After considering the motions, the relevant authorities, and the record, the Court
GRANTS IN PART AND DENIES IN PART Plaintiff’s motion to strike, GRANTS Plaintiff’s
motion to file a sur-reply, and GRANTS Defendants’ motion for summary judgment.
I.
BACKGROUND
This summary judgment motion concerns an excessive force case involving the fatal
shooting of Plaintiff’s son, David M. Green II (“Decedent”). In sum, Plaintiff alleges that
1
Dkt. No. 24.
Dkt. No. 29.
3
Dkt. No. 31.
4
Dkt. No. 32.
5
Dkt. No. 27.
6
Dkt. No. 28.
2
1 / 49
Decedent, while suffering from mental illness, attempted to evade police by fleeing in Plaintiff’s
pick-up truck and a high-speed chase ensued, resulting in Decedent crashing into a tree.7 Plaintiff
further alleges that after the accident, officers from the Mission Police Department shot Decedent
while Decedent was still in the truck.8 On this basis, Plaintiff brought claims against three of the
police officers involved in the shooting: Officer Jorge Cabrera (“Cabrera”), Officer Javier Lara
(“Lara”), and Officer Sean De La Rosa (“De La Rosa”), as well as claims against the City of
Mission.9
Given the detailed nature of the facts and the contested nature of some of the evidence,
the Court will briefly lay out the case’s current procedural posture, then move to resolving any
evidentiary issues, before providing a more detailed factual background.
a.
Procedural Background
Plaintiff filed his original complaint in February 2018,10 and thereafter filed an amended
complaint as a matter of course.11 The amended complaint alleged claims under 42 U.S.C. §1983
against Cabrera, Lara, and De La Rosa in their individual capacities, as well as claims against the
City of Mission.12 Plaintiff also brought claims under Title II of the Americans with Disabilities
Act and Texas Tort Claims Act against the City of Mission.13
Subsequently, Defendants, including the City of Mission and Cabrera, filed a motion to
dismiss all Plaintiff’s claim.14 This Court granted Defendants’ motion in part and dismissed all
7
Dkt. No. 7 pp. 3–7, ¶¶ 10–24.
Id.
9
Id. pp. 7–8.
10
Dkt. No. 1.
11
Dkt. No. 7. The summons for all Defendants were issued February 23, 2018. Plaintiff’s first amended complaint
was filed exactly twenty-one days later—March 16, 2018, and is thus valid as a matter of course.
12
Id. pp. 7–8.
13
Id.
14
Dkt. No. 8.
8
2 / 49
Plaintiff’s claims, except Plaintiff’s claims against Defendants Lara and De La Rosa for
excessive force in violation of the Fourth Amendment.15
This Court entered a scheduling order.16 Defendants timely filed the instant motion for
summary judgment pursuant to Federal Rule of Civil Procedure (“Rule”) 56 on the grounds that
Lara and De La Rosa are entitled to qualified immunity. 17 Plaintiff responded.18 Defendants filed
a reply.19 Subsequently, Plaintiff filed a motion for leave to file a sur-reply,20 and a proposed surreply.21 In addition, Plaintiff also filed a motion22 to partially strike the testimony of Albert
Rodriguez, and Defendants replied.23 The Court now turns to its analysis.
II.
MOTION TO STRIKE
Because Plaintiff’s motion to strike24 the testimony25 of Albert Rodriguez (“Rodriguez”)
impacts the evidence to be considered in Defendant’s motion for summary judgment, the Court
considers this motion first. In consideration of Plaintiff’s motion to strike, the Court notes that it
is not the trier of fact in the summary judgment context. Thus, Plaintiff’s requests are somewhat
off the mark. Nonetheless, the Court addresses each request, but its rulings apply only in the
summary judgment context.
15
Dkt. No. 16. The Court notes that due to a scrivener’s error, the conclusion of this Court’s Opinion and Order
incorrectly stated that the remaining claim against De La Rosa and Lara were excessive force in violation of the
Eighth Amendment. However, the remaining claims are actually claims of excessive force in violation of the Fourth
Amendment, as explained in the body of the Opinion and Order. See id. at pp. 8–12.
16
Dkt. No. 13.
17
Dkt. No. 24; see also Dkt. Nos. 21 & 23 (extending deadline to file dispositive motions).
18
Dkt. No. 29. Plaintiff concedes that summary judgment should be granted as to De La Rosa. Id. at p. 1 n. 1.
19
Dkt. No. 31.
20
Dkt. No. 32.
21
Dkt. No. 32-1.
22
Dkt. No. 27.
23
Dkt. No. 28.
24
Dkt. No. 27.
25
Dkt. No. 24-14.
3 / 49
Plaintiff argues Rodriguez’s testimony has been previously struck by federal courts and
therefore has a history of being found to lack credibility. 26 Plaintiff also argues the testimony of
Rodriguez should be stricken because Rodriguez testified on matters upon which he is not an
expert and because Rodriguez testified on matters not helpful or relevant to the jury.27
Specifically, Plaintiff argues Rodriguez is not qualified to testify: (1) about memory and witness
perception theories; (2) about airbags; (3) as a legal expert; and (4) about issues that are not
relevant or helpful to the jury.
Defendants object to Plaintiff’s reference to decisions by other federal courts to exclude
Rodriguez’s testimony.28 In addition, Defendants respond to each of Plaintiff’s requests to strike
and argue why each should not be stricken.29
The Court, after considering the motion, GRANTS IN PART and DENIES IN PART
Plaintiff’s motion, as described in its reasoning below. The Court will first consider Defendants’
objection to Plaintiff’s reliance on prior judgments making rulings on the reliability and
credibility of Rodriguez’s testimony, and then consider each of the portions of Rodriguez’s
testimony that Plaintiff requests to strike.
a. Previous Cases and Newspaper Article
Plaintiff argues the Court should rely on determinations in prior cases where Rodriguez’s
“qualifications and integrity have been questioned,” and attaches these rulings to his motion.30
26
See Dkt. Nos. 27-1 (order in Ibarra v. Harris County, No. 4:04-cv-186, Dkt. No. 245 (S.D. Tex. Mar. 2, 2005)) &
27-3 (order in Amin-Akbari v. The City of Austin, Texas, No. 1:13-cv-472-DAE (W.D. Tex. Jan. 7, 2015). Plaintiff
also attaches a news article discussing Rodriguez’s testimony as an expert in other cases in Texas. See Dkt. No. 272.
27
Dkt. No. 27 p. 4, 7.
28
Dkt. No. 28 p. 3.
29
Id. at pp. 8–13.0
30
Dkt. No. 27 p. 1; see Dkt. No. 27-1, Dkt. No. 27-3.
4 / 49
Plaintiff also attaches a newspaper article purporting to show Rodriguez’s “reputation and
improprieties” based on reporting relating to cases in which Rodriguez has testified.31
Defendants object to Plaintiff’s arguments relying on previous cases in which
Rodriguez’s testimony was stricken because “it serves no purpose in support of the arguments
[Plaintiff] makes” and instead, “is being used as an attempt to influence the Court . . . as to Mr.
Rodriguez’s truthfulness, credibility, and trustworthiness.”32 Defendants argue for similar
reasons that Plaintiff’s reliance on a newspaper article detailing Mr. Rodriguez’s history as a
witness is improper.33
Judicial findings in other cases are generally inadmissable hearsay.34 However, a trial
judge may consider hearsay evidence in assessing an expert’s reliability.35 After a witness has
been repeatedly rejected by courts it is appropriate to take judicial notice of this history of other
courts finding the witnessed lacked credibility.36 Additionally, a court may take judicial notice of
newspaper articles to demonstrate that certain facts were generally known within the court’s
jurisdiction, but not the truth of the facts reported in the newspaper article.37
Here, the cases and the newspaper article cited by Plaintiff do not establish a pattern of
courts finding Rodriguez lacking credibility. The cases share no factual or legal similarities,
either to each other or this case; the grounds upon which each judge made determinations as to
31
Id. at p. 2.
Dkt. No. 28 p. 3, ¶ 4.
33
Id. at p. 4, ¶ 6.
34
See Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris, Inc., 141 F. Supp. 2d 320, 323 (E.D.N.Y. 2001)
(citing McCormick on Evidence § 318, at p. 894 (3d ed. 1984)).
35
Fed. R. Evid. 104(a).
36
See Blue Cross & Blue Shield of N.J., 141 F. Supp. 2d at 324 (collecting cases).
37
See Fed. R. Evid. 201(b) (“A judicially noticed fact must be one not subject to reasonable dispute in that it is
either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.”); see also Associated Gen.
Contractors of Am. v. City of Columbus, 936 F. Supp. 1363, 1425 (S.D. Ohio 1996) (discussing when a court may
judicially notice facts reported in a newspaper article).
32
5 / 49
Rodriguez’s testimony are completely different, and none are at issue here.38 Therefore, these
orders do not establish a pattern of Rodriguez exhibiting improper behavior in court or being
found to lack credibility. The mere fact that two prior judges determined in the unique
circumstances in those cases to limit or strike Rodriguez’s testimony is insufficient to prohibit
Rodriguez from testifying in this case.
Additionally, the newspaper article also provides no support for finding any pattern of
Rodriguez lacking credibility. Indeed, the article is an opinion piece, and thus not a proper basis
for establishing any fact-pattern.39 The Court must take judicial notice only of the fact that a
newspaper article was published regarding Rodriguez in the Texas Observer in 2017, and thus
this article was known to the public, but the Court may not rely upon the content of the article for
the truth of those facts.40
Accordingly, the Court does not rely upon the two prior cases or the newspaper article in
reaching its determinations about the relevance or reliability of Rodriguez’s testimony. With this
basis the Court now turns to the substance of Plaintiff’s requests to strike Rodriguez’s testimony.
b. Psychology Testimony
Plaintiff argues that Rodriguez is not an expert in psychology and requests that the Court
strike paragraphs 66–70 and the last sentence of paragraph 106.41 Each of these includes opinion
testimony by Rodriguez about how memory is impacted by a traumatic incident and each is
based on Rodriguez’s training and certification by the Force Science Institute.42
38
Compare Dkt. No. 27-1 (basing a sanctions order on Rodriguez improperly communicating with witnesses), with
Dkt. No. 27-3 (limiting the scope of Rodriguez’s testimony in certain respects, each ruling carefully tailored to the
facts of that case and sharing no similarities to any issue raised by Plaintiff).
39
Dkt. No. 27-2.
40
See Fed. R. Evid. 201(b).
41
Dkt. No. 27 p. 5.
42
See Dkt. No. 24-14 pp. 25–26, ¶¶ 66–70, p. 41, ¶ 106.
6 / 49
Rodriguez attended and received a certification from the “Force Science Institute.”43
Defendants assert that the Force Science Institute “trains investigators on how to analyze officer
performance under stress, action/reaction time, memory, and decision making . . . during
dangerous encounters, including an officer involved shooting.”44 Defendants cite to
www.forcescience.org in support of this contention.45
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony
and reports.46 An expert witness may testify in the form of an opinion if the expert is qualified as
an expert by “knowledge, skill, experience, training, or education;” and (a) the expert’s
knowledge will help the trier of fact; (b) the testimony is based on sufficient facts; (c) the
testimony is the product of reliable principles and methods; and (d) the expert has reliably
applied the principles and methods to the facts of the case.47
The Supreme Court, in analyzing Rule 702, has indicated that the overarching concern is
whether the testimony is relevant and reliable.48 A district court has broad discretion in deciding
the admissibility of expert testimony.49 The burden is on the party offering the expert testimony
to demonstrate that the expert’s findings are reliable.50
To be reliable, expert testimony must “be grounded in the methods and procedures of
science and . . . be more than unsupported speculation or subjective belief.” 51 Further, courts
should refuse to allow an expert witness to testify if it finds that the witness is not qualified to
43
Id at p. 50.
Dkt. No. 28 p. 8,
45
Id.
46
Fed. R. Evid. 702.
47
Id.
48
See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993).
49
Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004)
50
Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998).
51
Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012) (internal citation omitted).
