Sanchez et al v. Gomez et al
Filing
189
ORDER GRANTING 140 Motion for Summary Judgment; DENYING 141 Motion for Summary Judgment; DENYING 145 Motion for Summary Judgment Signed by Judge Philip R. Martinez. (dt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
CELIA SANCHEZ and
OSCAR SALAS, statutory
death beneficiaries of ERIK
EMMANUEL SALASSANCHEZ,
Plaintiffs,
v.
MANDO KENNETH GOMEZ,
ALBERTO RIVERA,
PAMELA SMITH, and the
CITY OF EL PASO, TEXAS,
Defendants.
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EP-17-CV-133-PRM
MEMORANDUM OPINION AND ORDER
On this day, the Court considered the following submissions filed
in the above-captioned cause:
Defendant Pamela Smith’s [hereinafter “Defendant Smith”]
“Motion for Summary Judgment” (ECF No. 140) [hereinafter
“Smith Motion”], filed on April 30, 2019;
Defendant Alberto Rivera’s [hereinafter “Defendant Rivera”]
“Motion for Summary Judgment” (ECF No. 141) [hereinafter
“Rivera Motion”], filed on April 30, 2019;
Defendant Mando Kenneth Gomez’s [hereinafter “Defendant
Gomez”] “Motion for Summary Judgment” (ECF No. 145)
[hereinafter “Gomez Motion”], filed on May 1, 2019;
Plaintiffs Celia Sanchez and Oscar Salas, statutory death
beneficiaries of Erik Emmanuel Salas-Sanchez’s [hereinafter
“Plaintiffs”] “Response to Defendant Smith’s Motion for
Summary Judgment” (ECF No. 170) [hereinafter “Response
to Smith”], filed on June 14, 2019;
Plaintiffs’ “Response to Defendant Rivera’s Motion for
Summary Judgment” (ECF No. 171) [hereinafter “Response
to Rivera”], filed on June 14, 2019;
Plaintiffs’ “Response to Defendant Gomez’s Motion for
Summary Judgment” (ECF No. 172) [hereinafter “Response
to Gomez”], filed on June 14, 2019;
Defendant Smith’s “Reply to Plaintiffs’ Response to
Defendant’s Motion for Summary Judgment” (ECF No. 178)
[hereinafter “Smith Reply”], filed on June 28, 2019;
Defendant Rivera’s “Reply to Plaintiffs’ Response to
Defendant’s Motion for Summary Judgment” (ECF No. 179)
[hereinafter “Rivera Reply”], filed on June 28, 2019;
Defendant Gomez’s “Reply in Support of His Motion for
Summary Judgment” (ECF No. 184) [hereinafter “Gomez
Reply”], filed on July 1, 2019; and
Plaintiffs’ “Surreply to Defendant Gomez’s Reply in Support
of His Motion for Summary Judgment” (ECF No. 187)
[hereinafter “Surreply to Gomez”], filed on July 8, 2019.
In their Motions, Defendants argue that they are entitled to
summary judgment because their actions are covered by qualified
immunity. After due consideration, the Court is of the opinion that
Defendants Gomez’s and Rivera’s Motions should be denied and
2
Defendant Smith’s Motion should be granted, for the reasons that
follow.
I.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of an officer-involved fatal shooting on April
29, 2015. Erik Sanchez-Salas was shot inside his family home and died
as a result of the shooting.1 In this section, the Court first describes the
incident at Louisa Romero’s home that gave rise to police officers
responding to a call regarding Mr. Salas-Sanchez. Then, the Court
discusses the facts surrounding the officer Defendants’ interactions
with Mr. Salas-Sanchez and his mother, Celia Sanchez, at Sanchez’s
home before officers entered her home. The Court then describes the
parties’ allegations about what happened after the officers entered the
home, including the use of force. Finally, the Court briefly describes
relevant procedural history related to this suit.
Several factual disagreements exist. For purposes of Defendants’
instant summary judgment motions, all fact issues must be resolved in
favor of Plaintiffs, the non-moving party. Nonetheless, the Court
provides background information regarding each party’s allegations.
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3
A.
Factual Background
1.
The Incident at Romero’s Home
On April 29, 2015, Romero found Mr. Salas-Sanchez inside her
home and sitting on her living room couch. Rivera Mot. Ex. E (Trial
Tr.), at 25:17–26:9. Romero recognized Mr. Salas-Sanchez as her
neighbor, but she did not know him personally and had not previously
spoken with him. Id. at 35:1–6.
During a state court proceeding related to the occurrences giving
rise to this case, Romero testified that she “was scared” when she found
Mr. Salas-Sanchez. Id. at 26:21. She also testified that Mr. SalasSanchez stood up from the couch and “started walking to where
[Romero’s] son was” and that Mr. Salas-Sanchez stared at her son while
touching his own face and legs but did not threaten her son. Id. at
27:1–19. Further, Romero did not see a weapon while Mr. SalasSanchez was present in her home and recalled that Mr. Salas-Sanchez
did not threaten anybody in the home nor appear to be looking around
the home. Id. at 28:6–9, 29:1–2.
According to Romero, she “told him on several occasions to get out
of the house,” and eventually Mr. Salas-Sanchez left. Id. at 28:20–29:9.
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After Mr. Salas-Sanchez left the home, Romero locked her door. Id. at
29:22–23. Mr. Salas-Sanchez returned to Romero’s home and
attempted to reopen her door several times before finally walking across
the street to his mother’s home, where Mr. Salas-Sanchez resided. Id.
at 30:4–18.
Romero called the police and reported the incident. Id. at 30:1–2.
Officer Rivera drove to Romero’s home and spoke with Romero. Id. at
31:22–24. Romero told Rivera that she did not want Mr. Salas-Sanchez
to return to her home but indicated that she also did not intend to press
charges. Id. at 31:2–12. Rivera then left Romero’s home and walked
across the street to Sanchez’s home. Id. at 31:13–19.
2.
Officers’ Initial Approach of Sanchez’s Home
During his deposition, Rivera testified that he saw Officer Gomez
arrive at the scene as he approached Sanchez’s home.2 Rivera Dep. Tr.3
at 45:7–12. Rivera informed Gomez that Mr. Salas-Sanchez had
Officer Smith did not arrive until after Officers Rivera and Gomez
initially approached Sanchez’s home.
2
Rivera’s deposition transcript can be found in Rivera’s Motion Exhibit
C, Smith’s Motion Exhibit C, Plaintiffs’ Appendix Exhibit B, and
Gomez’s Motion Exhibit B.
