John Pharr v. Christopher Willie et al

Filing 81

ORDER GRANTING 41 Motion for Summary Judgment; GRANTING 42 Motion for Summary Judgment; GRANTING 29 Motion to exclude. Signed by Judge David A. Ezra. (td)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JOHN PHARR,

§
§
Plaintiff,
§
§
vs.
§
§
CHRISTOPHER WILLE, STEVEN
§
McDANIEL, ART ACEVEDO in his §
official capacity as the Chief of Austin §
Police, and CITY OF AUSTIN,
§
§
Defendants.
§

No

-DAE

OMNIBUS ORDER: (1) GRANTING MOTION TO EXCLUDE EXPERT;
(2) GRANTING POLICE OFFICERS’ MOTION FOR SUMMARY JUDGMENT;
(3) GRANTING CHIEF ACEVEDO’S AND THE CITY OF AUSTIN’S
MOTION FOR SUMMARY JUDGMENT
Before the Court are three motions: (1) a Motion to Exclude the
Expert Testimony of Dr. George Kirkham (“Dr. Kirkham”) filed by Police Officer
Christopher Wille, Police Officer Steven McDaniel, Chief Art Acevedo, in his
official capacity as the Chief of Austin Police, and the City of Austin (collectively,
“Defendants”) (Dkt. # 29); (2) a Motion for Summary Judgment by Officers Wille
and McDaniel (Dkt # 42); and (3) a Motion for Summary Judgment by Chief
Acevedo and the City of Austin (Dkt. # 41). On July 28, 2016, the Court heard
oral argument on all three motions: Randall Buck Wood, Esq., appeared on behalf
of Plaintiff John Pharr, and Lynn E. Carter, Esq., appeared on behalf of
1

Defendants. After careful consideration of the memoranda filed in support of and
in opposition to the instant motions, as well as the arguments made at the hearing,
the Court, for the reasons that follow, GRANTS Defendants’ Motion to Exclude
the Testimony of Dr. George Kirkham (Dkt. # 29), GRANTS Officers Wille’s and
McDaniel’s Motion for Summary Judgment (Dkt. # 42), and GRANTS Chief
Acevedo’s and the City of Austin’s Motion for Summary Judgment (Dkt. # 41).
BACKGROUND
At 3:22 a.m. on August 14, 2012, Police Officer Christopher Wille
first noticed a vehicle driven by Pharr in the “Charlie” sector in Austin, Texas—a
sector known for its high volume of criminal activity and where individuals often
carry weapons. (“Wille Decl.,” Dkt. # 41-6, Ex. BB ¶¶ 15, 17; “McDaniel Decl.,”
Dkt. # 41-18, Ex. CC ¶ 14.) Officer Wille observed Pharr’s vehicle drift toward
the right curb, then quickly swerve to the left to avoid striking the curb, and then
drift again across the center line. (Wille Decl. ¶ 17.) Officer Wille decided to
initiate a traffic stop by activating his overhead lights. (Id. ¶ 18.) Upon initiating
his overhead lights, a video camera on the patrol car’s dash board (“dash cam”)
automatically activated to record video and audio. (Id. ¶ 19.)
The Court’s review of the dash cam video clearly shows Pharr use his
right turn signal and turn right onto a side street upon Officer Wille’s initiation of
the traffic stop. (“Wille Dash Cam,” Dkt. # 41, Ex. BB, Attach. 2 at 3:24:32.)
2

Pharr, however, made the right-hand turn too widely and crossed over a double
yellow line and five lanes of traffic, coming to a stop on the wrong side of the
street and facing on-coming traffic. (Id.
Wille pulled his patrol car behind Pharr’s stopped vehicle, Pharr immediately
opened his driver-side door. (Id. at 3:25:00.) Officer Wille shouted “get in your
car,” “stay in your car,” and “shut the door,” in short sequence. (Id. at
r complied and closed his door.
Twelve seconds later, Officer Wille approached Pharr’s vehicle,
shined his flashlight into the vehicle, and asked “why did you pull over on the left
hand side of the road?” (Id. at 3:25:19.) Pharr’s answer is unintelligible from the
dash cam audio. Officer Wille observed more occupants in the vehicle and Pharr
told him that three people were inside. (Id.

The vehicle’s

windows were tinted, and Officer Wille and Pharr had the following exchange:
Officer Wille: Roll down your back window.
Pharr: Roll down my back window?
Officer Wille: That’s what I said. Roll down your back window.

3

Pharr did not comply with the request, Officer Wille said “did I stutter?”1 (Id. at
3:35:34.)
At this point, Defendant, Officer Steven McDaniel, arrived on the
scene. Officer McDaniel parked his patrol car directly in front of Pharr’s vehicle; a
video camera on Officer McDaniel’s dash board was actively capturing video and
audio during the following events. (See “McDaniel Dash Cam,” Dkt. # 41, Ex.
CC, Attach. 2.) Both officers stood outside the drivers-side door while Officer
Wille continued to question Pharr. Officer Wille asked Pharr for his “driver’s
license and insurance,” (3:25:50) and asked Pharr to extinguish his cigarette (id. at
3:26:08). Pharr once again responded in the form of a question by saying “put my
cigarette out?” (Id. at 3:26:10.) Officer Wille replied by saying “is this a game
we’re going to play all night long? When I tell you to do something, do it. Stop
questioning what I’m telling you and do it. Put your cigarette out.” (Id. at
However, Pharr did not extinguish his cigarette and instead
replied “sir, your name is Wille?” (Id. at 3:26:22.) Officer Wille answered “yes,”
and Pharr responded by asking a question, “yes?” (Wille Dash Cam at

1

Subsequently, the Austin Police Department (“APD”) counseled Officer Wille
that his “interaction with [Pharr was] very confrontational and not professional.”
(“Sweeney Email,” Dkt. # 41-21, Ex. 3.)
4

Up until this moment, the Court notes that Pharr’s behavior during the
traffic stop was largely non-compliant and he appeared agitated and increasingly
aggressive. (Wille Decl. ¶
deposition testimony establishes that he was upset about being pulled over and he
admits that he was not respectful to Officer Wille during the traffic stop. (“Pharr
Dep. Tr.,” Dkt. # 41-19
passenger’s in Pharr’s vehicle, also gave explicit deposition testimony that Pharr
was upset, angry, and “high-toned” upon getting pulled over by Officer Wille.
(“Pitra Dep. Tr.,” Dkt. # 41-

gave

sworn testimony that they smelled alcohol emanating from Pharr’s breath and from
0; “McDaniel Dep. Tr.,”
Dkt. # 41-

Pharr admitted that he consumed half a

pitcher of beer and another one or two beers on the night of his arrest. (Pharr Dep.

Officer Wille asked Pharr for his driver’s license and insurance, but
instead changed his command mid-sentence to “step out” and opened the driversside door. (Wille Dash Cam at 3:26:26.) Pharr replied by saying “okay, I’ll step
out, I’ll step out.” (Id.

Pharr was wearing sneakers, shorts,

an un-tucked t-shirt and a baseball cap. Immediately upon Pharr stepping out of
the vehicle, Officer Wille placed his left hand on Pharr’s left wrist and his right
5

hand on Pharr’s upper left arm. (Id. at 3:26:29.) Officer Wille states that he took
control of Pharr’s left arm because he intended to frisk Pharr for weapons prior to
conducting a field sobriety test. (Wille Decl ¶ 31.) When Pharr stepped out of the
vehicle, he was holding a lit cigarette in his left hand and the dash cam audio
clearly indicates that Officer Wille told Pharr to “put your cigarette down” and
Officer McDaniel said “put your cigarette out.” (Wille Dash Cam at 3:26:30.)
Wille’s dash cam video clearly shows that Pharr exited the vehicle, but instead of
just standing still upon exiting, he took three steps past Officer Wille as the officer
attempted to maintain control of his left arm. (Id.