44
7 / 49
testify in a particular field or on a given subject.52 The party seeking to demonstrate that an
expert is reliable must demonstrate “objective, independent validation of the expert’s
methodology.”53
The Court concludes Defendants have not met their burden to demonstrate Rodriguez is a
qualified expert in psychology or that Rodriguez utilizes reliable methods. Defendants provide
no information about the Force Science Institute beyond the main website page, and provide no
information about Rodriguez’s specific certification. Nor do Defendants provide any “objective,
independent validation of the expert’s methodology” of the techniques relied upon by the Force
Science Institute in general or in the specific certification course completed by Rodriguez. 54
Accordingly, the Court GRANTS Plaintiff’s motion in relation to paragraphs 66–70 and the last
sentence of paragraph 106 and STRIKES this portion of Rodriguez’s testimony from the record.
c. Airbag Testimony
Plaintiff argues Rodriguez is not an expert in airbags and requests to strike the last three
sentences of paragraph 94 and the first two sentences of paragraph 95 from Rodriguez’s
testimony.55 In these statements Rodriguez provides opinions about impact of airbag deployment
and the length of time it takes for an airbag to deflate.56
Defendants indicate that Rodriguez is basing his opinion regarding airbags on his
experiences as a State Trooper and in-service trainings regarding collision investigation and
reconstruction that Rodriguez received.57 Rodriguez asserts he is qualified as a “Collision
52
Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999).
Moore, 151 F.3d at 276.
54
See id.
55
Dkt. No. 27 p. 6.
56
Dkt. No. 24-14 p. 36 ¶¶ 94–95.
57
Dkt. No. 28 p. 9, ¶ 15, Dkt. No. 28-2 p. 6, ¶ 8.
53
8 / 49
Investigation and Reconstruction” expert, and that through his “training, experience and
research” he has “become familiar with motor vehicle airbag deployments and deflations.”58
The Court finds these assertions do not meet Defendants’ burden to demonstrate that
Rodriguez is a qualified expert about airbags. Defendants do not include information about the
methods are utilized by Rodriguez as a Collision Investigation and Reconstruction expert or why
these methods are reliable. The Court concludes Defendants have not met their burden and thus
GRANTS Plaintiff’s motion and STRIKES the last three sentences of paragraph 94 and the first
two sentences of paragraph 95 of Rodriguez’s testimony from the record.
d. Legal Testimony
Plaintiff argues Rodriguez is not a legal expert and requests to strike paragraphs 30, 34,
35, 42, 43, 45, 46, 47, 61, 62, 63, 78, 79, 81, 86, 87, 89, 90, 98, 99, 101, 102, 103, 104, 109, 111,
122, and 123.59 Plaintiff argues that in each of these Rodriguez offers legal opinions.60 Defendant
responds that Rodriguez instead offers opinions about the trainings that “peace officers licensed
in the State of Texas and for law enforcement trainers.”61
In general, expert testimony is not allowed regarding the law, and experts may not “state
a legal conclusion.”62 An expert’s legal conclusion “both invades the court’s province and is
irrelevant.”63 Thus, pursuant to Federal Rule of Evidence 702, courts generally exclude expert
testimony stating legal conclusions.
After reviewing each paragraph Plaintiff requests to strike, the Court grants a portion of
Plaintiff’s requests. To the extent Rodriguez provides a legal determination evaluating the facts
58
Dkt. No. 28-2 p. 6, ¶ 8.
Dkt. No. 27 p. 6.
60
Id.
61
Dkt. No. 28 p. 10, ¶ 16.
62
Tex. Peace Officers Ass’n v. City of Dall., No. 94-10769, 1995 U.S. App. LEXIS 42798, at *2 (5th Cir. May 31,
1995).
63
Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983).
59
9 / 49
of this case under Supreme Court law, such testimony is inadmissible for summary judgment
purposes. Accordingly, the Court GRANTS Plaintiff’s motion in relation to paragraphs 78, 79,
87, 89, 90, 98, 101, 111, and 122; and to the extent that a legal opinion is given, STRIKES each
of these paragraphs from consideration in the summary judgment context.
However, upon review, many of the paragraphs are not legal analysis, but instead consist
of Rodriguez’s opinion about law enforcement trainings based on legal standards. Defendants
point to Rodriguez’s extensive experience providing trainings based on Supreme Court decisions
as required by the Texas Law Enforcement Commission as evidence of his qualification as an
expert in this area.64 Given that this case is based on the subjective understanding of law
enforcement officers regarding the appropriate use of force, Rodriguez’s testimony regarding
how law enforcement officers are trained about appropriate behavior in light of Supreme Court
cases is admissible. Thus, the Court DENIES Plaintiff’s motion in relation to paragraphs 30, 34,
35, 42, 43, 45, 46, 47, 61, 62, 63, 81, 86, 99, 102, 103, 104, 109, and 123.
e. Irrelevant Testimony
Plaintiff argues that Rodriguez draws “conclusions about the evidence that are not
specific to the training of law enforcement officers.”65 Plaintiff argues these are not relevant to a
trier of fact and requests to strike paragraphs 53; 62; 64 (last two sentences); 65 (last two
sentences); 71 (last two sentences); 74 (last two sentences); 75 (last sentence); and 82 (last
sentence).66
Defendants argue each of these pertain to how police officers are trained and thus would
be useful to a trier of fact. In assessing relevance, courts should consider whether the expert’s
64
See id.; Dkt. No. 28-2, p 5, ¶¶ 5–6
Dkt. No. 27 p. 7.
66
Id.
65
10 / 49
opinion will assist the trier of fact.67 Relevant testimony must “fit[]” the facts of the case and
thereby assist the trier of fact to understand the evidence.68
The Court agrees with Defendants that Rodriguez’s testimony in the sections highlighted
by Plaintiff are relevant. Each of the highlighted sections contains Rodriguez’s opinion about the
reasonability of the officers’ actions in light of their law enforcement training, and thus would
assist the trier of fact in determining the subjective reasonableness of the law enforcement
officers in choosing to utilizing force. Accordingly, the Court DENIES Plaintiff’s motion in
relation to paragraphs 53; 62; 64 (last two sentences); 65 (last two sentences); 71 (last two
sentences); 74 (last two sentences); 75 (last sentence); and 82 (last sentence).
Based the on the foregoing the Court DENIES IN PART AND GRANTS IN PART
Plaintiff’s motion to partially strike Rodriguez’s testimony in the manner already explained. The
Court now turns to Plaintiff’s motion for leave to file a sur-reply.
III.
MOTION FOR LEAVE TO FILE SUR-REPLY
Before turning to the motion for summary judgment, the Court first considers Plaintiff’s
motion to file a sur-reply.69 Although the motion is styled as “opposed” Defendants have not
responded. Thus, the motion is unopposed by under Local Rules.70 Plaintiff requests to file a surreply to respond to new evidence in Defendants’ response,71 and attaches a proposed sur-reply.72
The Court finds the sur-reply responds to Defendants’ response and the sur-reply will not
delay the proceeding.73 Given that Defendants are unopposed to Plaintiff’s motion, the Court
determines Plaintiff has provided cause to consider the sur-reply. Accordingly, the Court
67
See Peters v. Five Star Marine Serv., 898 F.2d 448, 449 (5th Cir. 1990) (citing Fed. R. Evid. 702 advisory
committee’s notes (1972)).
68
See Daubert, 509 U.S. at 591.
69
Dkt. No. 32.
70
See L. R. 7.4 of the United States District Court of the Southern District of Texas.
71
See Dkt. Nos. 31, 31-1, 31-2.
72
Dkt. No. 32-1.
73
See Dkt. No. 32.
11 / 49
GRANTS Plaintiff’s motion to file a sur-reply and will consider the substance of Plaintiff’s surreply in the Court’s analysis of Defendants’ motion for summary judgment.
IV.
SUMMARY JUDGMENT MOTION
a. Legal Standard
Under Rule 56, summary judgment is proper when there is “no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”74 In a motion for
summary judgment, the movant bears the initial burden of showing the absence of a genuine
issue of material fact.75 The burden then shifts to the non-movant to demonstrate the existence of
a genuine issue of material fact.76 “A fact is ‘material’ if its resolution could affect the outcome
of the action,”77 while a “genuine” dispute is present “only if a reasonable jury could return a
verdict for the non-movant.”78 As a result, “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.”79
In conducting its analysis, the Court considers evidence from the entire record and views
that evidence in the light most favorable to the non-movant.80 Rather than combing through the
record on its own, the Court looks to the motion for summary judgment and response to present
the evidence for consideration.81 Parties may cite to any part of the record, or bring evidence in
74
Fed. R. Civ. P. 56(a).
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
76
See id. at 323.
77
Burrell v. Dr. Pepper/Seven UP Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007) (internal quotation marks
and citation omitted).
78
Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006) (citation omitted).
79
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
80
See Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000) (citations omitted).
81
See Fed. R. Civ. P. 56(e).
75
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the motion and response.82 By either method, parties need not proffer evidence in a form
admissible at trial,83 but must proffer evidence substantively admissible at trial.84
b. Evidentiary Issues
Plaintiff and Defendants also raise other issues with the evidence relied upon by the
opposing party. Thus, before providing a full summary of the facts in the record, the Court
considers these issues.
i. Sandra Netherton Testimony
Defendants object to Plaintiff’s referring to the deposition testimony of a witness to the
incident, Sandra Netherton (“Netherton”), because Plaintiff did not submit Netherton’s
deposition into the record.85 However, Defendants attached Netherton’s deposition testimony to
their response, and thus submitted Netherton’s deposition in the record.86 While the Court would
never consider evidence not in the record, because Defendants have placed Ms. Netherton’s
testimony in the record, the Court will consider it.
ii. Texas Ranger Investigation
Plaintiff
complains
that
Texas
Department
of
Public
Safety
Investigation
(“Investigation”), submitted into evidence by Defendants, showed biased and was incomplete.87
Plaintiff disputes no factual assertion made by Defendants that relies on the Investigation, and
instead argues that different versions of the Investigation do not contain the same information.88
82
See Fed. R. Civ. P. 56(c).
See Celotex Corp., 477 U.S. at 324 (“We do not mean that the nonmoving party must produce evidence in a form
that would be admissible at trial in order to avoid summary judgment.”).
84
See Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (“[T]he evidence proffered by the plaintiff to satisfy
his burden of proof must be competent and admissible at trial.”).
85
See Dkt. No. 31.
86
See Dkt. No. 31-1
87
Dkt. No. 29 p. 5.
88
Id.
83
13 / 49
The Investigation was an independent assessment of the shooting completed by Texas
Ranger Robert Callaway (“Ranger Callaway”) shortly after the incident at the request of the
Mission Police Department.89 The Investigation was completed in the days following the
incident and included testimony and witness statements from police officers, bystanders, and
experts.90 After completion, the Investigation was submitted to the Hidalgo County District
Attorney’s Office in connection with the criminal investigation into the shooting.91
The Court finds Plaintiff’s complaints are immaterial to this motion. First, Plaintiff does
not indicate what relief, if any, he would like due to the alleged bias of the Investigation. Plaintiff
does not request the Investigation be excluded from the record. Indeed, Plaintiff cites extensively
to the deposition testimony of Ranger Callaway which relies on the results of the Investigation.92
Second, even assuming the truth of Plaintiff’s allegation that Ranger Callaway omitted some
information from the final version of the Investigation, this does not mean that any of the facts
included in Ranger Callaway’s report are incorrect. For the foregoing reasons, the Court
disregards Plaintiff’s arguments about the alleged bias of the Investigation.
iii. Plaintiff’s Unsupported Factual Assertions
Defendants argue that Plaintiff makes factual allegations and assertions in his response
that are unsupported by any evidence.93 Plaintiff responds that much of his response included
citations to the record.94
Any assertion or allegation unsupported by evidence cannot be used to establish a
genuine dispute of a material fact. Rule 56(c)(1) provides that the party asserting that a fact
89
See Dkt. No. 24-4 Robert Callaway Deposition (hereinafter “Callaway Deposition”) 9:10–20 39:1–3, 53:12–13,
68:16–18; see also Dkt. No. 25 (Investigation).
90
See Dkt. No. 25.
91
Dkt. No. 24 p. 9, ¶ 10.
92
See, e.g., Dkt. No. 29 pp. 8–9.
93
Dkt. No. 31 p. 2, ¶ 2.
94
See Dkt. No. 32-1.