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entered a home where he was unwanted and attempted to return after
leaving and that the homeowner “didn’t want anything done other than
us going across the street and letting him know not to do that again.”
Id. at 46:3–19. Officers Rivera and Gomez then approached Sanchez’s
home. Id. at 46:22. Rivera had no intent of arresting Mr. SalasSanchez at that time. Id. at 48:1–3.
Plaintiff Sanchez was at home on April 29, 2015, along with her
daughter, Nora Salas-Sanchez, who was Mr. Salas-Sanchez’s twin
sister. See Sanchez Dep. Tr.4 at 48:5–11. Sanchez testified that, after
she went outside to respond to the officer who knocked on her door,5 the
officer asked Sanchez if Mr. Salas-Sanchez was home and whether he
was okay. Id. at 50:10–22. At this time, Mr. Salas-Sanchez was inside
the home. See id. After confirming that Mr. Salas-Sanchez was inside
the home, Sanchez returned to talk to the officers. Id. at 58:25–59:9.
Sanchez’s deposition transcript can be found in Plaintiffs’ Appendix
Exhibit D, Gomez’s Motion Exhibit C, Smith’s Motion Exhibit B, and
Rivera’s Motion Exhibit B.
4
Sanchez’s front door contains both an outer screen door and an inner
wooden door.
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3.
Mr. Salas-Sanchez’s Conduct While the Officers were
Outside the Home
The parties agree that Sanchez and the officers spoke to each
other in front of Sanchez’s home. However, the witnesses’ individual
recollections of Mr. Salas-Sanchez’s behavior and interactions with the
officers and his mother vary significantly.
a.
Defendant Gomez’s allegations
According to Defendant Gomez, after he arrived at the home,
Sanchez stepped outside to speak to the officers and told Gomez that
her son had been exhibiting behavioral issues and she believed her son
might be using drugs or having a mental breakdown. Pl. App. Ex. H
(Sealed Report), at 8. Gomez reported that Mr. Salas-Sanchez then
came to the door and said, “[W]hat do you want [f**kers]?” Pl. App. Ex.
K (Sealed Report), at 1. Then, after being asked to step outside, Mr.
Salas-Sanchez replied, “[N]o way [f**ker] you know who I am, all of you
know who I am.” Id. Then, Sanchez told her son to “shut up” and go
back inside, and her son closed the door. Id. at 2.
Gomez reported that Mr. Salas-Sanchez reopened the door and
told Gomez that he would take Gomez’s gun and shoot him with it. Id.
Mr. Salas-Sanchez proceeded to open and close the door “six to eight
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times” while the officers spoke with his mother. Pl. App. Ex. H (Sealed
Report), at 13. During one of the times that he opened the door, Mr.
Salas-Sanchez formed his hand into a “gun-like shape, pointing at [the
officers], and laughing” while stating he would kill the officers. Pl. App.
Ex. K (Sealed Report), at 2.
Later, Gomez observed “some type of long heavy object hanging
from inside [Mr. Salas-Sanchez’s] front sweater pocket as he opened the
door.” Id. Gomez told Rivera to watch out for the object. Id.
Gomez stated that he then asked Sanchez to control Mr. SalasSanchez and to bring Mr. Salas-Sanchez back to his room. Id. Gomez
also told Sanchez that her son had made a gun-like gesture with his
hand. Pl. App. Ex. H (Sealed Report), at 18. Then, the mother begged
Mr. Salas-Sanchez to go to his room and began to push her son toward
his room. Pl. App. Ex. K (Sealed Report), at 2. Gomez recalled that
Sanchez began to “pound and hit” her son, who “proceeded to push the
mother back.” Pl. App. Ex. H (Sealed Report), at 18.
b.
Defendant Rivera’s allegations
According to Rivera, while the officers were talking to Sanchez,
Mr. Salas-Sanchez yelled at the officers “to leave, that he didn’t
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[f**king] want us there, to come to the door because he was going to
take our weapons and kill us.” Rivera Dep. Tr. at 61:23–25. After
closing the door, Mr. Salas-Sanchez then “opened the door and said
‘[f**k] you’ and he gets into a stance with a black object in his hands, in
a shooting manner.” Id. at 64:5–8. Rivera perceived the black object to
be a gun. Id. at 67:6–68:2. Mr. Salas-Sanchez later reopened the door,
assumed a shooting stance, and threatened the officers; his mother then
ran towards Mr. Salas-Sanchez and “blocked” the officers and
“shield[ed]” her son. Id. at 73:12–19.
Further, Rivera testified that Mr. Salas-Sanchez then reopened
the door and walked outside the home and that Sanchez then “kind of
hugged him and was pushing him inside the house.” Id. at 75:1–14.
Mr. Salas-Sanchez brandished the black object while Sanchez was
hugging her son; Rivera pointed his service weapon at Mr. SalasSanchez during this time but did not shoot the weapon because “the
mother’s right on top of him.” Id. at 76:7–77:17. Rivera reported that
he ordered Mr. Salas-Sanchez to drop the unknown black object but did
not recall any other officer giving any verbal commands. Pl. App. Ex. J
(Sealed Report), at 5.
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Additionally, Rivera testified that, after Mr. Salas-Sanchez
returned inside the home, Mr. Salas-Sanchez and his mother began
“playing tug-o-war . . . with the door” as Mr. Salas-Sanchez attempted
to open it and the mother held it shut. Rivera Dep. Tr. at 84:25–85:6.
Rivera reported that Mr. Salas-Sanchez moved the curtains near
the front window, yelling that he would kill the officers, and that
Sanchez told her son to stop and to close the curtains. Pl. App. Ex. G
(Sealed Report), at 2. After closing the curtain, Mr. Salas-Sanchez then
allegedly sat with his back against the door frame and began to rock
back in forth while holding the black object in his hand. Rivera Dep. Tr.
at 91:6–12. A few seconds later, Mr. Salas-Sanchez got up and again
told the officers they were going to die and then began to walk toward
the officers outside the home. Id. at 96:20–14. Sanchez pushed her son
back into the home with both hands on his chest.6 Id. at 97:19–98:17.
Rivera believed that Mr. Salas-Sanchez was “angry” and not “in
the right state of mind.” Id. at 101:5–12. Thus, Rivera determined that
In a written report, Rivera recalled the mother’s interaction somewhat
differently and stated that she pushed her son back into the house “with
her back” and used her hands to block Gomez from getting to her son.
Pl. App. Ex. J (Sealed Report), at 7.
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an emergency detention order (“EDO”)7 would be appropriate based on
Mr. Salas-Sanchez’s actions coupled with his mother’s prior statement
that she had tried to get her son help. Id.
c.