Pharr

admits that he took steps away from both Officer Wille and the vehicle upon
exiting, even though Officer Wille had control of his left arm. (Pharr Dep. Tr. at
Officer Wille can be seen on the dash cam video losing his
balance and dropping his flash light. Simultaneously, Officer Wille said “hey, hey
stop.” (Wille Dash Cam at 3:26:30; “Sweeny Dep. Tr.,” Dkt. # 41-21 at
5.))
The following moment is disputed: Officer Wille contends that Pharr
“tensed his arms, actively pulled his left arm away from [him],” and that is why he
instructed Pharr to “stop.” (Wille Decl. ¶ 31.) Pharr disagrees and disputes this
fact. He states that he neither stiffened his left arm nor pulled his left arm away

6

However, as mentioned
above, Pharr admits to taking steps past Officer Wille.
Nevertheless, Officer Wille conducted a take-down maneuver on
Pharr; he took Pharr down onto a residential lawn supported by a knee-high
retaining wall. (Wille Decl. ¶ 31; Wille Dash Cam at 3:26:33.) Pharr landed facedown and Officer Wille assumed a position on Pharr’s back while Officer
McDaniel took control of Pharr’s legs. While Pharr was on the ground, Officer
Wille took control of Pharr’s right arm and held it in a wrist lock. (Wille Decl.
¶ 31.) Pharr admits that his left arm was underneath his stomach. (Pharr Dep. Tr.

Officer Wille can be heard saying “when I fucking tell you do something, give me
your hand.” (Wille Decl. ¶ 33.)
Next, the dash cam audio establishes that Officer Wille yelled at Pharr
three separate times to give up his left hand while on Pharr’s back. (Wille Dash
Cam at 3:26:40, 3:26:42, 3:26:44.) Officer Wille admits that he delivered one
empty-handed, closed-fist strike to Pharr’s rib cage in an effort to cause Pharr to
roll over and release his left arm. (Wille Decl. ¶ 34.) Pharr did not release his left
arm and Officer McDaniel administered five closed-fist punches to Pharr’s left
thigh. (Wi

17; McDaniel Dash
Accordingly to Lieutenant Sweeney, the officers’
7

supervisor, it was common practice for police officers to target the peroneal nerve
in the thigh to gain compliance from a non-compliant person during an arrest.
(Sweene

During the struggle, both officers yelled at

at 3:27:05.) Pharr’s deposition testimony, however, states that he was not
resisting, he never tried to hold his arm underneath his body, and that he could not

After Officer McDaniel’s final strike to Pharr’s leg, Officer Wille announced that
he had control of Pharr’s other hand. (Wille Dash Cam at 3:26:52.) Neither
officer struck Pharr again. The entire episode, from the moment Pharr stepped out
of the vehicle to Officer McDaniel’s fifth and final strike, lasted 22 seconds.
On August 13, 2014, Plaintiff Pharr filed the instant lawsuit. (Dkt.
# 1.) Pharr alleges the following causes of actions: (1) violation of his Fourth and
Fourteenth Amendment rights to be free from excessive force brought pursuant to
42 U.S.C. § 1983; (2) assault and battery against Officer Wille; (3) assault and
battery against Officer McDaniel; (4) false imprisonment by Officer Wille;
(5) false imprisonment by Officer McDaniel; (6) malicious criminal prosecution by
Officer Wille; (7) malicious prosecution by Officer McDaniel; and (8) negligent
hiring, supervision, training, and retention by the Chief of Police and the City of
Austin. (Id.). On April 12, 2016, the Court issued an order dismissing the false
8

imprisonment claims, malicious prosecution claims, and the negligent hiring
claims based on Pharr’s voluntary dismissal pursuant to Federal Rule of Civil
Procedure 41(a)(2). (Dkt. # 68.)
On September 14, 2015, Pharr filed a Supplemental Expert Witness
Disclosure notice. (Dkt. # 24.) In that notice, Pharr filed Dr. Kirkham’s expert
report. The opinions rendered in Dr. Kirkham’s expert report can generally be
summarized as follows:
1. Officer Wille and the Austin Police Department (”APD”)
“committed extremely serious violations of well established
standards and procedures of the law enforcement profession;”
2. Officer Wille exhibited the psychological condition of “badge
heaviness” and “John Wayne Syndrome” as evidenced by his
statements and body posture prior to asking Pharr to step out of the
vehicle;
3. That APD has “clearly adopted a de facto custom and practice of
allowing and justifying the use of [sic] excessive force by its
officers;” and
4. Officer Wille’s and Officer McDaniel’s take-down and strikes to
Pharr’s body was objectively unreasonable based on the standard
announced in Graham v. Connor, 490 U.S. 386, 396 97 (1989).
(“Kirkham Report,” Dkt. #
Amended Motion to Exclude Plaintiff’s Expert Dr. George Kirkham. (Dkt. # 29.)
On January 21, 2016, Pharr filed his response. (Dkt. # 32.) On February 1, 2016,
Defendants filed their reply. (Dkt. # 43.)

9

On January 7, 2016, Defendants filed an Amended Motion to Exclude
Plaintiff’s Expert Dr. George Kirkham. (Dkt. # 29.) On January 21, 2016, Pharr
filed his response. (Dkt. # 32.) On February 1, 2016, Defendants filed their reply.
(Dkt. # 43.)
On January 29, 2016, Art Acevedo, in his official capacity as the
Chief of Police, and the City of Austin filed a Motion for Summary Judgment
seeking relief on the ground of qualified immunity. (Dkt. # 41.) On February 1,
2016, Officer Wille and Officer McDaniel filed a Motion for Summary Judgment
seeking relief on the basis of qualified immunity. (Dkt. # 42.) On February 26,
2016, Plaintiff filed his responses to both motions. (Dkt. ## 45, 46.) Acevedo and
the City and Officer Wille and Officer McDaniel filed a replies (Dkt. ## 49, 50).
LEGAL STANDARD
I.

Expert Witness Standard
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
a. the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
b. the testimony is based on sufficient facts or data;
c. the testimony is the product of reliable principles and
methods;
d. the expert has reliably applied the principles and methods to
the facts of the case.
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Fed. R. Evid. 702. This rule lays responsibility on the court to “ensure that any
and all scientific testimony or evidence admitted is not only relevant, but reliable.”
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).
“Before a district court may allow a witness to testify as an expert, it
must be assured that the proffered witness is qualified to testify by virtue of his
‘knowledge, skill, experience, training, or education.’” United States v. Cooks,
589 F.3d 173, 179 (5th Cir. 2009) (quoting Fed. R. Evid. 702). “A district court
should refuse to allow an expert witness to testify if it finds that the witness is not
qualified to testify in a particular field or on a given subject.” Id.
To determine whether testimony is reliable, the court must assess
whether the reasoning or methodology underlying the testimony is scientifically
valid. Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc).
The party seeking admission of expert testimony must show the testimony is
reliable by a preponderance of the evidence. Id. “This requires some objective,
independent validation of the expert’s methodology.” Id. “Vigorous crossexamination, presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir.
2002) (quoting Daubert, 509 U.S. at 596). Courts consider five non-exclusive
factors in making this determination: (1) whether the expert’s theory or technique
11

can be or has been tested; (2) whether the theory or technique has been subjected to
peer review and publication; (3) the known or potential rate of error of the
challenged method; (4) the existence and maintenance of standards controlling the
technique’s operation; and (5) whether the theory or technique is generally
accepted in the relevant scientific community. Daubert, 509 U.S. at 593–94. In
evaluating these factors, the court must focus on the expert’s “principles and
methodology, not on the conclusions” generated. Id. at 594.
“In addition to being reliable, expert testimony must ‘help the trier of
fact to understand the evidence or to determine a fact in issue.’” Roman v.
Western Mfg., Inc., 691 F.3d 686, 694 (5th Cir. 2012) (citing Fed. R. Evid.
702(a)). Under Rule 702, this means that the proffered expert testimony must be
relevant. Id. “Expert testimony which does not relate to any issue in the case is
not relevant, and ergo, non-helpful.” Id. (quoting Daubert, 509 U.S. at 591
(internal quotation marks and citations omitted)).
II.