14 / 49
cannot be or is genuinely disputed must support the assertion by citing to “particular parts of
materials” in the record or showing that the materials cited do not establish the absence or
presence of a genuine dispute.95 The burden imposed by Rule 56(c)(1) on the nonmoving party is
not heavy, however “the bare assertion that there are material facts in dispute is obviously not
sufficient to carry this burden.”96 Further, “Rule 56 does not impose upon the district court a duty
to sift through the record in search of evidence to support a party’s opposition to summary
judgment.”97
Upon review, although Plaintiff does cite to evidence in some portions of his response,
much of Plaintiff’s response contains factual allegations and assertions with no citation to the
record.98 To the extent that Plaintiff makes factual assertions or argues there are disputes
regarding the factual evidence without citing to evidence in support, the Court disregards these
assertions.99
iv. Plaintiff’s Misleading or Inaccurate Citations
Defendants also argue that Plaintiff’s response is replete with inaccurate or misleading
factual assertions that are not supported by the evidence.100 The Court again agrees. Plaintiff
makes numerous factual assertions that are misleading, inaccurate, or—on several occasions—
where the cited evidence actually states the opposite of Plaintiff’s contention. The Court now
turns to one such example: Plaintiff’s reference to the apparent testimony of Donna Lytle.101
95
Fed. R. Civ. P. 56(c)(1) (emphasis added).
United States v. Ledesma, 33 F. Supp. 3d 734, 742 (S.D. Tex. 2012)
97
Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998); see also Nissho-Iwai American Corp. v.
Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (it is not necessary “that the entire record in the case . . . be searched and
found bereft of a genuine issue of material fact before summary judgment may be properly entered”).
98
See, e.g., Dkt. No. 29 p. 4 (Plaintiff’s factual assertions contain no citation to the record).
99
Ragas, 136 F.3d at 458.
100
See e.g., Dkt. No. 31 p. 5.
101
See Dkt. No. 29 p. 6.
96
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1. Donna Lytle
Plaintiff argues testimony from Donna Lytle, a purported witness to portions of the
incident, disagrees with other witness testimony.102 Plaintiff does not submit into evidence any
testimony of Donna Lytle. Instead, Plaintiff cites to the deposition testimony of Ranger
Callaway, in which Ranger Callaway is asked to comment on a video clip of testimony from
Donna Lytle.103
The Court finds Donna Lytle’s testimony as cited by Plaintiff is inappropriate summary
judgment evidence. Plaintiff cited Ranger Callaway to support the truth of Donna Lytle’s version
of events.104 However, Ranger Callaway actually states that he is skeptical of the accuracy of
Donna Lytle’s testimony because it conflicts with video evidence.105 In sum, Plaintiff is citing to
deposition testimony in which the deposed individual disagrees with the statement of a third
party to support the truth of the assertion of the third party. Thus, Plaintiff’s citation to Ranger
Callaway’s deposition in support of Donna Lytle’s version of events is—at best—inaccurate,
and—at worst—could indicate a deliberate attempt to mislead the Court. Additionally, even if
the factual assertion were accurate, Ranger Callaway repeating a third-party statement is clearly
hearsay not within any exception, and, therefore, inadmissible.106 Accordingly, to the extent
Plaintiff cites to Donna Lytle’s version of events, the Court disregards these assertions.
2. Admonishment
As noted, Plaintiff’s response is replete with similarly misleading and inaccurate
citations. The Court declines to examine every one of these, except as noted later in this Opinion
102
Id.
See id. nn.26–27 (citing Dkt. No. 29-4 253:10–254:4). The Court notes Plaintiff incorrectly cites to “Exhibit D,
Cabrera Deposition,” but Plaintiff’s Exhibit D is, in actuality, the deposition of Officer Callaway.
104
See Dkt. No. 29 p. 2 nn.12–13
105
See Dkt. No. 29-4 254:6–256:7.
106
Fed. R. Evid. 801(c), 802, 803.
103
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to address necessary arguments. However, the Court admonishes to Plaintiff remember the
requirement to only make factual allegations that Plaintiff reasonably believes are supported by
evidence.107 The Court now turns to the factual backgrounds as established by the evidence in the
record.
b. Factual Background
i. Initial Encounter
On February 22, 2016, Mission Police Department officers responded to a domestic
disturbance in a small retirement community named “Wagon City South,” located in Mission,
Texas, where Plaintiff lived with his son, Decedent.108 Decedent had a long history of mental
illness, suffering from bipolar disorder and schizophrenia.109 On that day, Plaintiff called 911 to
report that he had been assaulted at his home by Decedent. 110 Plaintiff told the 911 operator that
Decedent had threatened to kill Plaintiff with an ax, and was outside Plaintiff’s house hitting
Plaintiff’s truck and motorcycle with the ax.111 Plaintiff also informed the 911 operator that
Decedent was schizophrenic and was off his medication.112
Cabrera was on patrol and Dispatch informed Cabrera there was a schizophrenic male
subject, off his medication and armed with an ax, who had assaulted his elderly father.113 Cabrera
headed towards the address provided.114 Before Cabrera arrived, Dispatch informed him
107
Fed. R. Civ. P. 11(b)(3).
Dkt. No. 24-3 Javier Lara Deposition (hereinafter “Lara Deposition”) 7:16–18.
109
Dkt. No. 29 Plaintiff Deposition 20:23–24, 35:14–15.
110
Dkt. 24-1 Audio Recording of 911 Call made by Plaintiff on February 22, 2016 (hereinafter “Plaintiff 911 Call”)
time stamp 00.00–00.15; Dkt. No. 24-5 Plaintiff Dep. 56:1–58:7.
111
Dkt. 24-1 Plaintiff 911 Call time stamp 00.15–1:40; see also Dkt. No. 24-5 Plaintiff Dep. 58:8–22.
112
Dkt. 24-1 Plaintiff 911 Call time stamp 00.15–1:40. Plaintiff later testified Decedent had been off his medication
for several days before the incident. Dkt. No. 24-5 Plaintiff Dep. 54:2–17.
113
Dkt. No. 24-2 Dispatch Audio of February 22, 2016 time stamp 00.00–00.54
114
Dkt. No. 24-6 Interview of Jorge Cabrera on February 24, 2016 (hereinafter “Cabrera Interview”) 8:17–23.
108
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Decedent had put down the ax and picked up a machete.115 Cabrera arrived at the home by
himself.116
Cabrera exited his vehicle, unholstered his weapon and started walking towards
Decedent.117 Cabrera testified he saw Decedent with a machete in his right hand and gave
Decedent verbal commands to stop, put his hands up, and drop his weapon,118 and told Decedent,
“Please put it [the machete] down. I don’t want to shoot you.”119 Cabrera testified Decedent “just
threw it [the machete] to the floor and ran towards his truck . . . I think it was an F-250.”120
As Decedent got into the truck, Cabrera called Dispatch, saying “this guy’s about to take
off.”121 Decedent entered the truck and Cabrera commanded Decedent to “get out” multiple
times.122 Cabrera testified that Decedent did not comply and instead drove the truck towards
Cabrera.123 Footage from Cabrera’s ‘dash cam’ shows Cabrera running backwards as a red truck
drives directly at Cabrera.124
Cabrera testified he “thought [Decedent] was going to run over me.” 125 Cabrera fired a
single shot at Decedent.126 Cabrera fell to the ground, narrowly missed—or perhaps side-
115
Dkt. No. 24-2 Dispatch Audio of February 22, 2016 time stamp 02.15–02.54; Dkt. No. 24-6 Cabrera Interview
9:5–8; Dkt. No. 25 p. 19, ¶ 7.3; see also Dkt. No. 24-7 Video Record of Police Unit 272 Dash Cam Footage of
Officer Jorge Cabrera (hereinafter “Cabrera Dash Cam”) time stamp 13:44:10–13:44:42.
116
Dkt. No. 25 p. 19, ¶ 7.3; Dkt. No. 24-6 Cabrera Interview 8:18–9:18.
117
Dkt. No. 24-6 Cabrera Interview 9:20–10:14.
118
Id. 14:5–18; see also Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:44:40–13:44:52 (Officer Cabrera can be
heard, off camera, saying “hands up” several times).
119
Dkt. No. 24-6 Cabrera Interview 10:22–23; see also Dkt. No. 29-2 Jorge Cabrera Deposition (hereinafter
“Cabrera Deposition”) 31:15–17.
120
Dkt. No. 24-6 Cabrera Interview 10:24–11:1.
121
Dkt. No. 24-6 Cabrera Interview 11:9–13; see also Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:45:08–
13:45:16 (Officer Cabrera can be heard, again off camera, relaying what is presumably the license plate of the
truck).
122
Dkt. No. 24-6 Cabrera Interview 12:1–6.
123
Id. 12:4–14; Dkt. No. 24-1 Plaintiff 911 Call time stamp 4:35–4:55.
124
Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:45:13–13:45:17.
125
Dkt. No. 24-6 Cabrera Interview 16:2–3.
126
Id. 12:1–15; Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:45:13–13:45:16 (a single shot is clearly audible).
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swiped—by the truck.127 Cabrera quickly got to his feet and fired three more shots at the truck
before the truck drove off.128 Cabrera returned to his vehicle, informed Dispatch, “shots fired”
and began pursuit of Decedent.129 Throughout the pursuit Cabrera was the police unit directly
behind Decedent.130
ii. Vehicle Pursuit
Other Mission Police Department officers began to arrive at Wagon City South, including
Defendant Lara.131 At this time Dispatch relayed, “shots fired” and “officer down.” 132 Lara
testified that when he heard “shots fired” and “officer down” he believed Cabrera had been
killed.133 Lara entered Wagon City South and followed a police unit in pursuit of Decedent. 134
This unit was driven by Cabrera, although Lara testified he did not know this at the time.135
Shortly after entering Wagon City South, Lara turned down a small street, encountering
Decedent driving towards Lara’s vehicle head-on.136 Decedent crashed into the front right
quadrant of Lara’s vehicle.137 Lara testified he thought Decedent intentionally hit his vehicle.138
127
Cabrera later testified that he felt pain later in the afternoon, but was uncertain if he was actually struck by the
truck. See Dkt. No. 29-3 Cabrera Dep. 38:12–14.
128
Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:45:16–13:45:26; Dkt. No. 29-3 Cabrera Dep. 39:9–40:18.
During this encounter Plaintiff had remained on the phone with 911 and continued to communicate what he
observed transpire between Cabrera and Decedent; Plaintiff told the 911 operator that Decedent had hit Cabrera with
the truck and that there was an “officer down” and “shots fired.” Dkt. No. 24-1 Plaintiff 911 Call time stamp 4:35–
4:55.
129
Dkt. No. 24-6 Cabrera Interview 18:14–17; Dkt. No. 24-8 Cabrera Dep. 41:15–23.
130
Dkt. No. 29-3 Cabrera Dep. 83:6–10; see also Cabrera Dash Cam time stamp 13:45:26–13:50:00.
131
Dkt. No. 29-3 Lara Dep. 12:23–13:2; Dkt. No. 24-9 S Sean De La Rosa Deposition (hereinafter “De La Rosa
Deposition”)
132
Dkt. No. 24-2 Dispatch Audio of February 22, 2016 time stamp 6:18–6:30; Dkt. No. 24-3 Lara Dep. 12:23–13:2;
Dkt. No. 24-9 De La Rosa Dep. 6:22–7:3, 24:20.
133
Dkt. No. 24-3 Lara Dep. 13:6–9, 14:16–19.
134
Id. 25:6–9; see also Dkt. No. 24-7 Video Record of Police Unit 281 Dash Cam Footage of Officer Javier Lara
(hereinafter “Lara Dash Cam”) time stamp 13:45:22–13:46:02.
135
See Dkt. No. 24-3 Lara Dep. 32:3–6.
136
Dkt. No. 24-7 Lara Dash Cam time stamp 13:46:36–40; see also Dkt. No. 24-3 Lara Dep. 25:10–13.
137
Lara’s dash cam shows the red truck driving directly at Lara’s vehicle, before swerving to the right and crashing
into Lara’s vehicle on the right front quadrant. Dkt. No. 24-7 Lara Dash Cam time stamp 13:46:38–42; Dkt. No. 298; Dkt. No. 29-9. see also Dkt. No. 24-3 Lara Dep. 25:14–20.
138
Dkt. No. 24-3 Lara Dep. 25:12–26:16.