Defendant Smith’s allegations
Smith asserts that, after she arrived at the home, Sanchez
appeared to be upset and told the officers that her son had not been
acting like himself and that Sanchez did not know what to do in
response. Smith Dep. Tr. at 101:2–102:17. Smith stated that she
arrived at the home while Gomez and Rivera were talking with Sanchez
and that she greeted the mother after arriving. Id. at 99:4–100:19.8
Smith testified that, from behind the home’s screen door, Mr.
Salas-Sanchez threatened that he would take the officers’ weapons and
kill them. Id. at 109:6–9. Mr. Salas-Sanchez opened the door and was
holding a large black object. Id. at 111:6–13. Further, Smith perceived
the object to be similar in size to a handgun. Id. at 113:11–14. Mr.
An EDO is a mechanism under Texas law that allows officers to detain
a person who is perceived to need mental health treatment in specified
circumstances. See generally TEX. HEALTH & SAFETY CODE ANN. §
573.001.
7
However, Sanchez does not recall seeing Smith until after Mr. SalasSanchez had been shot. Sanchez Dep. Tr. at 68:1–12.
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Salas-Sanchez then lifted the black object before closing the door. Id. at
115:10–14. After Mr. Salas-Sanchez appeared at the door, Sanchez was
screaming at her son to go inside and telling him to stop acting in this
manner. Id. at 118:16–23. Then, Mr. Salas-Sanchez continued to yell
at the officers from inside the screen door. Id. at 119:16–23.
Mr. Salas-Sanchez reopened the door, sat down along the
doorframe, and moved “in a rocking motion” with his arms near his feet
and ankles. Id. at 122:1–14. After a few seconds of sitting in the
doorway, Mr. Salas-Sanchez quickly stood up and closed the door. Id. at
123:21–124:3. Mr. Salas-Sanchez appeared in a window and then
quickly reopened the wooden door. Id. at 129:6–19.
Smith did not tell Mr. Salas-Sanchez to put down the object or ask
what he was holding in his hands; she also did not recall hearing
another officer ask Mr. Salas-Sanchez about the object or direct that he
drop it. Id. at 140:13–141:21.
Then, Mr. Salas-Sanchez and Sanchez were both inside the home;
Mr. Salas-Sanchez was angry and shouting at his mother, but Smith
did not hear him threaten his mother while he was shouting. Id. at
148:1–5, 149:7–14. Based on Mr. Salas-Sanchez’s actions, Smith stated
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that she believed an EDO would be appropriate and quickly agreed with
the other officers to effectuate an EDO. See id. at 148:6–9. According to
Smith, after the officers decided to effectuate the EDO, they entered the
home. Id. at 170:17–25.
d.
Plaintiff Sanchez’s allegations
Sanchez agrees with Defendants that Mr. Salas-Sanchez yelled to
the officers outside while the officers were speaking with her. Sanchez
Dep. Tr. at 60:1–13. However, Sanchez disagrees with Defendants
about what Mr. Salas-Sanchez said to the officers. Sanchez recalled
that Mr. Salas-Sanchez told the officers “to leave, that they have no
business being there, that there’s no reason for them to be there.” Id. at
60:1–13. Further, Sanchez stated that Mr. Salas-Sanchez “insulted” the
officers by calling them “dogs” but that Mr. Salas-Sanchez never
challenged the officers to enter the home, never threatened the officers,
and never said that he would kill the officers. Id. at 64:7–12, 68:13–25.
Additionally, Sanchez stated that Mr. Salas-Sanchez never opened
and closed the door and that she never had to hold the door shut to
prevent Mr. Salas-Sanchez from opening it. Id. at 65:1–15. Sanchez
did not recall pushing her son back inside the house or physically
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touching him in any way; she recalled only moving her hands to
indicate that he should go back down the home’s hallway. Id. at 65:20–
66:25. Sanchez did not see her son pick up or hold any object in his
hands. Id. at 70:3–6.
e.
Witness Ms. Salas-Sanchez’s allegations
According to Ms. Salas-Sanchez, her brother called the officers
“dogs” but never cursed at or threatened the officers. Salas-Sanchez
Dep. Tr.9 at 110:1–20. Further, she never saw her mother attempt to
push or hit her brother, never saw her brother attempt to push or hit
her mother, and never saw her mother and brother disagree about her
brother going back inside the home. Id. at 60:21–4.
4.
Officers’ Entry into the Home and Use of Force
The officers entered Sanchez’s home without a warrant or consent.
The parties do not dispute that Defendant Rivera deployed his taser at
Mr. Salas-Sanchez. The taser hit but did not immobilize Mr. SalasSanchez. Additionally, the parties agree that Defendant Gomez shot
his service weapon. The injuries from the gunshots resulted in Mr.
Ms. Salas-Sanchez’s deposition transcript can be found at Plaintiffs’
Appendix Exhibit E, Smith’s Motion Exhibit D, Rivera’s Motion Exhibit
D, and Gomez’s Reply Exhibit C.
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Salas-Sanchez’s death.
However, individual recollections differ regarding what happened
while the officers entered the home and what occurred leading up to
Rivera’s and Gomez’s uses of force. Below, the Court describes each
witness’s allegations.
a.
Defendant Gomez’s allegations
According to Defendant Gomez, he entered the home “because [he]
observed [Mr. Salas-Sanchez]’s mother attempting to push [Mr. SalasSanchez] into the hallway with both of her hands.” Pl. App. Ex. H
(Sealed Report), at 19. Mr. Salas-Sanchez and his mother were
“assaulting each other as they [were] both struggling and pushing each
other.” Id.
After entering the home, Gomez observed that Mr. Salas-Sanchez
was holding an object. According to Gomez,
As he held [the object] over his mother’s head with both
hands, [Mr. Salas-Sanchez] held it like a normal person would
hold a gun. Officer Rivera advised me that the weapon was
indeed a gun and at that time I truly believed that I was about
to get shot and going to die. It was not until I stepped a few
steps to the right into the living room area that I observed the
weapon was a machete type knife without a handle.
Id. at 22. Additionally, Gomez reported that, while the mother was
15
pushing her son toward his room, Mr. Salas-Sanchez “produced a long
knife-like weapon from inside his sweater pocket and pointed it at us
over his mother’s head as if he was holding a gun at a sideways angle.”
Pl. App. Ex. K (Sealed Report), at 2.