Summary Judgment Standard
A court must grant summary judgment when “the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Meadaa v. K.A.P.
Enterprises, L.L.C., 756 F.3d 875, 880 (5th Cir. 2014). “Substantive law will
identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
12

248 (1986). A dispute is only genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id.
In seeking summary judgment, the moving party bears the initial
burden of demonstrating the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this burden,
the nonmoving party must come forward with specific facts that establish the
existence of a genuine issue for trial. Distribuidora Mari Jose, S.A. de C.V. v.
Transmaritime, Inc., 738 F.3d 703, 706 (5th Cir. 2013) (quoting Allen v. Rapides
Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000)). “Where the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party, there
is no genuine issue for trial.” Hillman v. Loga, 697 F.3d 299, 302 (5th Cir. 2012).
In deciding whether a fact issue has been created, “the court must
draw all reasonable inferences in favor of the nonmoving party, and it may not
make credibility determinations or weigh the evidence.” Kevin M. Ehringer
Enters. v. McData Servs. Corp., 646 F.3d 321, 326 (5th Cir. 2011) (quoting Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). However,
“[u]nsubstantiated assertions, improbable inferences, and unsupported speculation
are not sufficient to defeat a motion for summary judgment.” United States v.
Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012) (quoting Brown v. City of
Hous., 337 F.3d 539, 541 (5th Cir. 2003)).
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“Although we review evidence in the light most favorable to the nonmoving party, [the Fifth Circuit] assign[s] greater weight, even at the summary
judgment stage, to the facts evident from the video recordings taken at the scene.”
Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011). “A [court] need
not rely on plaintiff’s description of the facts where the record discredits that
description but should instead consider ‘the facts in the light depicted by the
video.’” Id. (quoting Scott v. Harris, 550 U.S. 372, 381 (2007)).
III.

Qualified Immunity
“The doctrine of qualified immunity protects government officials

from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known. Qualified immunity gives government officials breathing room to
make reasonable but mistaken judgments, and protects all but the plainly
incompetent or those who knowingly violate the law.” Thompson v. Mercer, 762

Once a defendant raises qualified immunity as a defense, the burden
shifts to the plaintiff to show a violation of a clearly established constitutional
right. Harris v. Serpas, 745 F.3d 767, 771 (5th Cir. 2014). Accordingly, when a
defendant pleads qualified immunity as an affirmative defense and moves for
summary judgment, a court must decide: “(1) whether the undisputed facts and the
14

disputed facts, accepting the plaintiff’s version of the disputed facts as true,
constitute a violation of a constitutional right; and (2) whether the defendant’s
conduct was objectively reasonable in light of clearly established law.” Carroll v.
Ellington, 800 F.3d 154, 169 (5th Cir. 2015). A court may determine these
questions in any order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). As to
the second prong, a government official’s acts are not objectively unreasonable
unless all reasonable officials in the defendant’s circumstances would have then
known that the defendant’s conduct violated the plaintiff’s rights. Carroll, 800
F.3d at 169.
DISCUSSION
I.

Dr. Kirkham as an Expert Witness
Plaintiff states that Dr. Kirkham is his “police policies and procedures

expert.” (Dkt. # 32 at 2.) However, Dr. Kirkham describes his “area of expertise
[is] in body language and [in] verbal judo.” (“Kirkham Dep. Tr.,” Dkt. 28-2, Ex. A

A. Expert Qualifications as Professor and Doctorate in Criminology
Dr. Kirkham is presently a Professor Emeritus in the College of
Criminology and Criminal Justice at Florida State University. (“Kirkham C.V.,”
Dkt. # 32, Ex. A-1.) He attained emeritus status in 1991 and admits he has not
taught any courses since then

Dr. Kirkham has
15

not specified his exact area of expertise based on his doctorate in criminology.
Further, Dr. Kirkham has testified that he has not lectured in any capacity as a
professor since 1991. Dr. Kirkham admits that since his retirement from full-time
teaching 25 years ago, he has not participated in any training on how to handle a
driving while intoxicated (“DWI”) suspect, and only stays abreast of developments
in policing by having “sit-down discussion[s]” with police officers who work for
him while off-

-down

discussions” are not sufficient to convince this Court that Dr. Kirkham has an
expertise in relevant police training and developments in the use of force over the
past 25 years.
Additionally, the Court’s review of his publication list does not
support his expert witness qualifications. Dr. Kirkham’s most recent publication is
a 2010 book on “International Sex Trafficking of Women and Children,” a topic
wholly irrelevant to his qualifications on the subject-matter of this case. The
majority of his books are about his experience as a “professor who became a cop”
and the majority of his professional papers are on issues not connected to the use of
force or traffic stops. (Kirkham C.V.) The only potentially relevant publications
that might support Dr. Kirkham’s expertise are an educational film produced in
1979 titled “Excessive Force and the Police,” a training video he produced in 1989
on “Police Human Relations: Non-Verbal Communication,” and a professional
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paper titled “Body Language and Policing,” published in 1990. (Kirkham C.V.)
Only a small fraction of Dr. Kirkham’s academic publications demonstrates any
potential expert knowledge and education about the subject matter at the heart of
this case. Due to the absence of substantial publications and research on relevant
policing issues germane to the instant litigation, the Court cannot find Dr. Kirkham
is qualified to be an expert in this case. Accordingly, the Court finds that Dr.
Kirkham’s academic achievements do not warrant certification as an expert
witness because he is not qualified to testify on the use of force during a traffic
stop. Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999) (“A district court should
refuse to allow an expert witness to testify if it finds that the witness is not
qualified to testify in a particular field or on a given subject.”)
B. Expert Qualifications as a Police Officer
In addition to being a professor, Dr. Kirkham also served as a police
officer in a part-time capacity from 1973 to 1992. (Kirkham C.V.) However, over
that 18-year period Dr. Kirkham only worked as a full-time police officer for six

police officer “for [the] specific purpose as a scientist functioning as a police
officer,” (id.

-time policing actually

equates to a total of one-and-a-half years of actual police work (id.

.