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Lara also testified he believed his unit was disabled by the impact.139 Lara exited his vehicle and
drew his handgun, but did not fire as Decedent drove past.140
Lara then retrieved his rifle from his vehicle and waited for Decedent to return to this
area of Wagon City South.141 Wagon City South has only one entry and exit, and the road where
Lara positioned himself is near that entry point.142 Lara testified he ordered bystanders in the area
to “get out of harm’s way.”143
Meanwhile, Decedent’s vehicle was not impaired by the impact; Cabrera, De La Rosa,
and other police units continued the pursuit in a high-speed chase through the streets of Wagon
City South.144 De La Rosa was the vehicle behind Cabrera and was calling out locations and
directions during the pursuit.145 Cabrera testified he believed Decedent was going “above sixty”
miles per hour.146 During the pursuit, Decedent nearly struck an individual in the roadway.147
Lara testified he heard over the radio that Decedent had nearly hit a pedestrian.148
iii. The Crash and Rifle Shot
After a high-speed pursuit through the streets of Wagon City South, Decedent returned to
where Lara had positioned himself in the road.149 Lara yelled out commands for the truck to stop
139
Id. 27:8–10.
Id. 31:5–8, 40:16–18; see also Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:46:48–13:46:55.
141
Dkt. No. 24-3 Lara Dep. 40:22–41:3.
142
See Dkt. No. 24-7 Lara Dash Cam; Dkt. No. 24-10 Gary Rinehart Dep. 10:8–15, 18:15–19, Dkt. No. 29-1 Lara
Dep. 22:23–25.
143
Dkt. No. 24-3 Lara Dep. 46:1–4.
144
Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:46:40–13:49:05, Video Record of Police Unit 281 Dash Cam
Footage of Officer Sean De La Rosa (hereinafter “De La Rosa Dash Cam”) time stamp 13:46:13–13:19:17.
145
See Dkt. No. 29-5 De La Rosa Dep. 30:6–9, 100:14–17; see also Dkt. No. 24-7 De La Rosa Dash Cam time
stamp 13:46:22–13:49:56.
146
Dkt. No. 24-6 Cabrera Interview 37:11–15; see Dkt. No. 24-7 Cabrera Dash Cam (the dash cam record shows
Cabrera going in excess of fifty-five miles per hour and Decedent is well ahead of Cabrera throughout the pursuit).
147
Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:48:15–13:48–22; Dkt. No. 24-6 Cabrera Interview 23:15–20;
Dkt. No. 24-8 Cabrera Dep. 70:17–25.
148
Dkt. No. 24-3 Lara Dep. 54:11–15.
149
Id. 51:23–52:1; Dkt. No. 24-7 Lara Dash Cam time stamp 13:48:58–13:49:01; see also Dkt. No. 24-7 Cabrera
Dash Cam time stamp 13:48:55–13:49:07.
140
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as it approached his position in the road.150 Lara testified, “the truck stopped, revved his engine,
moved forward, stopped again, revved its engine a second time, then moved forward again.”151
The record clearly reflects that two events happened next, but the exact sequence of
events is unclear: (1) Lara fired a single shot from his rifle that went through the windshield of
the truck;152 and (2) the truck crashed into a tree in a yard between two neighboring trailer homes
and came to a stop.153
From the record it is unclear the length of time between Lara’s shot and the crash. Lara
initially testified he shot prior to the crash,154 but after reviewing the video evidence, Lara later
conceded that the sound of his gun shot occurred “after [Decedent] hit the tree.” 155 In dash cam
videos a shot can be heard, either simultaneous to the truck striking the tree or in the moment
before or after.156
It is also unclear exactly where Lara was standing when he fired the rifle. Lara initially
testified he was standing in the road when he fired the rifle shot,157 but later in his deposition,
after reviewing Cabrera’s dash cam video, agreed that it appeared he was standing “by the tree”
and not “in the street.”158 The footage from Cabrera’s dash cam shows the truck strike the tree,
but Lara’s exact location is unclear because he is obscured by a white truck parked in the
150
See Dkt. No. 24-3 Lara Dep. 51:23–54:18.
Id. 56:21–25; see also Dkt. No. 24-7 Lara Dash Cam time stamp 13:48:57–13:49:05 (Lara’s dash cam video
corroborates this testimony and shows the truck abruptly halting, and then driving forward, out of sight of the
video); see also Cabrera Dash Cam time stamp 13:48:58–13:49:02.
152
Dkt. No. 24-3 Lara Dep. 51:23–53:17.
153
Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:48:58–13:49:02; see also Lara Dash Cam time stamp 13:49:01–
13:49:07.
154
See Dkt. No. 24-3 Lara Dep. 53:9–13.
155
Id. 94:9.
156
Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:02–13:49:07, Lara Dash Cam time stamp 13:49:04–13:49:09.
157
Dkt. No. 29-1 Lara Dep. 56:6–10.
158
Id. 93:7–10.
151
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street.159 Regardless of the timing of the shot and Lara’s location, Plaintiff’s expert consultant
testified the rifle round did not strike Decedent.160
iv. Shots After Crash
After the crash, events happened very quickly. As the truck crashed, there were numerous
members of the Wagon City South in the area, including Shirley Netherton standing in her front
yard as the truck crashed.161 The front of the truck was damaged from the crash and the horn was
blaring.162
Lara, De La Rosa, Cabrera, and other officers approached the truck with their weapons
out,163 and about ten seconds after the crash there was a series of gun shots, which lasted
approximately thirteen seconds164 Following the shooting, there was a brief interval.165 Then the
truck rolled slowly backwards, away from the tree and into the side of Netherton’s trailer
home.166 Almost instantaneous with the truck rolling backwards, there was a final shot.167
According to dash cam footage, the entire incident—from the crash to the final shot—took
approximately fifty seconds.168 Decedent was removed from the truck, unresponsive, and was
pronounced dead.169
The record includes testimony, photographs, and videos showing multiple angles and
viewpoints of these concurrent events. In the interest of clarity, the Court now separately
159
Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:04–13:49:07.
Dkt. No. 24-9 Jeffrey J. Noble Deposition (hereinafter “Noble Deposition”) 118:2–5.
161
Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:02 (shows Netherton moving out of the way of truck); see
also Dkt. No. 24-3 Lara Dep. 46:23–25, 49:2–15.
162
see Dkt. No. 29-6 (photograph of truck after the crash showing damage to the front); Dkt. No. 29-7 (same); Dkt.
No. 24-7 Cabrera Dash Cam time stamp 13:48:55–13:50:07.
163
Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:05–13:50:00; Lara Dash Cam time stamp 13:49:07–13:50:02.
164
See Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:13–13:49:26.
165
Id. time stamp 13:49:27–13:49:54.
166
Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:54–13:49:59 (truck rolls away slowly from the tree); Dkt.
No. 31-1 Netherton Dep. 33:22–25.
167
Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:59–13:50:01 (final shot heard very shortly after truck rolls
away from the tree).
168
Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:05–13:50:00; Lara Dash Cam time stamp 13:49:07–13:50:02.
169
Dkt. No. 24-9 De La Rosa Dep. 207:21–22.
160
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explains the actions of Lara, De La Rosa, and Decedent in these moments as established by the
evidence.
1. Lara’s Actions
Immediately after the crash but before shots other than the rifle shot were fired, Lara
advanced on the truck, and as Lara approached, his rifle jammed, and he switched to his
handgun.170 Lara testified he saw “heavy damage” to the front of the truck. 171 As Lara
approached he gave Decedent multiple commands to “get out of the vehicle.”172
Although Lara did not observe Decedent with any weapons, Lara testified he saw
Decedent moving inside the truck, ignoring all commands, and revving the engine. 173 In
particular, Lara testified he saw Decedent attempting to place the truck into reverse. 174 Lara
testified, “[a]t that time when [Decedent] hit the tree, he was trying to dislodge the truck from the
tree by putting it in reverse and trying to dislodge it.”175
As Lara neared the passenger side window, Lara fired at Decedent a total of four times
with his handgun.176 On Lara’s and Cabrera’s dash cam videos, the first shot from the handgun
can be heard about ten seconds after the truck crashed into the tree,177 and the shots occurred at
170
Dkt. No. 24-3 Lara Dep. 60:15–19; Dkt. No. 29-3 Cabrera Dep. 106:4–107:16.
Dkt. No. 29-1 Lara Dep. 63:11.
172
Dkt. No. 24-7 Video Record of Police Unit 267 Dash Cam Footage time stamp 13:49:00–13:50:34; Dkt. No. 24-3
Lara Dep. 74:14–18; Dkt. No. 24-6 Cabrera Interview 25:5–6; Dkt. No. 24-10 Gary Rinehart Deposition 20:22,
22:1.
173
Dkt. No. 24-3 Lara Dep. 62:11, 74:14–75:2, 79:16–84:3; see also Dkt. No. 29-3 Cabrera Dep. 121:16–19
(testifying Decedent had no other visible weapons besides the truck); Dkt. No. 24-10 Rinehart Dep. 20:22–23
(testifying Decedent “at no time” gave “any kind of indication of submission” in response to Lara’s commands).
174
See Dkt. No. 24-3 Lara Dep. 62:11, 74:14–75:2, 79:16–84.
175
Id. 61:16–19.
176
Id. 80:1–3. Although the parties do not dispute the number of shots fired by Lara, the Court notes it is unclear
from the audio in the dash cam videos the exact number of shots fired and by whom. See Dkt. No. 24-7 Cabrera
Dash Cam time stamp 13:48:55–13:49:33. Cabrera and Lara both testified they fired shots during this time period,
however, Cabrera testified he did not shoot at Decedent. See Dkt. No. 24-8 Cabrera Dep. 108:2–3. The parties do not
dispute that only shots fired by Lara struck and injured Decedent and that Decedent was struck by four shots.
177
See Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:03–13:49:13, Lara Dash Cam time stamp 13:49:07–
13:49:16.
171
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intervals for approximately thirteen seconds.178 Lara testified he stopped to reassess the situation
after each shot.179 Lara described the shooting as follows:
[W]hen I fired the first round, the glass [of the passenger side window] shattered.
When I fired the second round, [Decedent] reacted to the rounds—to the rounds
hitting him. He was still trying to dislodge the truck. The third round he was still
trying to dislodge the truck. He was still messing with the gears; just showing that
he was still trying to get away. And the fourth round hit him in the neck, so that’s
what made him stop.180
Lara testified he “kept on shooting until [Decedent] stopped messing with the truck. During the
whole course of my actions, he kept trying to dislodge the truck from the—from the tree.”181
2. De La Rosa’s Actions
Concurrent to Lara’s actions, De La Rosa approached the truck after it hit the tree and
saw an elderly woman, Netherton, in the yard near the truck.182 De La Rose testified his first
action was to “yell[] commands at [Netherton] to move out of the way. 183 Once De La Rose
believed Netherton was “out of the way,” the initial shots were over and De La Rosa moved to
the driver’s side of the truck to check on Decedent.184 De La Rosa testified that by this time
Decedent “wasn’t responsive,” even though the truck was still “revving and moving.”185
De La Rosa then used a “glass puncturing device” to strike the window of the truck and
hit it “several” times.186 After De La Rosa struck the window, the truck rolled backwards until it
collided with the edge of Netherton’s trailer home a few feet behind where the truck had
178
Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:03–13:49:26, Lara Dash Cam time stamp 13:49:16—
13:49:29. Additionally, the Court notes that this series of shots also included shots fired by Cabrera, although
Cabrera testified that he did not shoot at Decedent. See Dkt. No. 24-8 Cabrera Dep. 108:2–3.
179
Dkt. No. 24-3 Lara Dep. 80:1–6; see also Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:48:55–13:50:07.
180
Dkt. No. 24-3 Lara Dep. 80:19–81:1.
181
Id. 80:1–13.
182
Dkt. No. 24-9 De La Rosa Dep. 165:23–166:1; Dkt. No. 31-1 Netherton Dep. 10:1–3; see also Dkt. No. 24-7
Cabrera Dash Cam time stamp 13:48:55–13:49:03 (Netherton can be seen near the tree as the truck strikes it).
183
Dkt. No. 24-9 De La Rosa Dep. 141:2; Dkt. No. 31-1 Netherton Dep. 10:6–7.
184
Dkt. No. 24-9 De La Rosa Dep. 173:8–13.
185
Id. 175:6–20.
186
Id. 176:13–180:5; Dkt. No. 31-1 Netherton Dep. 10:10–11.
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crashed.187 After the truck started rolling backwards, De La Rosa testified he “shot through the
window into the dashboard” so he “could open the door.”188 De La Rosa testified he did not
shoot at Decedent,189 and expert analysis indicates this round did not strike Decedent. 190 De La
Rosa then opened the driver side door and removed Decedent, who was unresponsive, from the
vehicle.191
3. Decedent’s Actions
Several witnesses testified regarding Decedent’s actions immediately after the crash and
the shooting. Given that Decedent’s actions are key to determining whether Defendants may
have been justified in the use of force, the Court will consider this witness testimony in detail.