Gomez and Rivera “both gave [Mr. Salas-Sanchez] loud and clear
verbal commands” to put down the weapon. Pl. App. Ex. H (Sealed
Report), at 26. Gomez stated that he told Ms. Sanchez-Salas to go in
another room with her baby, but that Ms. Salas-Sanchez declined to
leave the room and responded, “don’t worry it’s not a gun.” Id.; Pl. App.
Ex. K (Sealed Report), at 2. Gomez responded to her, “I don’t care he
better put whatever he has in his hand down right now.” Pl. App. Ex. K
(Sealed Report), at 2. Gomez asserted that Mr. Salas-Sanchez’s mother
and sister were also telling him to put down the weapon. Id.
Specifically, Sanchez attempted to take away her son’s weapon and
yelled at him to calm down and let go of the object. Pl. App. Ex. H
(Sealed Report), at 23.
Gomez reported that the officers then proceeded further into the
residence, and Gomez told Sanchez, “get out of the way senora watch
out.” Pl. App. Ex. K (Sealed Report), at 3. Sanchez moved out of the
16
way and stood by Ms. Salas-Sanchez. Id. Then, Mr. Salas-Sanchez held
a knife, giggled, and said, “I’m going to kill you [expletive].” Id. Rivera
then deployed the taser, but it was ineffective. Id.
Gomez alleged that Mr. Salas-Sanchez then came “out of the
kitchen with his arm raised up, pointing [a knife] directly at me.” Id.
Gomez then slipped on a rug and fired his weapon four times while
falling backward onto the couch. Pl. App. Ex. H (Sealed Report), at 33.
Mr. Salas-Sanchez was then lying on the ground—after the gunshots
had hit his body—and Gomez holstered his weapon and summoned
medical assistance to the scene. Pl. App. Ex. K (Sealed Report), at 3.
b.
Defendant Rivera’s allegations
According to Rivera, while both he and Mr. Salas-Sanchez were
outside the home, he pulled out his taser and informed Gomez he had
his taser ready. Rivera Dep. Tr. at 104:4–9. Mr. Salas-Sanchez saw the
taser’s small red light and “turn[ed] around and trie[d] to go back inside
the house.” Id. at 104:9–13. Additionally, Rivera testified that the
taser takes five seconds to deploy; therefore, while the five seconds were
“counting down,” Mr. Salas-Sanchez had “time to walk inside his
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residence.”10 Id. at 104:14–21. By the time the taser deployed, Mr.
Salas-Sanchez was inside the home. Id. at 112:1–3.
After deploying, the taser probes “hooked up onto . . . [Mr. SalasSanchez’s] sweater” but because the sweater was “overlarge,” the taser
probe did not make contact with Mr. Salas-Sanchez’s skin and “didn’t
give him the full effect of him actually falling to the ground with it.” Id.
at 112:6–11. Rivera further stated that Mr. Salas-Sanchez “did feel a
little bit of [the taser’s effect] . . . so he yelled out an ‘ah,’ like – like a
grunt. But he kept on running towards the back of the house.” Id. at
112:12–15. The taser wires stayed connected to Mr. Salas-Sanchez. Id.
at 115:21–22.
Mr. Salas-Sanchez ran into the dining room area when the taser’s
probe hit him and then continued into the kitchen. Id. at 115:15-19,
117:23–25. Mr. Salas-Sanchez then moved toward the hallway while
inside the kitchen, and Rivera saw a black object in Mr. Salas-Sanchez’s
hands that was pointed down toward the ground. Id. at 118:22–119:9.
During his deposition, Rivera testified that he pulled the taser’s
trigger while still outside the residence. However, in a prior written
report, Rivera stated that he first “walked in after [Mr. Salas-Sanchez]
who was walking toward the back of the kitchen” and then pulled the
taser’s trigger. Pl. App. Ex. G (Sealed Report), at 2.
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Rivera retreated with the intent to use the taser again if Mr.
Salas-Sanchez moved in his direction. Id. at 119:17–22, 121:2–5. The
other officers were out of his line of sight when Rivera heard gunshots.
Id. at 121:6–20. Rivera turned and saw Mr. Salas-Sanchez “turn at the
same time” and get hit. Id. at 123:1–3.
After Mr. Salas-Sanchez was handcuffed and while the officers
waited for medical assistance, Rivera did not search for an object that
might have been the weapon Mr. Salas-Sanchez was holding. Id. at
159:2–7. Additionally, although Rivera believed Mr. Salas-Sanchez had
been holding a pistol, Rivera testified that he never saw an object found
at the scene that he believed to be the alleged weapon. Id. at 159:8–16.
c.
Defendant Smith’s allegations
According to Smith, she entered the home and saw Sanchez
pushing her son back into the home’s hallway. Smith Dep. Tr. at 178:2–
15. She then saw Ms. Salas-Sanchez walk through the hallway holding
her young son, and Smith asked Ms. Salas-Sanchez to go outside. Id. at
179:1–21. Smith recalled that Ms. Salas-Sanchez exited the door to go
outside. Id. at 179:20–21. Then, Smith asked Sanchez to leave the
home and walked Sanchez outside the home. Id. at 180:7–16. After
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escorting Sanchez out of the home, Smith stayed inside and joined the
officers. Id. at 181:25–182:5.
Smith saw Mr. Salas-Sanchez running into the kitchen and away
from the officers. Id. at 189:14–20. Then, Smith heard the sound a
taser makes before deploying and heard Rivera tell the other officers
that he was going to tase Mr. Sanchez-Salas. Id. at 190:8–11. She then
heard Mr. Salas-Sanchez make a “grunt” noise which indicated that the
taser probes had made contact. Id. at 190:13–16. Mr. Salas-Sanchez
continued to run, and Smith was unable to see his hands or ascertain
whether he was holding any object. Id. at 195:5–13.
According to Smith, Mr. Salas-Sanchez ran into the kitchen and
Smith lost sight of him; then, Mr. Salas-Sanchez “jumped back out” into
sight and was facing the officers. Id. at 200:5–11. Mr. Salas-Sanchez
began moving toward Gomez while clasping an object that appeared to
be a weapon11; he then leapt toward Gomez. Id. at 200:14–20, 204:24–
205:5.
Smith testified that the object Mr. Salas-Sanchez was holding while
moving toward Gomez appeared to be a different object than the one
Mr. Salas-Sanchez had previously held while standing at the door
frame. Id. at 208:12–18.
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Smith alleges that she then tripped while stepping backwards and
Gomez stepped backwards as well. Id. at 205:10–17. While falling
backwards, Smith saw flashes from Gomez’s firearm. Id. at 205:17–20.
Smith stated, “the last that I saw was of [Mr. Salas-Sanchez] moving
forward with – with his hands out.” Id. at 205:25–206:1. Smith could
not recall how many shots she heard inside the home. Id. at 209:18–23.