Dr. Kirkham explains that in his 18-year tenure as a police officer, he worked as “a
17

university professor all week” and was only on the beat for “one day or one night.”
(Id.
and has never instructed law enforcement officers on how to deal with individuals
suspected of DUI.
The Court finds that Dr. Kirkham is also not qualified to testify as an
expert in this case because his actual police experience amounts to no more than
one-and-a-half years, and part of his time as a police officer involved experiences
wholly irrelevant to the instant issues. Dr. Kirkham spent three months of his total
year-and-a-half of full time policing with a Department of Justice organized crime
unit where he did not handle any traffic stops, and he spent his final five years of
part-time policing in an experimental crisis intervention unit that focused solely on
body language and non-verbal communications during police intervention in
domestic violence and mental health situations.
Such experiences are irrelevant to the issue of excessive force and police conduct
during a DUI traffic stop and do not serve as a basis to qualify Dr. Kirkham as an
expert in the instant case. Absent those experiences, Dr. Kirkham has spent
approximately twelve months as a full-time patrol officer, a period of time
commensurate with the experience level of a new police officer directly out of a
training academy. While Dr. Kirkham has conducted DUI stops in the past, he
could not quantify the amount, he could not recall when he last conducted such a
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stop, and he has never been a law enforcement instructor on DUI stops, excessive
force, or any other policing activity.
To certify Dr. Kirkham’s expertise on the issue of excessive force
during a DUI traffic stop on the basis of this limited experience would abdicate this
Court’s gatekeeping function. Dr. Kirkham’s testimony indicates that his actual
police work was limited in time and scope to such an extent that his knowledge,
skill, and experience does not qualify him as an expert to testify about police
practices during a DUI stop, nor does it qualify him as an expert on use of force
methods in the 21st century. His relevant knowledge, skill, and experience would
not aid the fact-finder in determining reasonable police conduct in the situation at
issue. Indeed, this Court’s review of cases where federal district courts certify
police officers as an expert witness demonstrates a high bar that Dr. Kirkham fails
to meet. Perez v. Austin, No. A-07-CA-044 AWA, 2008 WL 1990670, at *3
(W.D. Tex. May 5, 2008) (police officer qualified as an expert because he had 25
years full-time experience, certified as a Taser instructor, had more than 3,000
hours of training, and the legal issue pertained to an officer’s use of a taser);
Houston-Hines v. Hous. Indep. Sch. Dist., No. Civ.A. H-04-3539, 2006 WL
897209, at *3 (S.D. Tex. Apr. 4, 2006) (finding a 29-year veteran police officer
unqualified as an expert witness due to his lack of experience in the type of
policing relevant to the issue at trial). Accordingly, Dr. Kirkham lacks sufficient
19

training and relevant experience to testify as an expert on the subject matter
germane to this case.
C. Reliability of Dr. Kirkham’s Opinion
Even if the Court were to qualify Dr. Kirkham as an expert witness for
policing techniques based on his academic background, his testimony would fail
the reliability prong of the Daubert analysis. Reliability means that the expert’s
testimony must be based on the “methods and procedures of science” rather than
on “subjective belief or unsupported speculation,” and “[p]roposed testimony must
be supported by appropriate validation . . .” Daubert, 509 U.S. at 590. Here, there
is no evidence in the record that Dr. Kirkham’s training video, various professional
papers, or any other publications are based on “methods and procedures of
science.” Further, nowhere in his expert report does Dr. Kirkham cite or describe
the methodology behind his opinions about Officer Wille’s interaction with Pharr.
Instead, his report merely cites other authors’ books and articles as the basis for his
opinions.
To the extent that Dr. Kirkham relies on his cumulative research from
18-years as a part-time police officer, he described that research methodology as
“watching my own behavior [while on patrol], making notes on it at the end of my
shift, observing the officers that I backed up or backed [me up] on a call. I’m
observing the body language.” (Kirkh
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finds that a methodology based on observing yourself is subject to tremendous
biases, lacks indicia of scientific precision and accuracy, and thus results in
opinions that fail to meet the reliability prong of the Federal Rules of Evidence.
Further, Dr. Kirkham has not provided independent validation of his research
methodology and there is no indication that his publications have been peer
reviewed. Accordingly, even if the Court were to qualify Dr. Kirkham as an
expert, his opinions clearly fail the reliability prong of Daubert.
This Court’s determination that Dr. Kirkham is an unqualified expert
witness whose conclusions are unreliable is not an unchartered conclusion. It is
true that Dr. Kirkham’s expert reports and affidavits have been cited for purposes
of summary judgment. However, in cases where Dr. Kirkham’s expert testimony
faced a direct Daubert challenge, this Court’s review of case law reveals that
federal district courts have summarily rejected his qualifications and opinions. See
Gandy v. Robey, No. 1:10CV65, 2011 WL 11550067, at *1 (E.D. Va. May 16,
2011) (striking Dr. Kirkham’s expert testimony from trial); Berdardi v. Village of
Sauget, Ill., Civil No. 05-898-CJP, 2008 WL 5134185, at *4 (S.D. Ill. July 21,
2008) (“Dr. Kirkham’s opinions regarding the alleged incident, [the officer’s] use
of force, and the causal connection between the Village and the alleged incident all
clearly fail to satisfy Rule 702 or Daubert and must be barred.” (emphasis in
original)); Estate of Morales, Jr. v. City of Jersey City, Civil Action No. 05-5423,
21

opinion because it is not based on reliable methods, his reports provide no
methodology, and his statements are conclusory at best); Giraldo v. City of
Hollywood, Florida, Case No. 14-61781Fla. Oct. 19, 2015) (excluding Dr. Kirkham’s expert opinion because it was
conclusory and not supported by any reliable, articulable methodology).
Accordingly, the Court finds that Dr. Kirkham is not qualified to
testify as an expert witness in this case.
II.

Qualified Immunity for Fourth Amendment Excessive Force Claims
Plaintiff asserts that Officer Wille and Officer McDaniel each used

excessive force in effecting his arrest by: (1) tackling him onto the ground; and
(2) striking him with empty handed closed fisted punches into the chest and thigh.
Officer Wille and Officer McDaniel assert qualified immunity as a defense to these
claims.
As an initial matter, at oral argument Plaintiff’s counsel focused a
significant portion of his time arguing that the video failed to show Pharr was
driving erratically. It seems that counsel contends Officer Wille lacked probable
cause to seize Pharr in the first instance. Whether or not the video supports
probable cause is irrelevant; Pharr does not challenge his initial seizure under the
Fourth Amendment to the U.S. Constitution or any state law. Indeed, Pharr
22

initially brought claims for false imprisonment and malicious prosecution against
the officers alleging lack of probable cause. (Dkt. # 64.) However, on April 12,
2016, the Court issued an order granting Plaintiff’s motion to dismiss his false
imprisonment and malicious prosecution with prejudice. (Dkt. # 68.)
Accordingly, there is no challenge to Pharr’s initial seizure before the Court and
counsel’s focus on the issue is irrelevant.
To the extent Plaintiff’s counsel focused on the quality of Pharr’s
driving in the video to call into question Officer Wille’s credibility that he
observed Pharr drive erratically, the court notes the following. First, the Court
generally “may not make credibility determinations or weigh the evidence.”
McData Servs. Corp., 646 F.3d at 326. Second, the Court finds that a large
measure of Officer Wille’s testimony about Pharr’s erratic driving occurred before
the video started to capture the subsequent events. 2 Further, the Court notes that
the video shows Pharr’s vehicle, although not crossing traffic lines, sway and veer
within those lines. Finally, the Court notes that the video indisputably establishes
that Pharr crossed over five lanes of traffic and came to a complete stop on the
wrong side of the road, facing any eventual incoming traffic.