Gary Rinehart (“Rinehart”) was in the community clubhouse across the street during the
shooting, and testified he had a clear view of the truck and Decedent during the entire incident
from inside the clubhouse.192 Rinehart testified that shortly after the crash, he heard officers give
Decedent commands, and in response Decedent moved in a manner consistent with putting the
truck in reverse, and after a delay of a second or two seconds, Rinehart heard a shot. 193 Rinehart
believed this shot was fired from a “pistol.”194 Rinehart testified that Decedent was still moving
and non-compliant after the first shot,195 and that he observed Decedent attempting to “put[] the
187
Dkt. No. 24-9 De La Rosa Dep. 180:4–184:12; see also Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:54–
13:49:59 (the truck slowly rolling backwards way from the tree).
188
Dkt. No. 24-9 De La Rosa Dep. 187:9–10; Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:55–13:50:00 (a
single gunshot can be heard almost immediately after the truck rolls backward).
189
Dkt. No. 24-9 De La Rosa Dep. 187:12–13.
190
Dkt. No. 24-15 Noble Dep. 142:14–17, 149:6–9.
191
Dkt. No. 24-9 De La Rosa Dep. 197:17–207:23; see also Dkt. No. 31-1 Netherton Dep. 10:10–13.
192
Dkt. No. 24-10 Gary Rinehart Deposition (hereinafter “Rinehart Deposition”) 14:5–20, 26:9, 33:17.
193
Id. 56:20–58:14, 63:15–64:6.
194
Id. 61:12–15.
195
Id. 23:10–14, 26:2–4, 56:19–20.
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car into reverse and attempting to flee.”196 Further Rinehart testified “at no time did [Decedent]
give any kind of indication of submission.”197
Both officers provide similar testimony. Cabrera testified he could see Decedent inside
the truck throughout the shooting.198 Cabrera testified he and Lara gave Decedent commands to
“stop” and “get out” and that Decedent was “still trying to put [the truck] in reverse” despite the
commands.199 Lara testified he approached the truck from the passenger side and that he could
see Decedent in the vehicle.200 Lara testified Decedent “was trying to dislodge the truck from the
tree by putting it in reverse.”201 Lara testified that Decedent continued these actions despite
Lara’s commands for Decedent to stop, and that Decedent continued moving and attempting to
reverse the truck until Decedent was incapacitated by Lara’s final shot.202
Netherton, the elderly woman in the yard as Decedent crashed, testified regarding her
view of the crash and shooting. However, it is unclear from the record where Netherton was
positioned during the incident, how much of the incident she viewed, and whether she was able
to witness Decedent’s actions inside the truck.
Netherton was in her front yard at the moment the truck crashed into the tree,203 but, at
some point after the truck crashed, went into her house and then came back outside. 204
Netherton’s testimony of her movements during the incident is as follows:
I was standing in my front yard, and a truck came through my front yard and hit
my neighbor’s tree . . . And then these policemen were shooting at this man, and I
196
Id. 58:14.
Id. 20:22–23.
198
See Dkt. No. 24-8 Cabrera Dep. 101:2–106:2, 120:7–12.
199
Dkt. No. 24-6 Cabrera Interview 25:1–13; see also Dkt. No. 24-8 Cabrera Dep. 121:11, 128:18–20.
200
Dkt. No. 24-3 Lara Dep. 59:23–60:2.
201
Id. 61:16–19.
202
Id. 80:14–81:1.
203
See Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:02 (showing Netherton moving out of the way of truck);
Dkt. No. 24-9 De La Rosa Dep. 166:24–167:1 (testifying he saw Netherton in the “hot zone” of the incident).
204
Dkt. No. 31-1 Netherton Dep.10:5–9, 39:21–40:9; see also Dkt. No. 24-9 De La Rosa Dep. 140:2–141:9, 166:4–
5, 167:2–7.
197
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went out. And anyways, [the police officers] told me to go in the house. I went in
the house, and I went out the back door to see what they were doing to him and
they were shooting . . . And then this—this one policeman came around and broke
the window and shot him.205
A photograph taken at some point during the shooting206 shows Netherton on her back porch,
about thirty feet behind the truck according to Netherton’s estimate.207 The record is unclear how
long Netherton remained at each position.
Netherton testified she saw Decedent’s movements in the truck after the crash, but her
testimony does not indicate when she saw these actions or where she was standing. Netherton’s
deposition testimony contains the following exchange regarding Decedent’s actions in the truck:
Q: After the truck hit the tree, could you—could you see whether the driver was doing
anything inside the truck?
Netherton: Wasn’t doing anything.
Q: Was just sitting there?
Netherton: Uh-huh. I think he was already gone . . . That’s what I think.
Q: Okay So you saw . . . the truck hit the tree, and you could see that the driver
wasn’t doing anything?
Netherton: No.
Q: But the police officers continued to shoot at him?
Netherton: Yes . . . Because he slowly—he slowly went back into my house. He
didn’t drive back there or anything. It just, like, crept back and hit my house. I
think he was already gone.208
Although nothing in Netherton’s deposition testimony indicates which portion of the incident
this is in reference to or from what vantage point Netherton viewed Decedent’s actions, the truck
rolling backwards occurred near the end of the incident, after Lara had stopped shooting.209
Regardless of where and when Netherton viewed Decedent’s actions, Netherton’s
testimony contains conflicting information regarding whether she was able to see Decedent’s
actions while he was inside the truck. At the beginning of her deposition Netherton affirmatively
205
Dkt. No. 31-1 Netherton Dep. 10:1–11.
It is unclear from the record exactly when the photograph was taken. See infra Part IV.Section vi.2 n.249.
207
See Dkt. No. 31-2 (photograph); Dkt No. 31-1 Netherton Dep. 40:9–10.
208
Dkt. No. 31-1 Netherton Dep.16:1–20.
209
Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:54–13:49:59.
206
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responded to a question asking if she could “see whether the driver was doing anything inside the
truck.”210 However, later Netherton stated, “I didn’t see inside the truck.”211 Additionally,
Netherton conceded she could not view Decedent’s actions inside the truck while she was on the
porch.212 Finally, Netherton’s deposition testimony included the following exchange:
Q: Okay. Ms. Netherton, you testified earlier already that it was clear from your
vantage point at some point in time during the incident you couldn’t see exactly
what the driver was doing inside the vehicle.
Netherton: No, I couldn’t.
Q. Okay. All right. So, it is possible—even though you said in some of your
statements that [Decedent] wasn’t doing anything, it’s possible that he was. You
just couldn’t see. . . .
Netherton: What could he do? . . .
Q: My question is you didn’t see everything from your vantage point.
Netherton: Not what’s [] inside the truck.213
Thus, it is unclear whether Netherton was able—at any time—to see inside the truck.
v. After the Shooting
Dr. Norma Jean Farley, M.D., performed the autopsy on Decedent. 214 The autopsy
reported that Decedent sustained four gunshot wounds and that he died of gunshot wounds to his
neck and torso.215 The autopsy also revealed that Decedent tested positive for cannabinoids and
fentanyl/metabolites.216
The Mission Police Department Office of Professional Responsibility conducted an
administrative review of the incident and found Cabrera, De La Rosa, and Lara “did not violate
any rules and policies from the City of Mission or the Mission Police Department.” 217 The
Mission Police Department also brought in Ranger Callaway to conduct an outside investigation,
210
Dkt. No. 31-1 Netherton Dep. 16:1–4.
Id. 35:3.
212
Dkt. No. 31-1 Netherton Dep. 41:17–19.
213
Id. 46:9–47:1.
214
See Dkt. No. 24-11 (Autopsy Report).
215
Id.
216
Id.
217
Dkt. No. 24-12 p. 10.
211
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and Ranger Callaway submitted the Investigation to the Hidalgo County District Attorney’s
Office.218 On March 7, 2017, the Grand Jury for the 139th Judicial District Court returned a No
Bill for the offense of Manslaughter as to Cabrera, De La Rosa, and Lara.219
vi. Factual Disputes
Plaintiff contends that several issues constitute factual disputes. The Court will briefly
consider Plaintiff’s contentions before turning to its legal analysis.
1. Initial Rifle Shot
Plaintiff argues there is a dispute of fact regarding whether the initial rifle round shot by
Lara struck Decedent. Plaintiff states, “[a]lthough [Officer Callaway] testified that he did not
believe this first shot through the windshield, hit [Decedent], he was not sure because it is next to
impossible to recreate bullet trajectories for vehicles.”220 In support of this assertion Plaintiff
cites testimony by Ranger Callaway.221 The Court finds Plaintiff’s factual assertion is not
supported by the cited evidence.
At no point did Ranger Callaway indicate he was ‘unsure’ of his conclusion that the rifle
bullet did not hit Decedent. Instead, Ranger Callaway testified he believed the rifle shot through
the windshield did not hit Decedent.222 The portion of the deposition cited by Plaintiff concerns
another analysis technique involving “trajectory rods,” which can determine the trajectory of a
shot.223 In discussing the trajectory rod analysis of this shooting, Ranger Callaway indicated that
because the officers and the vehicle were moving, it would be “very difficult to get an accurate
representation of where the shot originated.”224 Even given this limited analysis, Ranger
218
See Dkt. No. 24-4 Robert Callaway Deposition 9:10–20; 39:1–3, 53:12–13, 68:16–18; see also Dkt. No. 25.
See Dkt. No. 24-13.
220
Dkt. No. 29 pp. 8–9 (citing Dkt. No. 29-4 134:23–25, 140:10–141:13) (quotations omitted).
221
Id. at p. 8 (citing Dkt. No. 29-4 Callaway Dep. 182:4–14).
222
Dkt. No. 29-4 Callaway Dep. 134:23-25.
223
See id. 136:18–137:22.
224
Id. 137:12–13.
219
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Callaway did not “believe it [the rifle bullet] struck Decedent,” and instead “believe[d] it lodged
itself in the back corner of the vehicle.”225 However, Ranger Callaway could not “confirm” this
analysis because “everything move[d].”226
Being unable to definitely confirm a conclusion through a specific test does not equate to
a lack of confidence in the conclusion. The testimony cited by Plaintiff does not support that
Ranger Callaway was “not sure,” and instead shows Ranger Callaway maintaining his
conclusion that the rifle bullet did not strike Decedent. Plaintiff’s own expert consult agrees with
Ranger Callaway’s analysis that the rifle shot did not strike Decedent.227 Thus, the Court
concludes the evidence indicates the rifle shot through the windshield did not strike Decedent.
2. Netherton Testimony
Plaintiff argues Netherton “witnessed the entire incident”228 and “testified that [Decedent]
did not do anything inside the truck as Lara began shooting.”229 On this basis, Plaintiff asserts
there is a factual dispute between Netherton’s version of Decedent’s actions and the witness
testimony of Cabrera, Lara, and Rinehart.230 The Court determines that the evidence does not
support Plaintiff’s characterization of Netherton’s testimony, and that Netherton’s testimony
does not contradict the testimony of Cabrera, Lara, and Rinehart.
In a summary judgment motion, “the court must draw all reasonable inferences in favor
of the nonmoving party, and it may not make credibility determinations or weigh the
evidence.”231 However, the court should also consider “evidence supporting the moving party
that is uncontradicted and unimpeached, at least to the extent that that evidence comes from
225
Id. 140:7–9.
Dkt. No. 29-4 Callaway Dep. 140:19–20.
227
Dkt. No. 24-9 Noble Dep.118:2–5.
228
Dkt. No. 29 p. 6.
229
Id. at p. 9.
230
Id. at pp. 16–17.
231
Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000).
226
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disinterested witnesses.”232 Additionally, the nonmoving party “cannot defeat summary
judgment with conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of
evidence.’”233 Merely because evidence in the record “does not contradict an offered theory does
not mean that the theory can also be reasonably inferred from it.” 234 Finally, because this motion
for summary judgment concerns qualified immunity, the evidentiary burden is on Plaintiff to
show Defendants are not entitled to qualified immunity.235
Here, drawing all reasonable inferences in favor of Plaintiff, the Court finds Netherton
was not in a position to “witness the entire incident” as asserted by Plaintiff. Netherton testified
she went in the house and then came back outside and viewed a portion of the incident while
standing on her back porch,236 and conceded she could not see Decedent’s actions in the truck
while she was on the porch.237 Thus, even according to her own testimony, Netherton could not
have witnessed the “entire incident.”