Additionally, Smith asserted that she did not remember hearing either
Rivera or Gomez give any commands or warnings to Mr. Salas-Sanchez
before using force. Id. at 209:1–14.
d.
Witness Ms. Salas-Sanchez’s allegations
Ms. Salas-Sanchez testified that her mother was standing in front
of the door when an officer “told her Ma’am, move to the side, and he
pushed her with his hand to that side.” Salas-Sanchez Dep. Tr. at
60:13–20. When the officers entered the home, both she and her
brother were standing near the front door. Id. at 61:5–18. Ms. SalasSanchez only saw the two male officers—Rivera and Gomez—enter the
home. Id. at 61:23–62:12.
According to Ms. Salas-Sanchez, an officer asked Mr. SalasSanchez what was in his hands and Mr. Salas-Sanchez then put
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something12 on the table and then raised his hands as he walked. Id. at
63:6–20. Ms. Salas-Sanchez also stated that her brother placed his
hands on the table but was not holding anything. Id. at 64:22–24.
Based on the testimony provided, it is unclear whether Ms. SalasSanchez recalls that her brother placed an object or his hands on the
table. After placing an object (or his hands) on the table, Mr. SalasSanchez then walked away from the table with his hands raised. Id. at
64:5–6. Mr. Salas-Sanchez then turned around and “ended up facing
forward . . . towards the officer” while leaving his hands in the air. Id.
at 66:10–23. Eventually, by the time he was facing the officer, his
hands were down. Id. at 67:10–13.
Ms. Salas-Sanchez testified that she was standing in the living
room and then saw that “the shorter officer shot [Mr. Salas-Sanchez]
with the electricity” while her brother was in the kitchen near the
refrigerator. Id. at 67:18–68:7. Her brother “complained” by making a
sound in response but did not say words nor fall down. Id. at 69:1–11.
Ms. Salas-Sanchez did not focus on what her brother placed on the
table and is unsure of what the object might have been. Id. at 65:14–19.
She also testified that she had not “noticed or looked for anything in his
hands” until he placed an object on the table. Id. at 66:3–5.
12
22
Then, he continued walking toward his room. Id. at 69:13–18. Ms.
Salas-Sanchez could not see her brother after he began to walk down
the hall; the officer then fired shots. Id. at 70:1–22.
e.
Plaintiff Sanchez’s allegations
Sanchez states that, while standing with her back to the screen
door, she was “pushe[d] to the side” by the officer who first entered her
home and that another officer entered immediately after. Sanchez Dep.
Tr. at 75:2–17. Sanchez did not see the officers open the door but
assumed that an officer opened the door to enter the home because she
recalled leaving the door closed. Id. at 75:2–17. According to Sanchez,
when the officers entered her home, her son was inside the home, but
she could not see her son and was unsure exactly where he was inside
the home. Id. at 75:18–76:8.
Sanchez testified that, after the officers entered the home, she saw
“a blue light pass through the dining room towards the kitchen.” Id. at
76:17–21. Sanchez saw her son “around the refrigerator, more or less”
and saw the blue light crossing in his direction. Id. at 78:22–79:7.
Sanchez was unsure of what emitted the blue light when she saw it, but
later—after talking to her daughter—Sanchez came to believe that the
23
light was from the taser. Id. at 79:1–23.
Sanchez then saw Mr. Salas-Sanchez standing near the
refrigerator and heard a very loud noise. Id. at 88:19–22. After hearing
the loud noise, Sanchez remembers putting her hands to her head,
turning, seeing something red or yellow cross by, and eventually trying
to go outside. Id. at 89:1–19.
5.
Mr. Salas-Sanchez’s Autopsy Report
An autopsy confirmed that Mr. Salas-Sanchez died as the result of
multiple gunshot wounds. Pl. App. Ex. M (Autopsy Report). Mr. SalasSanchez suffered three gunshot wounds, each on the backside of his
body: one bullet entered his right back, one entered his left back, and
one entered his left buttock. Id. at 3–4. Additionally, Mr. SalasSanchez had “two superficial red abrasions” on his right elbow. Id. at 5.
B.
Relevant Procedural Background
Plaintiffs filed their “Original Complaint” (ECF No. 1) on April 28,
2017, and a “First Amended Complaint” (ECF No. 17) on June 15, 2017.
In their First Amended Complaint, Plaintiffs allege that the City of El
24
Paso has a custom, policy, or practice of using excessive force.13
Additionally, Plaintiffs allege that the officers involved in the incident
deprived Mr. Salas-Sanchez of his constitutional rights in violation of
42 U.S.C. § 1983 because
Defendants Gomez, Smith, and Rivera, acting under color of
state law, deprived [Mr. Salas-Sanchez] and Plaintiffs of their
rights under the Fourth and Fourteenth Amendments to the
United States Constitution by intentionally entering
Plaintiffs’ home without warrant or probable cause, and
under no exigent circumstances. Defendants Gomez and
Rivera, acting under color of state law, deprived [Mr. SalasSanchez] of his rights under the Fourth Amendment and
Fourteenth Amendment of the United States Constitution by
intentionally using an objectively unreasonable and excessive
amount of force.
First. Am. Compl. 22–23.
At an earlier stage in the litigation, Defendants filed motions
to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
alleging that they should be entitled to qualified immunity. See
Mem. Op. & Order Denying Def. Mando Kenneth Gomez’s, Alberto
Rovera’s, and Pamela Smith’s Mots. To Dismiss, ECF No. 45,
Sept. 1, 2017. The Court denied the motions to dismiss. Id.
The City has also filed a motion for summary judgment, which
remains pending on this case’s docket.
13
25
Now, in their instant Motions, Defendants again argue that
they are entitled to qualified immunity and, accordingly, seek
summary judgment in their favor.
II.
LEGAL STANDARDS
A.
Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56(a), a court “shall
grant summary judgment if 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.” A genuine dispute will be found to exist “if the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Rogers v. Bromac Title Servs., LLC, 755 F.3d 347,
350 (5th Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). Pursuant to Federal Rule of Civil Procedure 56(c),
“the party moving for summary judgment bears the initial burden of . . .
‘identifying those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.’” Norman v. Apache
Corp., 19 F.3d 1017, 1023 (5th Cir. 1994) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)).