2

The record reflects that the Dash Cam’s installed in Austin police car’s only
record the previous thirty seconds before an officer engages his or her overhead
lights and all subsequent conduct thereafter.
23

A. Whether a Constitutional Right was Violated
The first prong of qualified immunity is whether a defendant’s
conduct violated a constitutional right. Hogan v. Cunningham, 722 F.3d 725, 734
(5th Cir. 2013). To state a violation of the Fourth Amendment’s prohibition on
excessive force, a plaintiff must allege: “(1) an injury that (2) resulted directly and
only from the use of force that was excessive to the need, and that (3) the force
used was objectively unreasonable.” Id. (quoting Flores v. City of Palacios, 381
F.3d 391, 396 (5th Cir. 2004)).
1. The Injury that Directly Resulted from the Excessive
Force
“A plaintiff alleging an excessive force violation must show that she
has suffered ‘at least some injury.’” City of Palacios, 381 F.3d at 397 (quoting
Jackson v. R.E. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993)).
Pharr attests that he suffered two injuries as a direct result of the use
of force applied by Officers Wille and McDaniel: a bloody, scraped knee, and a
broken wrist. (“Pharr Aff.,” Dkt. # 45-1.) Defendants object on various grounds
as to whether Pharr has proffered sufficient evidence to prove this element:
(1) Pharr’s affidavit contradicts his sworn deposition testimony; 3 (2) Pharr has

3

Pharr gave deposition testimony that he told his medical physician that he broke
his wrist while skateboarding because he was embarrassed to tell a doctor he broke

24

failed to prove injury and causation because he has not produced an expert medical
opinion; 4 and (3) Pharr failed to complain about his broken wrist at the moment of
arrest and during his jail intake. (Dkt. #

he extent Defendants

object to Pharr’s credibility and any contradictions contained within his affidavit,
sworn testimony, and jail intake form, the Court overrules them. At summary
judgment, the Court “may not make credibility determinations or weigh the
evidence.” McData Servs. Corp., 646 F.3d at 326. Further, Defendants’ alleged
assertion that proof of injury requires expert medical opinions is not supported by
case law. See Brown, 2005 WL 473681, at *4 (finding plaintiff’s affidavit
sufficient to show injury and causation). Finally, Defendants themselves have
submitted photographic proof that Pharr suffered a bloody abrasion as a result of
the take-down. (Dkt. # 41-4.)
The Court notes that a photograph of Pharr in the backseat of Officer
Wille’s patrol car on the night of the incident clearly depicts blood and abrasions
on Pharr’s right knee. (Dkt. # 41-14.) The Court finds that Plaintiff has
sufficiently come forward with evidence that he suffered “at least some injury” as a
result of the use of force by Officers Wille and McDaniel. See Brown v. Faison,
No. Civ.A. 6:04-CV-016-C, 2005 WL 473681, at *4 (N.D. Tex. Mar. 1, 2005)

4

Pharr gave deposition testimony that his medical doctors expressed no opinion
25

(finding that a plaintiff’s affidavit stating she suffered bruising to her body as a
result of the arrest was sufficient to show some injury).
2. Whether the Use of Force was Objectively
Unreasonably
Whether the use of force was objectively unreasonable depends on the
“totality of the circumstances.” Tennessee v. Garner
Schaefer v. Whitted, 121 F.
careful attention to the facts and circumstances of each particular case, including
the severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396
(1989).
The “reasonableness” of a particular use of force “must be judged
from the perspective of a reasonable officer on the scene, rather than on the 20/20
vision of hindsight.” Id.; Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011).
Indeed, “not every push or shove, even if it may later seem unnecessary in the
peace of a judge’s chambers” constitutes a Fourth Amendment violation. Graham,
490 U.S. at 396 (citation omitted). The determination of reasonableness must take
into account the fact that “police officers are often forced to make split-second
about
the amount of force that is necessary in a particular situation.” Id. at 397.
26

The “reasonableness” inquiry is an objective one: “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.” Id. (citing Scott, 436 U.S.

). Accordingly, “an officer’s

evil intentions will not make a Fourth Amendment violation out of an objectively
reasonable use of force.” Id.
Most recently, the Supreme Court has articulated a series of nonexclusive factors that bear on the reasonableness of the force used: (1) “the
relationship between the need for the use of force and the amount of force used;”
(2) “the extent of the plaintiff’s injury”; (3) “any effort made by the officer to
temper or limit the amount of force”; (4) “the severity of the security problem at
issue”; (5) “the threat reasonably perceived by the officer”; and (6) “whether the
plaintiff was actively resisting.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473
(2015) (citing Graham, 490 U.S. at 396).
(i)

The First Use of Force: The Take-Down

Viewing the undisputed facts and the disputed facts in the light most
favorable to Pharr, the Court finds these facts material and relevant to its analysis:
(1) while acting in compliance with Officer Wille’s command, Pharr voluntarily
exited his vehicle, but after admittedly being non-compliant with Officer Wille’s
previous verbal requests; (2) Pharr held a lit cigarette in his left hand upon stepping
27

out of his vehicle; (3) Pharr took steps away from both Officer Wille and the
vehicle even though Officer Wille had taken control of his left arm; (4) Pharr did
not tense up his arm or pull it away from Officer Wille; and (5) he was
immediately tackled by Officers Wille and McDaniel.
The police officers’ conduct in taking Pharr to the ground was
objectively reasonable under the totality of the circumstances and upon
consideration of the Graham and Kingsley factors. The crime of driving while
intoxicated is a serious crime and intoxicated individuals are known to act
irrationally and without warning. See Birchfield v. North Dakota, -- U.S. --, 136
S.Ct. 2160, 2178 (2016). Here, Pharr admits to having consumed half of a pitcher
of
24).
Indeed, the Fifth Circuit has granted police officers qualified immunity where they
physically manipulated a suspected drunk driver and used a taser on him. See
Poole
Second, it was objectively reasonable for the officers to believe that
Pharr posed an immediate threat to their safety. The sector of Austin where the
traffic stop occurred was known for high-crime and violence; individuals were
known to carry weapons as well. (Wille Decl. ¶ 15; McDaniel Decl. ¶ 9.) The
officers had no way of knowing whether or not Pharr was armed, and assuming
28

that he was armed would have been objectively reasonable given the neighborhood
and time of night. Further, Pharr’s previous non-compliance with Officer Wille’s
instructions during the traffic stop makes it objectively reasonable for the officers
to have believed that some physical force may have been necessary to effectuate
compliance. Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (“Officers
may consider a suspect’s refusal to comply with instructions during a traffic stop in
assessing whether physical force is needed to effectuate the suspect’s
compliance.”) (citing Mecham v. Frazier, 500 F.3d 1200, 1205 (10th Cir. 2007)).
Pharr also held a lit cigarette in his hand when he exited the vehicle, which both he
and the officers admit could have been used as a weapon to either burn the officers
or flick ashes into an officer’s face. (Sweene
cigarette presents an officer-safety hazard . . . he could easily be burned with it . . .
the cigarette can be thrown in their face.”) Additionally, Pharr’s stepping away
from the vehicle and slightly past the two officers, despite Officer Wille having
placed his hands on Pharr’s left arm, caused Officer Wille to lose his balance and
turn his back on the vehicle where other passengers remained. Pharr’s creation of
the condition where the officers’ backs were turned to unknown persons further
increased the risk of the situation and threat to the officers. See Hogan v.
Cunningham, 722 F.3d 725, 736 (5th Cir. 2013) (granting qualified immunity

29

because officers were justified in conducting a “take-down” of plaintiff because
another unknown male was in the room who could have posed a threat).
The third Graham
-down
of Pharr was reasonable under the circumstances. As soon as Officer Wille pulled
his patrol car behind Pharr’s vehicle, Pharr opened his door; only upon Officer
Wille commanding him to close the door did Pharr comply. (Wille Dash Cam at
uch conduct makes it objectively
reasonable for an officer to believe that a suspect might have the propensity to flee,
escape, or evade arrest. Next, construing the evidence in the light most favorable
to Pharr that he did not pull his arm away from Officer Wille, the take-down was
objectively reasonable. The video dash cam unmistakeably shows that upon
exiting his vehicle and having Officer Wille take control of his left arm, Pharr
continued to take two to three steps away from both the vehicle and Officer Wille.
(Id.