Similarly, the record does not support Plaintiff’s assertion that Netherton testified
“[Decedent] did not do anything inside the truck as Lara began shooting.” Although, Plaintiff
does not specify which “shooting” he is referring to, the Court assumes Plaintiff is indicating
Lara’s handgun shots.238 As the Court has already explained, Netherton’s testimony does not
clearly indicate when she was under the tree, when she was on her porch or what she saw while
232
Id. (quotation omitted).
Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 343 (5th Cir. 2007) (quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
234
Hathaway v. Bazany, 507 F.3d 312, 322 (5th Cir. 2007).
235
Id. at 319.
236
Dkt. No. 31-1 Netherton Dep. 10:5–9, 39:21–40:9; see also Dkt. No. 31-2 (photograph of Netherton on the
porch).
237
Dkt. No. 31-1 Netherton Dep. 35:3, 38:9–10, 46:11–12.
238
See Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:03–13:49:13. Lara’s rifle shot occurred at the same
moment the truck struck the tree and all of Netherton’s testimony concerned “after the truck hit the tree.” See, e.g.,
Dkt. No. 31-1 Netherton Dep. 16:1–20.
233
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in those locations. At best, Netherton’s deposition testimony is ambiguous regarding whether she
witnessed any of Decedent’s actions in the truck.239
Even assuming Netherton was able to view Decedent’s actions in the truck at some point,
nowhere does Netherton state she witnessed Decedent’s actions “as Lara began shooting.”
Plaintiff points to no portion of Netherton’s deposition testimony that could support such.
Plaintiff cites to the following portion of Netherton’s deposition:
Q: After the truck hit the tree, could you—could you see whether the driver was
doing anything inside the truck?
Netherton: Wasn’t doing anything.240
This contains no reference to any specific period of time. However, when Netherton’s deposition
testimony is read in context, Netherton indicates that she believed Decedent “was already gone”
at that moment,241 and then refers to the truck rolling backwards, which occurred after Lara had
stopped shooting.242 Plaintiff additionally cites to testimony by Ranger Callaway who
interviewed Netherton a few days after the incident.243 However, Ranger Callaway testified that
“[a]ll [Netherton] saw was how it ended.”244 Thus, none of the evidence cited by Plaintiff
establishes that Netherton testified that Decedent “wasn’t doing anything inside the truck as Lara
began shooting” as Plaintiff asserts.
Plaintiff provides no timeline or analysis of any other evidence in the record to support
Plaintiff’s assertion that Netherton’s testimony was in reference to the time “as Lara began
239
See discussion supra Part IV.Section b.iv.3.
See Dkt. No. 29 p. 9 (citing Netherton Dep. 16:1–4).
241
Dkt. No. 31-1 Netherton Dep. 16:5.
242
See Dkt. No. 31-1 Netherton Dep. 16:17–20; see also Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:13–
13:50:05.
243
Dkt. No. 29 p. 6 (citing Dkt. No. 29-4 Callaway Dep. 259:23–260:9).
244
Dkt. No. 29-4 Callaway Dep. 260:4–5. The Court notes the Ranger Callaway’s testimony regarding Netherton’s
location during the shooting is hearsay. See Fed. R. Evid. 801(c). The Court cites to Ranger Callaway’s testimony
only to determine that Plaintiff has no support for his assertion.
240
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shooting.” The Court on its own considers the record and determines there is no evidence to
support Plaintiff’s claim that Netherton’s testimony is in reference to “as Lara began shooting.”
Netherton testified that after the crash she “went in the house,” and when she came back
outside the police officers “were shooting.”245 Thus, her testimony supports a reasonable
inference that Netherton was testifying she came outside during Lara’s shots. Additionally,
Netherton’s testimony does not contain any reference to seeing Lara shooting with a handgun.
However Netherton does testify she witnessed events that occurred after Lara stopped shooting:
the truck rolling backwards,246 De La Rosa hitting the windshield of the truck,247 and De La Rosa
shooting the window of the truck.248 Further, the photograph of Netherton shows Netherton on
the porch sometime after Lara began shooting,249 and De La Rosa testified that by the time
Netherton was “out of the way,” the initial shots were over.250
Accordingly, while this evidence does not definitely indicate that Netherton’s testimony
could not be in reference to Decedent’s actions in the truck at the moment Lara began shooting,
neither does the evidence provide any support for such a theory.251 The Court finds Plaintiff’s
citation to Netherton’s testimony is ‘only a scintilla of evidence’ and insufficient to meet
Plaintiff’s burden and defeat a motion for summary judgment.252 Plaintiff, therefore, has not
provided evidence sufficient to reasonably infer that Netherton’s testimony was in reference to
the moment Lara began shooting.
245
Dkt. No. 31-1 Netherton Dep. 10:1–9.
Dkt. No. 31-1 Netherton Dep. 16:17–20.
247
Id. 16:21–25.
248
Id. 39:4–5.
249
See Dkt. No. 31-2. The photograph of Netherton on the porch does not have a time stamp. However, there are
two indications of the time it was taken: (1) the passenger side window of the truck is broken; and (2) the truck is
still stuck in the tree. This indicates that the photograph was taken after Lara’s first shot, which shattered the
passenger-side window of the truck see Dkt. No. 24-3 Lara Dep. 80:19–81:1, but prior to the truck rolling
backwards, which occurred at the end of the incident. See Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:54–
13:49:59.
250
Dkt. No. 24-9 De La Rosa Dep. 173:8–13.
251
Hathaway, 507 F.3d at 322.
252
See Little, 37 F.3d at 1075.
246
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The Court now turns to the remaining testimony regarding Decedent’s actions in the
truck at the moment Lara began shooting. Although the Court must make all reasonable
inferences in favor of Plaintiff, the Court must also consider evidence in favor of Defendants that
is “uncontradicted and unimpeached,” at least such evidence that comes from “disinterested
witnesses.”253 Given that Plaintiff points to no evidence that Netherton was testifying she saw
Decedent’s actions in the truck as Lara began shooting, the Court must consider as
uncontradicted the evidence of the other witnesses who testified as to Decedent’s actions during
that time.
Cabrera, Lara, and Rinehart each testified he was in a position to view the entire
shooting, including as Lara began shooting,254 and each testified that throughout the shooting
Decedent attempted to place the truck in reverse, continued moving, and did not heed
commands.255 Even were the Court to disregard the testimony of Cabrera and Lara as interested
witnesses, Rinehart, a community member, is disinterested, and corroborates the testimony of
Lara and Cabrera.
Accordingly, the Court finds that Netherton’s testimony does not indicate she was
testifying regarding Decedent’s actions at the moment Lara began shooting, and absent any
contradicting evidence, the Court must consider the testimony of Cabrera, Lara, and Rinehart
regarding Decedent’s actions inside the truck as Lara began shooting. The evidence before the
Court—and the lack of specific facts to the contrary—requires the Court to conclude Plaintiff has
failed to contradict Defendants’ evidence that Decedent was moving in the truck, attempting to
253
Reeves, 530 U.S. at 150.
See Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:03–13:50:00; Dkt. No. 24-10 Rinehart Dep. 14:5–20.
255
See Dkt. No. 24-3 Lara Dep. 80:14–81:1; Dkt. No. 24-6 Cabrera Interview 25:1–13; see also Dkt. No. 24-8
Cabrera Dep. 121:11, 128:18–20; Dkt. No. 24-10 Rinehart Dep. 9:16–23:20.
254
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put the car in reverse, and failing to obey the officers’ commands throughout the period Lara was
firing his handgun.
3. Lara’s Credibility
Plaintiff alleges there are discrepancies in Lara’s testimony that indicate Lara’s version of
events are not credible. Namely, Plaintiff argues: (1) Lara did not command bystanders to get out
of the way as he stated in his deposition testimony; (2) Lara did not fire his rifle in the street as
Lara originally testified; and (3) Lara’s unit was not disabled by the impact with Decedent’s
truck as Lara initially claimed.256
A motion for summary judgment cannot be defeated solely by “conclusional allegations
that a witness lacks credibility.”257 Additionally, the “failure to remember certain details does not
amount to a ‘well-supported suspicion of mendacity’ which is required to undermine an affiant’s
credibility.258
Plaintiff raises no issue that would undermine the credibility of Lara’s testimony. That
bystanders may not have heeded Lara’s command to leave the area, or that other individuals may
have been in the area who did not hear Lara’s command, does not raise a reasonable inference
that Lara did not give any commands or that Lara’s testimony is lacking in credibility.
Plaintiff’s next claim amounts to no more than that Lara’s memory was imperfect. This
does not raise “well-supported suspicion of mendacity.”259 Lara’s position when he fired the rifle
shot is unclear from the evidence in the record and his exact location when he fired the rifle is a
256
See Dkt. No. 29 pp. 11–13.
Thomas v. Great Atlantic and Pacific Tea Co., 233 F.3d 326, 331 (5th Cir. 2000).
258
Hathaway, 507 F.3d at 322.
259
Thomas, 233 F.3d at 331.
257
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matter of difference of, at most, a few seconds and a few feet. 260 That Lara may not have
accurately remembered his location does not indicate any mendacity.
Finally, Plaintiff’s claim that Lara stated in his deposition that his unit was not disabled
by Decedent striking his vehicle is not supported by Lara’s deposition testimony. Lara indicates
he could reverse his vehicle by a short distance after the collision,261 but the vehicle could not go
more than “about a couple feet.”262 This does not indicate mendacity or in any way undermine
Lara’s credibility. Accordingly, the Court finds Plaintiff’s arguments regarding Lara’s credibility
are unwarranted.
4. Lara’s Perceptions
Plaintiff raises a number of issues regarding Lara’s perceptions that Plaintiff contends
raises disputes of fact, or again, serve to impeach Lara’s credibility. Plaintiff argues that (1) Lara
must have known Officer Cabrera had not been killed or injured;263 (2) Lara could not have
reasonably perceived his unit was intentionally struck by Decedent;264 (3) Lara could not have
reasonably perceived that his unit was disabled when Decedent struck it;265 and (4) it was
unreasonable for Lara to believe Decedent’s truck was operable after the crash.266
The Court finds that none of these are disputes of fact, nor do they implicate Lara’s
credibility. Plaintiff provides no evidence that the events did not happen or that Lara did not
perceive those events. Plaintiff does not dispute the “information available to” Lara. 267 Instead,
Plaintiff makes arguments regarding what Lara should have concluded based on those events.
260
See Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:00–13:49:09.
Dkt. No. 29-1 Lara Dep. 29:25–30:5.
262
Id. 37:5–8.
263
Dkt. No. 29 p. 11.
264
Id.
265
Id.
266
Id. at p. 15.
267
See Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001).
261
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However, as Plaintiff concedes, Lara’s subjective intent and motivations are irrelevant.268
At issue is whether Lara’s actions were objectively reasonable in light of the facts as Lara
perceived them, and the reasonableness of Lara’s actions are a question of law.269 Thus, the
Court considers the reasonableness of Lara’s actions in its legal analysis, to which it now turns.
c.
Legal Analysis
This motion for summary judgment concerns Plaintiff’s only remaining claims: Fourth
Amendment excessive force claims brought under 42 U.S.C. § 1983 against De La Rosa and
Lara. Defendants only challenge Plaintiff’s claims on grounds that De La Rosa and Lara are
entitled to qualified immunity.270
Because Defendants have invoked qualified immunity, the burden shifts to Plaintiff to
show the defense is not available.271 But where factual disputes exist, the Court accepts
Plaintiff’s version.272 However, to overcome qualified immunity, Plaintiff bears the burden of
negating the defense and “cannot rest on conclusory allegations and assertions but must
demonstrate genuine issues of material fact regarding the reasonableness of the officer’s
conduct.”273 To meet his burden Plaintiff must show two things: (1) that the allegations make out
a constitutional violation, and (2) that “the conduct was ‘objectively unreasonable in light of
clearly established law.’”274
268
Id.
See Scott v. Harris, 550 U.S. 372, 381 n.8 (2007) (“At the summary judgment stage, however, once we have
determined the relevant set of facts and drawn all inferences in favor of the nonmoving party to the extent
supportable by the record . . . the reasonableness of [an officer’s] actions . . . is a pure question of law.”) (internal
citations omitted).
270
See Dkt. No. 24 pp. 11–24.
271
Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010).
272
Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016).
273
Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005).
274
Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015) (quoting Thompson v. Upshur Cnty., Tex., 245 F.3d 447,
457 (5th Cir. 2001)).