“Rule 56(c) mandates the entry of summary judgment . . . upon
26
motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial.” Celotex
Corp., 477 U.S. at 322. Where this is the case, “there can be ‘no genuine
issue as to any material fact,’ since complete failure of proof concerning
an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.” Id. at 323 (quoting Rule 56(c)). In
adjudicating a motion for summary judgment, a court “consider[s]
evidence in the record in the light most favorable to the non-moving
party and draw[s] all reasonable inferences in favor of that party.”
Bluebonnet Hotel Ventures, LLC v. Wells Fargo Bank, N.A., 754 F.3d
272, 276 (5th Cir. 2014).
B.
Qualified Immunity
“The doctrine of qualified immunity protects government officials
from civil damages liability when their actions could reasonably have
been believed to be legal.” Whitley v. Hanna, 726 F.3d 631, 638 (5th
Cir. 2013) (quoting Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir.
2011)). “[A] plaintiff seeking to overcome qualified immunity must
show: (1) that the official violated a statutory or constitutional right,
27
and (2) that the right was clearly established at the time of the
challenged conduct.” Id. (citing Ashcroft, 131 S. Ct. 2080). “A right is
clearly established when ‘it would be clear to a reasonable officer that
his conduct was unlawful in the situation he confronted.’” Ramirez v.
Martinez, 716 F.3d 369, 375 (5th Cir. 2013) (citing Jones v. Lowndes
Cty., Miss., 678 F.3d 344, 351 (5th Cir. 2012)). “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.’” Messerschmidt v. Millender, 565
U.S. 535, 546 (2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743
(2011)).
III. ANALYSIS
A.
Defendants’ Entry into the Home
Plaintiffs allege that Defendants entered Sanchez’s home without
consent, a warrant, or a valid exception to the warrant requirement.
Accordingly, Plaintiffs contend that the officers’ entry into the home
violated the Fourth Amendment.
While Defendants concede that they had no warrant or consent,
they argue that their conduct was permissible based on the exigent
28
circumstances exception to the warrant requirement. As discussed
below, the Court determines that fact issues exist regarding whether
Defendants’ entry was justified. However, the Court determines that
Plaintiffs cannot establish that Defendant Smith’s entry into the home
caused an injury and concludes that summary judgment should be
granted in Smith’s favor.
1.
Fact issues exist regarding whether a reasonable
officer would believe that entry was permissible
because of exigent circumstances.
“A warrantless intrusion into an individual’s home is
presumptively unreasonable unless the person consents or probable
cause and exigent circumstances justify the encroachment.” United
States v. Jones, 239 F.3d 716, 719 (5th Cir. 2001). “In order to enter a
person’s residence, even under exigent circumstances, law enforcement
first must have probable cause that contraband is inside or that an
illegal act is taking place.” United States v. Newman, 472 F.3d 233, 236
(5th Cir. 2006). Accordingly, in order to demonstrate that their
warrantless entry into the home was reasonable, Defendants must
establish that they had probable cause to believe a felony was occurring
and that exigent circumstances existed.
29
For the reasons discussed below, the Court concludes that fact
issues exist regarding both probable cause and exigent circumstances.
Drawing reasonable inferences in favor of Plaintiffs, the Court
determines that Defendants are not entitled to qualified immunity.
a.
Whether probable cause existed.
In this section, the Court considers whether Officers Gomez,
Rivera, and Smith had probable cause to believe that Mr. SalasSanchez had committed a felony. Defendants aver that a reasonable
officer would believe that Mr. Salas-Sanchez committed burglary of
Romero’s habitation, aggravated assault, and obstruction.
Plaintiffs argue that material issues of fact exist regarding
whether the officers had probable cause. In part, Plaintiffs buttress
their position with officer testimony supporting that the officers did not
actually believe that Mr. Salas-Sanchez had committed a crime and
they did not intend to arrest Mr. Salas-Sanchez. See, e.g., Resp. to
Rivera 6.14 However, the inquiry regarding whether an officer would
have probable cause is objective and not subjective. That is, courts
For example, Smith stated that she did not believe that Mr. SalasSanchez committed a felony. Additionally, Rivera testified that he did
not intend to arrest Mr. Salas-Sanchez for any crime.
14
30
consider whether a hypothetical reasonable officer would believe the
person committed a felony and do not focus on the officer’s perspective
at the time. See Messerschmidt, 565 U.S. at 565 (“The operative
question in this case, therefore, is whether . . . a reasonable officer
nonetheless could have believed he had probable cause to seek a
warrant.”). Accordingly, the officers’ testimony about their actual
opinions is not dispositive of whether probable cause existed. Below,
the Court considers whether a reasonable officer would have objectively
believed there was probable cause that a felony had occurred.
i.
Burglary of a Habitation
Texas law provides that a person commits the offense of burglary
if the person:
(1) enters a habitation, or a building (or any portion of a
building) not then open to the public, with intent to commit a
felony, theft, or an assault; or
(2) remains concealed, with intent to commit a felony, theft,
or an assault, in a building or habitation; or
(3) enters a building or habitation and commits or attempts
to commit a felony, theft, or an assault.
TEX. PENAL CODE § 30.02(a). In arguing that the officers reasonably
believed that Mr. Salas-Sanchez had committed a felony, Defendants
focus on testimony demonstrating that Romero—the neighbor whose
31
home Mr. Salas-Sanchez had entered—expressed that she felt afraid
when she found Mr. Salas-Sanchez in her home and when he attempted
to reenter her home. See, e.g., Gomez Mot. 15–16. Thus, Defendants
argue that “this was not a simple property crime.” Smith Mot. 12.
However, Defendants fail to proffer evidence tending to establish
that Mr. Salas-Sanchez had the intent to commit a felony inside the
habitation. Notably, the elements of burglary under Texas law do not
focus on the fear of a home’s occupant. Instead, the elements require
that the offender intend to commit a felony, theft, or assault inside the
residence. A fact issue exists regarding whether the officers had
probable cause to believe that Mr. Salas-Sanchez committed burglary.
During his deposition, Defendant Rivera stated that he believed a
burglary had occurred when he left Romero’s home. Rivera Mot. Ex. C
(Rivera Dep. Tr.), at 44:1–2. However, a jury could determine that
Rivera’s conclusion was not reasonable in light of the Texas statute.
Taken in the light most favorable to Plaintiffs, the facts do not
establish probable cause that a burglary happened. A jury may
conclude that Mr. Salas-Sanchez entered Romero’s home, and Romero
felt afraid because a person had come into her home uninvited.
32
However, she did not witness him attempt or threaten to harm anyone,
steal anything from her home, or otherwise commit a felony. In fact,
Romero testified that she did not see any type of weapon, that Mr.