The video also unambiguously shows Officer Wille

reaching with his right arm to re-gain control of Pharr because he stepped away
from the officers. (Id.) While in some circumstances such conduct by a citizen
during an interaction with police may not justify a seizure by take-down, such
benign and neutral circumstances are not present here. Instead, this case
demonstrates a classic example of a circumstance where an officer—operating in
30

the dark at 3:30am in a high-crime neighborhood where people were known to
carry weapons, after a suspect had demonstrated a pattern of verbal noncompliance, reasonable suspicion existed that the suspect was intoxicated, where
unknown individuals remained in a vehicle with darkly tinted windows, and the
suspect held a lit cigarette in his hand—had to make a split-second police
judgment. Graham, 490 U.S. at 397 (holding that the determination of
reasonableness must take into account the fact that “police officers are often forced
to make split-second judgments”). Given the totality of these circumstances, it was
objectively reasonable for the officers to conduct a take-down on Pharr after he
stepped past Officer Wille as the officer attempted to control Pharr’s left arm to
initiate a frisk. Indeed, the dash cam video demonstrates how the instant situation
was “tense, uncertain, and rapidly evolving,” Graham, 490 U.S. at 397,
demonstrating the objective reasonableness of the officers decision to take Pharr
down.
At oral argument and in his briefing, Pharr alludes to an argument that
his take-down was retribution for his non-compliance and rudeness during the
traffic stop. Pharr characterizes Officer Wille as being “angry, anxious,
aggressive, and . . . verbally abusive.” (Dkt. # 45 ¶ 6.) Any argument of the sort is
irrelevant as a matter of law. The Supreme Court held that “[a]n officer’s evil
intentions will not make a Fourth Amendment violation out of an objectively
31

reasonable use of force.” Graham, 490 U.S. at 397. Nevertheless, the video
evidence and the evidence in the record fail to establish that the use of force in this
case was wanton or gratuitous. To the contrary, the video evidence shows that
Officer Wille’s use of force was measured; he initiated force by placing his hands
on Pharr’s left arm to initiate a frisk prior to a field sobriety test, and only escalated
force upon the circumstances described above. During the escalation of force the
officers never pulled their guns nor hit the Plaintiff in the face or the head.
Further, to the extent that Pharr argues that Officer Wille created the
situation that precipitated the use of force, that contention is irrelevant. Even if a
police officer creates a dangerous situation that ultimately led to the use of force, it
is irrelevant to the reasonableness inquiry. Cass v. City of Abilene, 814 F.3d 721,
731 (5th Cir. 2016). As the Fifth Circuit has explained:
The excessive force inquiry is confined to whether the officer was in
danger at the moment of the threat that resulted in the officer’s [use of
force]. Therefore, any of the officers’ actions leading up to the
shooting are not relevant for the purposes of an excessive force
inquiry in this Circuit.
Harris v. Serpas, 745 F.3d 767, 772 (5th Cir. 2014) (internal citation omitted), cert.
denied
Accordingly, the Court finds that Officers Wille’s and McDaniel’s
take-down of Pharr was objectively reasonable under the totality of the
circumstances.
32

(ii)

The Second Use of Force: The Strikes

The second use of force occurred where the officers issued six closed
fisted strikes to Pharr’s body, immediately after they took him to the ground to
gain control of his left arm.
Viewing the evidence in the light most favorable to Pharr—evidence
which includes the dash cam video that captures much of the dispute underlying
Pharr’s claims—the Court finds that the six strikes used to arrest him were not
objectively excessive or unreasonable. This Court’s conclusion is guided by Poole,
where the Fifth Circuit granted police officers qualified immunity under the
following scenario:
It is undisputed that [the officer] repeatedly commanded Poole to turn
around and give up his right arm. It is undisputed that Poole did not
do so. Poole’s resistance was immediate and persistent. [The officer]
responded with verbal commands and attempted to grab Poole’s arm,
before resorting to a taser, which, the video reveals, he applied and
withdrew very quickly.
691 F.3d at 629. Here, the facts are aligned symmetrically, except the officers
used closed-fist strikes instead of a taser. It is undisputed that the officers
repeatedly commanded Pharr to give up his left arm. It is also undisputed that
Pharr did not do so. Indeed, Pharr admits in his deposition testimony that the
officers had to pull his left arm out from underneath him. (Pharr Dep. Tr. at
Pharr’s resistance was immediate and persistent. Officer Wille
responded with verbal commands and attempted to grab Pharr’s arm before the
33

officers resorted to closed-fist strikes, which, the video reveals, they applied and
ceased immediately upon securing Pharr’s left arm.
While on the ground, Pharr lay on his stomach with his left arm
underneath his body while Officer Wille straddled his back and Officer McDaniel
controlled his legs. (Id.

The video evidence indisputably shows

the officers issuing multiple commands to Pharr to give up his left arm, and it is
undisputed that Pharr did not release his arm because, according to him, he was
unable to release it because it was stuck underneath his body. However, instead of
tasing the suspect like in Poole, Wille issued one closed-fist strike to Pharr’s
ribcage and McDaniel issued five closed-fist strikes to his left thigh in an attempt
to make him roll over and give up his left arm. The strikes were successful and
Officer Wille was able to take control of Pharr’s left arm to effectuate the arrest.
Indeed, Pharr admits that Officer Wille had to pull his left arm out from underneath
him. (Pharr. Dep. Tr. at

No more strikes occurred after Pharr was

taken into custody.
The officers first issued multiple verbal commands and only used
physical force upon perceived non-compliance. Viewed objectively, Wille and
McDaniel responded with “measured and ascending” responses that corresponded
to Pharr’s perceived resistance. See Poole, 691 F.3d at 629 (holding that
“measured and ascending” responses demonstrates reasonable use of force)
34

(quoting Galvan v. City of San Antonio, 435 F. App’x 309, 311 (5th Cir. 2010)).
Indeed, the Fifth Circuit has found it objectively reasonable for a police officer to
apply a taser “to an unarmed, seated suspect who fails to comply with an order to
get on the ground.” Carroll, 800 F.3d at 174. Here, the police officers verbally
commanded Pharr to give up his left hand four separate times, and Pharr failed to
do so. Under Carroll, it would have been objectively reasonable for the police
officers to apply a taser to Pharr, but instead, they used a reduced level of force by
applying closed fisted strikes. Such conduct is objectively reasonable.
It is of no legal consequence that in Pharr’s version of events he did
not affirmatively hold his arm underneath his body in an attempt to resist arrest,
but that instead it was simply stuck underneath the weight of his body and Officer
Wille’s

This Court may not look back with

20/20 hindsight, but must approach the moment from the perspective of a
reasonable officer on the scene. In such case, there is no reason for the Court to
believe that a reasonable police officer in the heat of the moment would know the
relevant difference between a suspect resisting arrest by holding his arm
underneath his body versus a suspect’s body weight keeping his arm pinned
beneath his body. Such resistance caused by the latter circumstance could be
objectively viewed as affirmative resistance in the circumstances of this case.
Further, it was objectively reasonable for the officers to believe that Pharr could
35