269
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Courts may “exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.”275 Because Defendants do not challenge whether there is any
constitutional violation, the Court will consider the second prong first: whether the conduct of
De La Rosa and Lara was objectively unreasonable in light of clearly established law.
An officer is entitled to qualified immunity from a suit for damages if “a reasonable
officer could have believed the actions to be lawful, in light of clearly established law and the
information the officers possessed” at the time of the incident.276 Even if enforcement officials
err “they would be entitled to qualified immunity if their decision was reasonable, albeit
mistaken.”277 “[Q]ualified immunity purposefully shields police officers’ split-second decisions
made without clear guidance from legal rulings.”278
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” 279 This is an
objective standard: “the question is whether the officers’ actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting them, without regard to their underlying intent or
motivation.”280
Potentially deadly force is objectively reasonable where the officer “has probable cause
to believe that the suspect poses a threat of serious physical harm, either to the officer or to
others.”281 Whether the use of force was reasonable or excessive depends upon the totality of the
circumstances, including: the severity of the crime, amount of force used contrasted with the
275
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)).
277
Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993)
278
Pasco v. Knoblauch, 566 F.3d 572, 582 (5th Cir. 2009).
279
Graham v. Connor, 490 U.S. 386, 396 (1989).
280
Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir. 2008) (quoting Graham, 490 U.S. at 397).
281
Tennessee v. Garner, 471 U.S. 1, 11 (1985).
276
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amount of force needed, whether the suspect posed a safety risk to police or the public, and
whether the suspect was actively resisting arrest or evading arrest by flight.282 The court “must
consider all of the circumstances leading up to [the moment deadly force is used], because they
inform the reasonableness of [the officer’s] decisionmaking.”283 “The calculus of reasonableness
must embody allowance for the fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount
of force that is necessary in a particular situation.”284
In the case of a suspect fleeing in a car, “the real inquiry is whether the fleeing suspect
posed such a threat that the use of deadly force was justifiable.” 285 In Scott v. Harris, the
Supreme Court held that officers are not required to “allow fleeing suspects to get away
whenever they drive so recklessly that they put other people’s lives in danger” and may use
deadly force to “terminate a dangerous high-speed car chase.”286 There, the use of force to stop a
fleeing motorist was reasonable in part because the suspect posed “an actual and imminent threat
to the lives of any pedestrians who might have been present, to other civilian motorists, and to
the officers involved in the chase.”287 The Fifth Circuit has noted that the presence of “children
or bystanders in the path of the vehicle” could indicate immediate danger.288 Similarly, when
judging whether deadly force was reasonable to stop a suspect fleeing in a car, courts have
considered whether the suspect had already injured other officers or civilians with the vehicle.289
282
Bone v. Dunnaway, 657 F. App’x 258 (5th Cir. 2016).
Mendez v. Poitevent, 823 F.3d 326, 333 (5th Cir. 2016).
284
Graham, 490 U.S. at 396–97.
285
Lytle, 560 F.3d at 415.
286
550 U.S. at 385.
287
Id. at 384.
288
Lytle, 560 F.3d at 416.
289
See, e.g., Waterman v. Batton, 393 F.3d 471, 480 (4th Cir. 2005) (taking into consideration that officers believed
suspect had just used a vehicle as a deadly weapon); Scott v. Edinburg, 346 F.3d 752 (7th Cir. 2003) (finding that an
officer was justified in shooting at a fleeing suspect was justified because the suspect attempted to run over nearby
bystanders).
283
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In Waterman v. Batton, the Fourth Circuit considered whether officers were justified in
firing at a suspect after a high speed chase, during which the suspect attempting to run officers
off the road.290 In Waterman, after the high speed chase, the suspect slowed down and officers
positioned themselves in front of a toll booth and yelled at the suspect to stop. 291 The suspect
accelerated to fifteen miles an hour and the officers opened fire even though the suspect was not
driving directly at the officers.292 The Fourth Circuit, considering the “split-second nature of the
decision,” determined the officers were justified in firing at the suspect because it was reasonable
to believe the oncoming vehicle could turn and hit the officers and thus posed an immediate
threat of serious physical harm.293
In order to justify potentially deadly force, the threat of physical harm must be
“immediate.”294 Fifth Circuit case law “makes certain that once an arrestee stops resisting, the
degree of force an officer can employ is reduced.”295 Further, “an exercise of force that is
reasonable at one moment can become unreasonable in the next if the justification for the use of
force has ceased.”296 In Mason v. Lafayette City-Parish Consolidated Government, the Fifth
Circuit declined to provide qualified immunity to a police officer who fired two additional shots
at a suspect after the suspect was already prone from prior gun shots because “a clearly
incapacitated suspect” no longer poses an immediate threat of harm.297 In Lytle v. Bexar County,
290
393 F.3d 471 (4th Cir. 2005).
Id. at 474.
292
Id.
293
Id. at 478. The Fourth Circuit also found that subsequent shots, fired moments after the accelerating vehicle no
longer posed a danger were not justified. However, the Fourth Circuit nonetheless concluded the officers were
entitled to qualified immunity because the right was not clearly established. See id. at 480–483.
294
Garner, 471 U.S. at 11.
295
Cooper, 844 F.3d at 524; see, e.g., Anderson v. McCaleb, 480 F. App'x 768, 773 (5th Cir. 2012) (per curiam)
(officer “should have known that he could not continue to shock [the suspect] with the taser after he was no longer
resisting arrest”).
296
Lytle v. Bexar Cty. Tex., 560 F.3d 404, 413 (5th Cir. 2009); see also Ellis v. Wynalda, 999 F.2d 243, 247 (7th Cir.
1993) (“When an officer faces a situation in which he could justifiably shoot, he does not retain the right to shoot at
any time thereafter with impunity.”).
297
Mason v. Lafayette City-Parish Consol. Gov’t, 806 F.3d 268, 278 (5th Cir. 2015).
291
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Texas, the Fifth Circuit found a suspect fleeing in a car that “was three or four houses away”
from the officer had ceased to pose an “immediate” danger and at that point deadly force was no
longer justified.298 However, in Hathaway v. Bazany, the Fifth Circuit found an officer was
justified in firing at a suspect that drove at—and struck—an officer, even though the officer
could not recall whether he fired “before, during, or immediately after” he was struck. 299 The
Fifth Circuit reasoned, “[g]iven the extremely brief period of time an officer has to react to a
perceived threat like this one, it is reasonable to do so with deadly force.”300
When considering whether a suspect posed an immediate threat of harm, courts have also
considered factors regarding how threatening a reasonable officer could perceive the suspect.
Courts have found officers could reasonably believe the suspect poses a threat of immediate
harm if the officer reasonably believed the suspect was reaching for a weapon. 301 Courts have
found officers were justified in utilizing deadly force when they reasonably believed an object
could have been a deadly weapon, even if the object, in fact, did not pose a risk of harm.302
Additionally, courts consider whether the suspect ignored repeated officer demands when
assessing whether a suspect would pose a threat to officers or the community.303
298
Lytle, 560 F.3d at 413.
507 F.3d at 316.
300
Id. at 322.
301
See, e.g., Manis v. Lawson, 585 F.3d 839, 844–845 (5th Cir. 2009) (officers justified in shooting a suspect that
reached under his seat as if reaching for a weapon); Ontiveros v. City of Rosenberg, 564 F.3d 379, 385 (5th Cir.
2009) (suspect ignored officer’s commands and suspect was shot when he reached into a boot for what the officer
believed to be a weapon); Reese v. Anderson, 926 F.2d 494, 501 (5th Cir. 1991) (suspect repeatedly disobeyed
officer’s instructions to raise his hands, and was shot when he reached below the officer’s line of sight); Young v.
City of Killeen, TX, 775 F.2d 1349, 1352-53 (5th Cir. 1985) (suspect responded to the officer’s order to step out of
his car by reaching down to the floorboard and was shot).
302
See, e.g., Grigsby v. Lawing, No. 5:16CV16-RWS-CMC, 2017 U.S. Dist. LEXIS 219523, at *54 (E.D. Tex. Aug.
21, 2017) (finding it was reasonable for an officer to see “a shiny metal object” in the suspect’s hand and believe it
was a knife, when it was actually a spoon); Reese, 926 F.2d at 501 (police did not use excessive force where suspect
repeatedly refused to keep hands raised and appeared to be reaching for an object, despite the “fact that [suspect]
was actually unarmed”); Young, 775 F.2d at 1353 (use of deadly force permitted when suspect refused instructions
to exit the vehicle and reached down to the floorboard despite being unarmed).
303
See, e.g., Clayton v. Columbia Cas. Co., 547 F. App’x 645, 653 (5th Cir. 2013) (qualified immunity appropriate
where “suspect with dangerous and violent propensities” “continued toward the Deputy, ignoring his commands”);
Manis, 585 F.3d at 844 (5th Cir. 2009) (considering the fact that the suspect ignored repeated police commands”);
299
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A right is clearly established if a reasonable official would understand that what he is
doing violates that right.304 An official’s actions are held to be reasonable unless “all reasonable
officials” in the same circumstances would have known that the conduct violated the plaintiff’s
asserted rights.305 The focus of the analysis is on whether an official had “fair notice” that the
conduct was unreasonable and is judged against “the backdrop of the law at the time of the
conduct.”306 The inquiry must be undertaken in light of “the specific context of the case, not as a
broad general proposition.”307
To find an official had fair notice “there must be a controlling authority—or a robust
consensus of persuasive authority—that defines the contours of the right in question with a high
degree of particularity.”308 The Fifth Circuit has noted that, “[e]xcessive force incidents are
highly fact-specific and without cases squarely on point, officers receive the protection of
qualified immunity.”309 However, “this does not mean that ‘a case directly on point’ is
required.”310 Rather, “existing precedent must have placed the statutory or constitutional
question ‘beyond debate.’”311 “The dispositive question is ‘whether the violative nature of
particular conduct is clearly established.’”312
Ramirez, 542 F.3d at 131 (“The totality of Ramirez’s conduct could reasonably be interpreted as defiant and
threatening. He repeatedly refused the officers’ commands and ultimately stood, armed, several yards from the
officers.”); Elliot v. Leavitt, 99 F.3d 640, 643 (4th Cir. 1996) (officers justified in their use of force partially because
they fired only after the suspect ignored orders to disarm).
304
Creighton, 483 U.S. at 640.
305
Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir. 2001).
306
Brosseau v. Haugen, 543 U.S. 194, 198 (2004).
307
Id.
308
Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir. 2011) (en banc) (internal quotation marks and citation
omitted).
309
Ontiveros, 564 F.3d at 383 n.1 (5th Cir. 2009); see also Creighton, 483 U.S. at 638 (“[Q]ualified immunity
protects all but the plainly incompetent or those who knowingly violate the law.” (internal quotation omitted)).
310
Cooper, 844 F.3d at 524 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).
311
Id.
312
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (emphasis in original) (quoting Ashcroft v. al-Kidd, 563 U.S. 731,
742 (2011)).
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i. De La Rosa
Plaintiff concedes that summary judgment should be granted as to De La Rosa.313 The
Court also finds that summary judgment is warranted. De La Rosa did not fire at Decedent, the
evidence shows the one bullet he fired did not strike Decedent, and De La Rosa took no other
action that could constitute excessive force. Accordingly, the Court GRANTS Defendants’
motion for summary judgment in relation to De La Rosa, and Plaintiff’s claims against De La
Rosa are DISMISSED WITH PREJUDICE.
ii. Lara
The Court now turns to whether Plaintiff, viewing the record in the light most favorable
to the Plaintiff, has demonstrated that Lara’s shots constituted an excessive force under the
Fourth Amendment. Because the circumstances changed between Lara’s rifle shot and the
subsequent handgun shots, the Court will consider each action separately.
1. Lara’s Rifle Shot
Plaintiff does not meet the high burden of establishing Lara is not entitled to qualified
immunity for his decision to fire the rifle at Decedent as Decedent drove in his direction.
Plaintiff points to no case squarely on point, and no precedent that places the violation beyond
debate.
The Court concludes Lara’s decision to fire the rifle through the windshield of
Decedent’s truck could be objectively reasonable: Lara reasonably believed Decedent was a
felon who was fleeing arrest, had already harmed or attempted to harm others, and was driving in
the general direction of Lara and other bystanders. In such circumstances the use of deadly force
may be objectively reasonable. However, the Court need not decide whether the rifle shot
313
Dkt. No. 29 p. 1 n. 1.
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constitutes excessive force, because case law does not establish that any violation was so clearly
established that Lara would have fair notice that his action was objectively unreasonable.