Salas-Sanchez did not threaten anybody, and that Salas-Sanchez did
not appear to be looking around the home.15 Additionally, while
Romero did not want Mr. Salas-Sanchez to return to her home, she also
did not attempt to press charges. Based on these facts, a jury could
conclude that no reasonable officer would determine that Mr. SalasSanchez intended to commit a felony, theft, or assault within the home.
To be clear, officers are not required to make perfect conclusions
based on the available facts; they only need to make reasonable ones.
Defendant Rivera testified that, after speaking with Romero, his
understanding was that Mr. Salas-Sanchez had opened Romero’s
refrigerator and closed it without taking anything. Rivera Mot. Ex. C
(Rivera Dep. Tr.), at 41:12–13. Thus, Rivera concluded Mr. SalasSanchez was “obviously looking for something.” Id. at 44:18–19.
However, even if Salas-Sanchez looked inside the refrigerator, a jury
may find that his behavior was consistent with his other bizarre
conduct but not consistent with an intent to steal. Further, Romero
testified that Mr. Salas-Sanchez did not look around the home. And
reports written by Rivera and Gomez indicate that they understood that
Mr. Salas-Sanchez entered Romero’s kitchen before leaving her home,
but the reports do not reflect that he ever looked inside the refrigerator.
See Pl. App. Ex. G (Sealed Report), at 1; Ex. H (Sealed Report), at 3. A
jury may disbelieve Rivera’s contention altogether in light of the
contradictory testimony.
15
33
Courts are hesitant to second-guess officers’ determinations by
substituting another reasonable interpretation of the facts with the
benefit of hindsight. Messerschmidt, 565 U.S. at 565 (“Qualified
immunity analysis does not direct courts to play the role of crime scene
investigators, second-guessing police officers’ determinations . . . .
Indeed, we have warned courts against asking ‘whether another
reasonable, or more reasonable, interpretation of the events can be
constructed five years after the fact.’” (quoting Hunter v. Bryant, 502
U.S. 224, 228 (1991) (per curiam)). However, while an officer’s
determinations need not be perfect, the Court is unaware of—and
Defendants do not cite—precedent supporting that a reasonable officer
could have probable cause to believe that a person committed a felony if
the facts do not support an inference that each element of the felony
occurred.
In sum, if Mr. Salas-Sanchez did not look around the home and
did not otherwise show any intent to commit a felony, theft, or assault
inside the home, then a reasonable officer would not believe that a
felony occurred. Because the facts taken in the light most favorable to
Plaintiff do not suggest that Mr. Salas-Sanchez demonstrated the
34
required intent to commit burglary, the Court declines to find that the
officers had probable cause to believe he had committed felony burglary
pursuant to Texas Penal Code § 30.02.
ii.
Aggravated Assault
Defendants contend that they had probable cause to believe Mr.
Salas-Sanchez committed a felony pursuant to Texas Penal Code §§
22.02(a)(2) and (b)(2)(B). Rivera Mot. 11, Smith Mot. 13, Gomez Mot.
16. Texas Penal Code § 20.01(a)(2) provides that a person commits an
assault if he “intentionally or knowingly threatens another with
imminent bodily injury.” This underlying offense is a misdemeanor.16
See id. § 20.01(c). Section 22.02(a)(2) provides that assaults committed
by a person who “uses or exhibits a deadly weapon during the
Defendants Rivera and Smith assert that, if a threat is directed
against a public servant, then it becomes a felony pursuant to Texas
Penal Code § 22.01(b)(1). Rivera Mot. 11, Smith Mot. 13. However,
Defendants Rivera and Smith mischaracterize the statute. Texas Penal
Code § 22.01(b)(1) makes only violations of subsection (a)(1)—which
refers to an offense that “causes bodily injury to another”—a felony
when committed against an officer. On the other hand, threats are
covered by subsection (a)(2). Section 22.01(b)(1) does not make
violations of subsection (a)(2) a felony. In this case, Defendants allege
that Mr. Salas-Sanchez threatened the officers, but they do not allege
that he caused them bodily injury. Accordingly, a reasonable officer
would not believe that Mr. Salas-Sanchez’s threats were a felony
pursuant to Texas Penal Code § 22.01(b)(1).
16
35
commission of the assault” are felony aggravated assaults.
Additionally, an aggravated assault pursuant to § 20.01(a)(2)—that is, a
threat of imminent bodily injury while the person uses or exhibits a
weapon—is a felony of the first degree when committed “against a
person the actor knows is a public servant while the public servant is
lawfully discharging an official duty.” TEX. PENAL CODE §
22.02(b)(2)(B).
Taken all together, Defendants must show that they had probable
cause to believe that Mr. Salas-Sanchez was making threats of
imminent bodily injury while using or exhibiting a deadly weapon. If
the threats were directed at public servants, then the felony becomes
one in the first degree.
As a threshold matter, a fact issue exists regarding whether Mr.
Salas-Sanchez threatened the officers with imminent bodily injury.
While Defendants recall that Mr. Salas-Sanchez verbally threatened
them, Plaintiffs testified that he did not threaten the officers. Sanchez
and Ms. Salas-Sanchez recall that Mr. Salas-Sanchez called the officers
“dogs” and told them to leave but do not recall him ever threatening the
officers. Accordingly, there is a disputed issue of fact regarding whether
36
Mr. Salas-Sanchez committed the predicate misdemeanor offense of
threatening a person with imminent bodily injury, which is
incorporated into the felony offense of aggravated assault.
Moreover, fact issues exist regarding whether Mr. Salas-Sanchez
brandished a deadly weapon. Although Defendants testified that they
observed Mr. Salas-Sanchez holding a black object which they believed
to be a weapon while assuming a “shooting stance,” Sanchez and Ms.
Salas-Sanchez asserted that they never saw any object in Mr. SalasSanchez’s hands while the officers were outside the home.
Defendants aver that Plaintiffs’ proffered testimony is insufficient
to create a fact issue. Specifically, Defendants believe that, because
Sanchez did not recall everything that occurred during the evening and
because Ms. Salas-Sanchez was not at the front door throughout the
entirety of the interaction, a fact question should not exist. See, e.g.,
Rivera Mot. 4. The Court disagrees. The clarity and accuracy of the
witnesses’ recollection of the night’s events may affect their credibility.
However, courts do not make credibility determinations when reviewing
summary judgment evidence. Accordingly, the Court declines to decide
whether the witnesses’ recollections reflect full or accurate memories of
37
the incident.
In addition, although Rivera reported that he had ordered Mr.
Salas-Sanchez to drop the object, Smith testified that she did not
acknowledge the object nor hear another officer do so. A jury could
reasonably determine that nobody ever acknowledged any object in Mr.