have been using his left hand to reach for a weapon in his waistband. (Sweeney
s noted above, the traffic stop occurred in the middle
of the night in a high-crime neighborhood where individuals were known to carry
weapons. (Wille Decl. ¶ 15; McDaniel Decl. ¶ 14.) Such circumstances
demonstrate that it was reasonable for the officers to believe that Pharr posed an
immediate threat to their safety by having his left arm underneath his body. This
situation was “tense, uncertain, and rapidly evolving,” Graham, 490 U.S. at 396,
and the officers’ decision to strike Pharr to take control of his left arm was
objectively reasonable.
Accordingly, the Court finds that it was neither objectively excessive
nor clearly unreasonable for Officers Wille and McDaniel to strike Pharr six times
to get control of his left arm. See Bennett v. Britton, 609 F. App’x 11, 13 (2d Cir.
2015) (holding that a strike to the peroneal nerve in the thigh is a reasonable
application of force to effectuate an arrest); Husbands ex rel. Forde v. City of New
York
the torso did not constitute excessive force to subdue and arrest a suspect).
In sum, the majority of the Graham and Kingsley factors weigh in
favor of the reasonableness of the officers’ actions. See 490 U.S. at 396; 132 S. Ct.
at 2473. The officers limited the use of force to a controlled take-down and six
strikes which bears a tight relationship with the need to subdue Pharr given the
36

circumstances described above. In contrast, the use of a taser or baton may have
been excessive compared to the need in this case. Plaintiff’s injuries to not appear
extensive or long-lasting; a knee scrape is minor and Plaintiff has offered no
evidence that his broken wrist has contributed to more complicated medical
problems. The officers attempted to limit the amount of force by first touching
Pharr’s arm as he exited the vehicle prior to the take-down, and then while on the
ground, issuing multiple verbal commands instructing Pharr to release his arm
prior to using closed fisted strikes. The severity of the security problem was
heightened due to the hour of night, the neighborhood, and the presence of
unknown suspects in the vehicle. Finally, the officers reasonably perceived a
threat based on Pharr’s previous non-compliance during the traffic stop, his
possession of a lit cigarette in his hand as he left the vehicle, the known quantity of
violent crime in the instant neighborhood, and the fact that Pharr could have had a
weapon in his waistband.
For these reasons, the Court finds that the two instances of force used
against Pharr were objectively reasonable under the circumstances of this case.
B. Whether the Use of Force was Objectively Unreasonable in Light
of Clearly Established Law
Even if the Court is mistaken, and the Officers employed
unreasonable force, Plaintiff has not met his burden under the second prong of
qualified immunity. The second prong of a qualified immunity analysis requires a
37

court to decide “whether the right at issue was ‘clearly established’ at the time of
defendant’s alleged misconduct.” Pearson, 555 U.S. at 232. In other words, a
court must determine “whether the right was clearly established such that a
reasonable officer would know that the particular level of force used was
excessive.” Hogan, 722 F.3d at 735 (citing Saucier v. Katz, 533 U.S. 194, 202
(2001), modified, 555 U.S. at 236).
In 2012, it was clearly established that a person had a right to be free
from excessive force. Deville, 567 F.3d at 169. Still, the Supreme Court has
repeatedly told lower courts “not to define clearly established law at a high level of
generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). So, while the right to
be free from excessive force was clearly established in a general sense, “the right
to be free from the degree of force used in a given situation may not have been
clear to a reasonable officer at the scene.” Hogan, 722 F.3d at 735. To say that the
law was clearly established, a court must be able to “point to controlling
authority—or a ‘robust consensus of authority’—that defines the contours of the
right in question with a high degree of particularity.” Morgan v. Swanson, 659
Al-Kidd, 563 U.S. at 742). However,
this does not mean that “a case directly on point” is required. Al-Kidd, 563 U.S. at
741. Instead, “existing precedent must have placed the . . . constitutional question
beyond debate.” Hogan, 722 F.3d at 735 (internal citation omitted) (emphasis in
38

original). In the end, the question is whether the right is “sufficiently clear that
every reasonable officer would [have understood] that what he is doing violates
that right.” Id. (internal citations omitted).
At the time of Pharr’s arrest, the law was clearly established that the
right to make an arrest “necessarily carries with it the right to use some degree of
physical coercion.” Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008) (quoting
Graham, 490 U.S. at 396). Yet, the permissible degree of physical coercion
depends on the severity of the crime at issue, whether a suspect posed a threat to
the officer’s safety, and whether the suspect was resisting arrest or attempting to
flee. Bush, 513 F.3d at 502.
(1) The First Use of Force: The Take-Down
The Court finds that Plaintiff has not met his burden to show that
existing precedent at the time of the arrest placed beyond debate the question of
whether the take-down amounted to a constitutional violation; the cases on which
Pharr relies are distinguishable from the circumstances of this case.
Pharr first relies on Goodson v. City of Corpus Christi to show that it
is clearly established law that tackling a person constitutes excessive force where
the person does not attempt to flee. 202 F.3d 730, 740 (5th Cir. 2000). In
Goodson, the Fifth Circuit declined to extend qualified immunity to two officers on
an excessive force claim. The court concluded that because the plaintiff “suffered
39

a broken shoulder as a result of being tackled by [the officers], who lacked
reasonable suspicion to detain or frisk him and from whom he was not fleeing[,]
[a] fact issue therefore exists as to the objective reasonableness of the force used.”
Id. The driving force of this analysis, however, was the fact that the officers
lacked reasonable suspicion to detain the plaintiff or probable cause to arrest him.
Here, Plaintiff has voluntarily dismissed his malicious prosecution and false
imprisonment claims and in doing so, does not contest the reasonableness of the
seizure itself, but only disputes the amount of force used to effectuate the seizure.
Therefore, Goodson lacks analytical force to demonstrate a clearly established
right where, like here, the reasonable suspicion or probable cause to make the
seizure in the first place is not challenged. See Poole, 691 F.3d at 632 (making the
same distinction). Further, in Goodson the plaintiff did not attempt to flee, but in
this case Pharr admitted that he stepped away from his vehicle and the video
evidence shows Pharr moving past Officer Wille. While Pharr’s stepping away
from the vehicle may have been slight, his decision to open the vehicle door at the
initiation of the traffic stop indicated a propensity to flee, and thus gives a
reasonable basis to the belief that his stepping away from the vehicle was evasive
in nature.
Pharr’s reliance on Brown v. Long Beach Police Dep’t is also
First, Brown is an
40

unpublished opinion and is not precedent pursuant to Fifth Circuit rules. See 5th
Cir. R. 47.5.4. Accordingly, Plaintiff’s reliance on an opinion that lacks
precedential weight to show a clearly established law is weak at best and nonbinding at worst. Second, Brown is distinguishable on the facts. In Brown, a 300pound police officer tackled a 100-pound teenage girl causing a pelvic fracture
after she fled, posed no threat, and was suspected of the nonviolent crime of
truancy. 105 F. App’x

Here, the crime of driving while intoxicated is

more severe than truancy and Pharr posed a threat by holding his lit cigarette in his
hand and not standing still after Officer Wille took control of Pharr’s left arm.
Further, the officers did have to make a split second police judgment
accepting Pharr’s version of e

he stepped out of the vehicle at

approximately 3:30am in a high-crime neighborhood, possessed a lit cigarette in
his hand that he admits could be used as a weapon, and took steps away from the
vehicle despite the fact that Officer Wille had placed his hands on Pharr’s arm.
Accordingly, Brown does not create a clearly established right that would make it
sufficiently clear to every reasonable officer that tackling a suspect, in the
circumstances of this case, violated that right.
Accordingly, Plaintiff has failed to meet his burden of showing that
the law was sufficiently clear that every reasonable officer would have understood
that what was done to Pharr violated his right to be free from excessive force.
41

1. The Second Use of Force: The Strikes
Plaintiff cites no cases in support of his proposition that issuing six
closed-fist strikes to Pharr’s body in the circumstances of this case violated clearly
established law. However, this Court’s review of case law reveals that the law was
either clearly established that the police officers could strike Pharr to effectuate the
arrest or, in the alternative, that the law had not yet been developed, thus not
placing the officers on fair notice that they could potentially be violating the law.
See Poole, 691 F.3d at 629 (holding, four days after Pharr’s arrest, that tasing a
person who would not release his arm was a reasonable use of force); Brown v.
Rinehart, 325 F. App’x 47, 51 (3d Cir. 2009) (finding that a right knee “stun blow”
was objectively reasonable because a suspect had resisted verbal warnings and lay
on his hands to prevent being handcuffed); Husbands ex rel. Forde, 335 F. App’x
at
force to subdue and arrest a suspect); Bennett, 609 F. App’x at 13 (holding that a
strike to the peroneal nerve in the thigh is a reasonable application of force to
effectuate an arrest).
Accordingly, the Court finds that Plaintiff has failed to meet his
burden of showing that it was sufficiently clear to a reasonable officer under the
present circumstances that issuing six closed fisted strikes to effectuate the arrest
of a perceived non-compliant suspect violated the Fourth Amendment.
42

III.