Numerous courts have found that officers are justified in using potentially deadly harm
against a suspect in a vehicle, where that vehicle could be used to cause immediate and serious
harm, both to fellow officers and bystanders.314 Indeed, the circumstances here remind the Court
of Scott, where the suspect engaged in “a Hollywood-style car chase of the most frightening sort,
placing police officers and innocent bystanders alike at great risk of serious injury.”315 Dash cam
footage shows Decedent either hit or nearly hit Cabrera before driving the red truck through the
narrow streets of the tightly-packed trailer homes of the retirement community at speeds in
excess of fifty miles per hour.316 As Decedent approached where Lara was positioned in the
street, instead of surrendering to police, Decedent swerved and crashed into a tree while traveling
at a “fast rate.”317 Thus, precedent indicates that Lara, like the officers in Waterman, could have
reasonably perceived that in a split-second as Decedent drove in Lara’s direction that Decedent
could have turned the vehicle and struck an officer or a bystander.318
Additionally, Lara had credible information that Decedent had already used the truck as
a weapon, and courts in similar circumstances have deemed the use of potentially deadly force
reasonable in these circumstances.319 Lara had heard over the radio “officer down” and credibly
believed that Decedent had killed or gravely wounded an officer, regardless of whether it was
officer Cabrera or another officer,320 and had heard over Dispatch that Decedent had nearly
314
See, e.g., Scott, 550 U.S. at 385; Lytle, 560 F.3d at 416.
Scott, 550 U.S. at 380.
316
See generally Dkt. No. 24-7 Cabrera Dash Cam.
317
See Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:00–13:49:05; Dkt. No. 24-10 Rinehart Dep. 19:1–5.
318
See Waterman, 393 F.3d at 478.
319
See id at 480; Scott, 346 F.3d at 752.
320
Dkt. No. 24-3 Lara Dep. 13:1–2. Plaintiff argues it was unreasonable for Lara to believe that Decedent had
injured an officer because Lara should have realized the unit in front of him was driven by Cabrera and therefore
315
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struck a bystander with the truck moments before.321 Lara had personally witnessed Decedent
ram Lara’s vehicle, whether intentional or unintentional.322 It is in these circumstances that Lara
fired a single rifle shot through the windshield of the truck. Plaintiff brings no case to show that
Lara’s decision to fire at Decedent as Decedent drove rapidly in Lara’s general direction to stop
Decedent from continuing to flee from police was not objectively reasonable.
Plaintiff argues that if the rifle shot occurred after the truck hit the tree Lara could no
longer have reasonably perceived Decedent to be a threat, and that Lara had fair notice that firing
on a suspect who was no longer a threat would be a constitutional violation.323 However,
Plaintiff points to no precedent showing that the reasonableness of Lara’s conduct could depend
on the split-second between Decedent driving at a fast rate in Lara’s direction and Decedent’s
flight being abruptly stopped by striking the tree. Lara fired nearly at the same instant the truck
hit the tree.324 Like the officer in Hathaway, Lara had an “extremely brief period of time” to
react to Decedent’s perceived threat.325 Thus, case law indicates that in these circumstances
whether Lara fired the rifle a moment before or a moment after the truck crashed is irrelevant,
and Plaintiff brings no case law establishing otherwise.
Based on the foregoing, the Court finds that Plaintiff has pointed to no clearly established
legal principle supporting that Lara’s decision to fire the rifle at Decedent as Decedent drove in
his direction was objectively unreasonable. The moments as Decedent drove at Lara were an
“evolving circumstance” where the Lara’s split-second decision must be considered in light of
Cabrera was not injured. Dkt. No. 29 p. 11. However, Plaintiff does not dispute that Lara heard “officer down” from
Dispatch. Thus, Lara’s belief is credible even if Lara could have seen Cabrera.
321
Dkt. No. 24-3 Lara Dep. 54:11–15.
322
Dkt. No. 24-7 Lara Dash Cam time stamp 13:46:38–42; Dkt. No. 29-8; Dkt. No. 29-9. see also Dkt. No. 24-3
Lara Dep. 25:14–20.
323
See Cooper, 844 F.3d at 524.
324
Dkt. No. 24-7 Cabrera Dash Cam time stamp 13:49:02–13:49:07, Lara Dash Cam time stamp 13:49:04–13:49:09.
325
Hathaway, 507 F.3d at 322.
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the totality of the circumstances.326 This is exactly the sort of decision that must be considered
from the perspective of Lara at the scene and not reviewed with “20/20 hindsight,”327 and where
qualified immunity “purposefully shields police officers’ split-second decisions.”328
Thus, Lara is entitled to qualified immunity for the rifle shot that went through
Decedent’s windshield. The Court now turns to considering whether Plaintiff has met his burden
of demonstrating the Lara’s handgun shots violated clearly established law.
2. Lara’s Handgun Shots
Plaintiff again does not meet the high burden of establishing Lara is not entitled to
qualified immunity for the four handgun shots. Plaintiff points to no case squarely on point and
no precedent that places the violation beyond debate.
As with the rifle shot, the Court determines Lara’s decision to fire the four handgun shots
also could be objectively reasonable. Although Lara faced a different set of circumstances, the
information available to Lara regarding the potential threat posed by Decedent remained the
same. Namely, Lara could reasonably perceive Decedent had recently attempted to harm officers
and civilians with the truck. Thus, Lara could reasonably believe Decedent’s attempts to place
the truck in reverse posed a threat of immediate harm.329 Therefore, Lara’s decision to fire his
handgun at Decedent as Decedent attempted to place the truck in reverse may be objectively
reasonable. Again, the Court need not decide whether the handgun shots constitute excessive
force, because case law does not establish that any violation was so clearly established that Lara
would have fair notice that his action was objectively unreasonable.
326
Graham, 490 U.S. at 396–97.
Id at 396.
328
Pasco, 566 F.3d at 582.
329
See, Garner, 471 U.S. at 11; Waterman, 393 F.3d at 480; Scott, 346 F.3d at 752.
327
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Plaintiff attempts to draw comparisons with Mason v. Lafayette City-Parish Consolidated
Government and Lytle v. Bexar County, Texas.330 Plaintiff argues Netherton’s testimony
establishes a dispute of fact regarding Decedent’s actions at the time Lara fired. 331 The Court
disagrees. As already explained, Netherton’s testimony does not reference Decedent’s actions at
the time Lara began shooting. Instead, the Court must credit the uncontradicted, sworn testimony
of Lara, Cabrera, and Rinehart as to Decedent’s actions at that time. Thus, here, the facts are
easily distinguishable from Mason and Lytle.
In Mason, an officer fired two shots at a suspect lying on the floor who had already been
injured from a series of prior gun shots.332 Here, unlike in Mason, Decedent was not
incapacitated as Lara fired, but was ignoring all officer commands, actively attempting to put the
truck into reverse, flee, and potentially use the truck as a weapon. 333 This case is further
distinguished from Mason because Lara fired until Decedent stopped resisting and once
Decedent no longer posed a threat after the fourth shot, Lara stopped firing.334
In Lytle, an officer fired at a suspect who was driving away from the officer and was
“three or four houses” away by the time the officer fired. 335 Again, Lytle is distinguishable from
the facts at issue. Lara was not facing a suspect who was fleeing and was no longer a threat, but
instead a suspect who was in the immediate vicinity and who was attempting to dislodge a
weapon—the truck. Thus, neither Mason nor Lytle suffice to meet Plaintiff’s burden of
demonstrating a case on point or a constitutional precedent that is beyond debate.
330
See Dkt. No. 29.
See Dkt. No. 32-1 p. 5.
332
Mason, 806 F.3d at 278.
333
Dkt. No. 24-3 Lara Dep. 80:14–81:1; Dkt. No. 24-8 Cabrera Dep. 121:11, 128:18–20; Dkt. No. 24-10 Rinehart
Dep. 20:22–23, 56:19–58:14.
334
Dkt. No. 24-3 Lara Dep. 80:14–81:1; see also see Dkt. No. 24-10 Rinehart Dep. 56:19–58:14.
335
Lytle, 560 F.3d at 413.
331
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Case law indicates that Lara would not have fair notice that his conduct violated a clearly
established right. Courts have found that officers could reasonably perceive an immediate threat
of harm when a suspect fails to follow commands,336 and when a suspect reaches for something
that an officer reasonably believes to be a weapon.337 Such circumstances confronted Lara. Lara
and Cabrera shouted commands at Decedent to stop moving or to get out of vehicle.338 These
commands were ignored and instead Decedent attempted to put the truck in reverse. 339 Plaintiff
argues that Lara could not have reasonably believed the truck was a deadly weapon because it
was damaged by the crash, and thus could have been inoperable.340 However, courts have found
that officers can reasonably believe an object could have been a deadly weapon, even if the
object, in fact, did not pose a risk of harm.341 This is analogous to the circumstances facing Lara.
At the moment Decedent attempted to put the truck in reverse, Lara could reasonably have
perceived the truck could be used as weapon, and he is protected from liability even if he was
ultimately mistaken.342
In sum, after the crash Decedent had multiple chances to stop his attempts to flee, or to
surrender himself, but instead Decedent attempted to put the truck in reverse. Lara then fired at
Decedent to stop Decedent from potentially using the truck as a weapon and Lara ceased firing
once Decedent stopped resisting.343 Plaintiff has brought no case law to indicate Lara had fair
notice that such conduct would violate a clearly established constitutional precedent.
336
See, e.g., Clayton, 547 F. App’x at 653; Manis, 585 F.3d at 844; Ramirez, 542 F.3d at 131.
See, e.g., Manis, 585 F.3d at 844–845; Ontiveros, 564 F.3d at 385; Reese, 926 F.2d at 501.
338
See Dkt. No. 24-7 Video Record of Police Unit 267 Dash Cam Footage time stamp 13:49:00–13:50:34; Dkt. No.
24-3 Lara Dep. 74:14–18; Dkt. No. 24-6 Cabrera Interview 25:5–6; Dkt. No. 24-10 Rinehart Dep. 20:22, 22:1.
339
Dkt. No. 24-3 Lara Dep. 80:14–81:1; Dkt. No. 24-8 Cabrera Dep. 121:11, 128:18–20, Dkt. No. 24-10 Rinehart
Dep. 56:19–58:14.
340
Dkt. No. 29 p. 15.
341
See, e.g., Reese, 926 F.2d at 501; Young, 775 F.2d at 1353.
342
See Lampkin, 7 F.3d at 435.
343
Dkt. No. 24-3 Lara Dep. 80:14–81:1.
337
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Accordingly, the Court finds Lara is entitled to qualified immunity. Based on the
foregoing the Court, GRANTS Defendants’ motion for summary judgment as to Lara and all
Plaintiff’s claims against Lara are DISMISSED WITH PREJUDICE.
V.
INJUNCTIVE AND DECLARATORY RELIEF
Although not addressed by Defendants, Plaintiff also requested declaratory and injunctive
relief in his complaint.344 Plaintiff may not raise a claim for declarative or injunctive relief if he
otherwise fails to establish success on the merits of his claims.345 Plaintiff’s claims have all been
dismissed, thus injunctive relief or declarative relief are not warranted here. Consequently,
Plaintiff’s request for injunctive and declarative relief is DISMISSED WITH PREJUDICE.
VI.
HOLDING
Based on the foregoing, the Court GRANTS Defendants’ motion for summary
judgment.346 Plaintiff’s remaining claims against Lara and De La Rosa, and Plaintiff’s entire
complaint, are DISMISSED WITH PREJUDICE. Pursuant to Rule 58, a final judgment shall
issue separately.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 17th day of July, 2019.
___________________________________
Micaela Alvarez
United States District Judge
344
Dkt. No. 7 pp. 22–23, ¶¶ 76–77.
Injunctive relief requires the movant to establish, among other things, that there is a substantial likelihood of
success on the merits. See Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011). Federal district courts in Texas have
denied declaratory requests after determining that the substantive causes of action are meritless. See e.g., Wigginton
v. Bank of New York Mellon, No. 3:10–CV–2128–G, 2011 WL 2669071, at *5 (N.D. Tex. July 7, 2011) (declining
to consider a request for declaratory relief without a viable cause of action); Broyles v. Chase Home Fin., 3:10-CV2256-G, 2011 WL 1428904, at *5 (N.D. Tex. Apr. 13, 2011) (denying declaratory judgment request because
substantive causes of action dismissed).
346
Dkt. No. 24.
345
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