State Tort Claims of Assault and Battery
Plaintiff’s state tort claims fail for three reasons: (1) the Texas Tort

Claims Act (“TTCA”) requires dismissal of all state tort claims against the police
officer, (2) the officers’ actions during the arrest were reasonable, and (3) the
officers are immune from suit.
A. The TTCA
The TTCA waives Texas’s immunity from suit in certain
circumstances. Gil Ramirez Grp., LLC v. Hous. Indep. Sch. Dist., 786 F.3d 400,
415 (5th Cir. 2015). However, “[i]f a suit is filed under this chapter against both a
governmental unit and any of its employees, the employees shall immediately be
dismissed on the filing of a motion by the governmental unit.” Tex. Civ. Prac. &
Rem. Code § 101.106(e). The Texas Supreme Court interpreted this language to
mean that “if a plaintiff brings virtually any state common law tort claim against
both a governmental unit and its employees, § 101.106(e) will allow the employee
defendants to be dismissed if the governmental unit so moves.” Bustos v. Martini
Club, Inc., 599 F.3d 458, 463 (5th Cir. 2010) (citing Mission Consol. Indep. Sch.
Dist. v. Garcia
In Bustos, the Fifth Circuit held that where state law claims against
the municipality based on negligent hiring and supervision were joined with claims
against police officer defendants for excessive force, the claims against the city
43

were “rooted in the same alleged common law violations.” 599 F.3d at 464. Thus,
the Fifth Circuit held that the district court was bound to dismiss the officers
pursuant to § 101.106(e). Here, Plaintiff has alleged excessive force claims in the
form of an intentional tort—assault and battery—while also alleging a claim
against the City of Austin for negligent hiring and supervision.5 Based on Bustos,
Plaintiff has brought the “same common law tort claim” against a governmental
unit and its employees. Accordingly, the Court must dismiss the employees
pursuant to § 101.106(e) because the City has moved for them to be dismissed.
B. Reasonableness of the Arrest
In the alternative, under Texas law, “[t]he actions of a police officer in
making an arrest necessarily involve a battery, although the conduct may not be
actionable because of a privilege.” City of Watauga v. Gordon, 434 S.W.3d 587,
594 (Tex. 2014). “A police officer is privileged to use force to the degree he
reasonably believes is necessary to make an arrest, taking care that the force used
is commensurate with the necessity.” Tex. Dep’t of Public Safety v. Petta, 44
S.W.3d 575, 579 (Tex. 2001).
Here, as explained above, Officers Wille and McDaniel used an
objectively reasonable degree of force to effectuate Pharr’s arrest. Notably, once
the need to use force ended, all parties agree that no excessive force was used once
5

Plaintiff has voluntarily dismissed the claim for negligent hiring and supervision
against the City of Austin. (Dkt. # 68.)
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Pharr was handcuffed. (See, e.g.

Therefore, the

force used was commensurate with the necessity under the circumstances. Plaintiff
has otherwise failed to establish a genuine dispute of material fact that the degree
of force used was neither reasonable nor proportionate to the need.
C. Official Immunity
Official immunity is an affirmative defense that protects state
government employees “from suit arising from the performance of their
(1) discretionary duties in (2) good faith as long as they are (3) acting within the
scope of their authority.” Rockwell v. Brown, 664 F.3d 985, 993 (5th Cir. 2011)
(quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)). Texas
courts have held that police officers are exercising discretion when performing
their duties. City of Lancaster, 883 S.W.2d at 654 (citing Dent v. City of Dallas,
729 S.W.2d 114, 117 (Tex. App. 1986) (holding officer was performing
discretionary act in deciding when and how to arrest suspect), cert. denied, 485
U.S. 977 (1988)). Texas’s law of official immunity is substantially the same as
federal immunity law, except Texas does not require a showing that the right
alleged to be been violated was not clearly established. Cantu v. Rocha, 77 F.3d

the objective legal reasonableness of the officer’s conduct.” Rockwell, 664 F.3d at
693 (internal citations omitted).
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It is undisputed that Officers Wille and McDaniel were acting within
their discretion and scope of authority in conducting a traffic stop and arrest of
Pharr. As explained above, the officers’ use of force in conducting a take-down
and applying six closed-fist strikes to effectuate an arrest was objectively
reasonable under the totality of the circumstances. Therefore, the Court finds that
the police officers have official immunity from suit on Pharr’s state law intentional
tort claims.
Accordingly, the Court will grant summary judgment in favor of
Officers Wille and McDaniel on the state tort claim of assault and battery pursuant
to the three aforementioned theories of relief.
IV.

Municipal Liability for Chief Acevedo and the City of Austin
To establish municipal liability under 42 U.S.C. § 1983, a plaintiff

must prove three elements: (1) a policymaker; (2) an official policy; and (3) a
violation of constitutional rights whose ‘moving force’ is the policy or custom.
Piotrowski v. City of Houstin, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell v.
Dep’t of Social Servs., 436 U.S. 658, 694 (1978)). It is well established Supreme
Court and Fifth Circuit law that a municipality may not be held liable if a
plaintiff’s constitutional rights were not violated. City of Los Angeles v. Heller,
475 U.S. 796, 799 (1986) (“[I]f the [police officer] inflicted no constitutional
injury on [the plaintiff], it is inconceivable that [the city] could be liable to
46

[plaintiff].”); Rios v. City of Del Rio, Tex., 444 F.3d 417, 425 (5th Cir. 2006) (“It
is facially evident that this test cannot be met if there is no underlying
constitutional violation.”) As the Supreme Court explained,
[No case] authorizes the award of damages against a municipal
corporation based on the actions of one of its officers when . . . the
officer inflicted no constitutional harm. If a person has suffered no
constitutional injury at the hands of the individual police officer, the
fact that the departmental regulations might have authorized the use of
constitutionally excessive force is quite beside the point.
Id. (emphasis in original). Since Officers Wille and McDaniel inflicted no
constitutional harm onto Pharr as explained above, Pharr does not have a viable
claim against either Chief Acevedo, in his official capacity, or the City of Austin.
Accordingly, summary judgment in favor of Chief Acevedo and the City of Austin
is proper as a matter of law.
CONCLUSION
For the reasons stated, the Court GRANTS Defendants’ Motion to
Exclude the Testimony of Dr. George Kirkham (Dkt. # 29), GRANTS Officers
Wille’s and McDaniel’s Motion for Summary Judgment (Dkt. # 42), and
GRANTS Chief Acevedo’s and the City of Austin’s Motion for Summary
Judgment (Dkt. # 41). The Court ORDERS this case DISMISSED WITH
PREJUDICE in favor of Defendants.

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IT IS SO ORDERED.
DATE: Austin, Texas, July 29, 2016.

_____________________________________
DAVID ALAN EZRA
UNITED STATES DISTRICT JUDGE

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