Salas-Sanchez’s hands. This determination might support an inference
that Mr. Salas-Sanchez was not holding any object that the officers
reasonably believed could be a deadly weapon. If Mr. Salas-Sanchez
had no such object in his hands, then no reasonable officer would
believe that Mr. Salas-Sanchez was committing assault with a deadly
weapon. Accordingly, the Court concludes that a jury could find that a
reasonable officer would not have probable cause to believe that Mr.
Salas-Sanchez committed the felony of aggravated assault.
iii.
Obstruction
Further, Defendant Gomez argues that he had probable cause to
believe that Mr. Salas-Sanchez committed a felony pursuant to Texas
Penal Code § 36.06(a)(1)(A), which provides that a person commits the
offense of obstruction or retaliation if he “intentionally or knowingly . . .
threatens to harm another by an unlawful act . . . on account of the
38
service or status of another as a . . . public servant . . . .” As stated,
conflicting testimony exists regarding whether Mr. Salas-Sanchez
threatened the officers. If the factfinder were to determine that Mr.
Salas-Sanchez did not threaten the officers, then the factfinder would
also conclude that Defendants did not have probable cause to believe a
felony pursuant to Texas Penal Code § 36.06(a)(1)(A) occurred.
In sum, the parties’ varied recollections make it extraordinarily
difficult to ascertain what actually happened during the events leading
up to the officers’ entry into the home. Importantly, the Court is not
tasked with determining which version of the story is most accurate.
Resolving the factual disputes in Plaintiffs’ favor, a reasonable jury
could believe that Mr. Salas-Sanchez did not threaten the officers and
was not holding any object. Accordingly, viewed in a light favorable to
Plaintiffs, the facts indicate that the officers did not have probable
cause to enter the home.
b.
Whether an exigent circumstance existed to ensure
officer or occupant safety.
Next, the Court considers whether exigent circumstances existed.
In the Fifth Circuit, whether exigent circumstances exist “is essentially
a factual determination, there is no set formula for determining when
39
exigent circumstances may justify a warrantless entry.” United States
v. Newman, 472 F.3d 233, 237 (5th Cir. 2006) (United States v. Blount,
123 F.3d 831, 837 (5th Cir. 1997)). Though not an exhaustive list, some
factors courts may consider include:
(1) the degree of urgency involved and amount of time
necessary to obtain a warrant; (2) a reasonable belief that
contraband is about to be removed; (3) the possibility of
danger to police officers guarding the site of contraband while
a search warrant is sought; (4) information indicating the
contraband’s possessors know police are on their trail; and (5)
the ready destructibility of the contraband.17
United States v. Vasquez, 953 F.2d 176, 180 (5th Cir. 1992).
The risk of harm to persons—including officers—may give rise to
an exigency. “Immediate safety risks to police officers and others are
exigent circumstances that may excuse a warrantless entry into a
residence.” Gates v. Texas Dep’t of Protective & Regulatory Servs., 537
F.3d 404, 421 (5th Cir. 2008). Regarding officer safety, exigent
circumstances will be found “if the agents’ fear for their safety was
reasonable.” Newman, 472 F.3d at 237–38.
Because Defendants allege that they had probable cause to enter the
home in order to effectuate an arrest—but not because they sought to
search for or preserve evidence—any factors regarding the destruction
of contraband are inapplicable here.
17
40
Providing emergency aid can be an exigency. Brigham City v.
Stuart, 547 U.S. 398, 403 (2006) (“[L]aw enforcement officers may enter
a home without a warrant to render emergency assistance to an injured
occupant or to protect an occupant from imminent injury.”). The
emergency aid doctrine is narrow and applies when there is a “need to
assist persons who are seriously injured or threatened with injury.”
Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (determining
that an exigent circumstance existed when officers observed an
altercation taking place inside a home). When offering aid, officers may
intervene proactively when it becomes clear that violence is occurring,
as “[t]he role of a peace officer includes preventing violence and
restoring order, not simply rendering first aid to casualties.” Id. at 406.
To determine whether an officer would reasonably believe that
emergency aid is needed, courts consider whether the circumstances
objectively justify the action—the individual officer’s subjective
motivation is irrelevant. Id. at 404–05.
Similarly, Texas law recognizes provides that, “as part of the
police officer’s community caretaking functions to protect and preserve
life and prevent substantial injury, an officer may enter and search a
41
private residence without a warrant for the limited purpose of serving
those functions when it is objectively reasonable.” Laney v. State, 117
S.W.3d 854, 855 (Tex. Crim. App. 2003).
In their Motions, Defendants argue that an exigent circumstance
existed because Mr. Salas-Sanchez was holding an object which they
believed to be a deadly weapon and the object, coupled with Mr. SalasSanchez’s threats, posed a significant risk of danger to both the officers
and Mr. Salas-Sanchez’s mother. See, e.g., Rivera Mot. 12.
As the Court has already detailed, fact issues exist regarding
whether Mr. Salas-Sanchez threatened the officers and whether a
reasonable officer would have believed he was holding a weapon.
Specifically, Sanchez and Ms. Salas-Sanchez testified that they did not
hear Mr. Salas-Sanchez threaten the officers. Additionally, Sanchez
and Ms. Salas-Sanchez testified that he was not holding an object. If a
jury believes that Mr. Salas-Sanchez had no weapon and did not
threaten the officers, then the jury may conclude that the officers could
not have had a reasonable fear of imminent injury.
Defendant Gomez argues that Ms. Salas-Sanchez’s testimony
regarding whether her brother placed an object down on the table is
42
“conflicting and inconsistent.” Gomez Resp. 4–6. Thus, Gomez appears
to argue that the Court should not accord weight to her testimony.
Gomez relies on Cross v. FFP Operating Partners, LP, 73 F. App’x 46
(5th Cir. 2003), to support his contention that the Court may determine
that Ms. Salas-Sanchez’s testimony is not credible. In Cross, plaintiffs
brought a claim against their employer and—after a bench trial—the
district court determined that the witnesses who testified at trial
provided inconsistent testimony and were motivated by a dislike for
their former supervisor. Id. at *2. Thus, the judge, acting as factfinder,
determined the testimony was not credible. Id. The Fifth Circuit held
that the district court’s factual findings were not clearly erroneous. Id.
The procedural differences between this case and Cross are
obvious. Here, the Court considers summary judgment briefing; the
Court is not presiding over a bench trial. During a bench trial, the
judge sits as the factfinder. Accordingly, bench trials—like the one in
Cross—function as an exception to the general rule that “[c]redibility
determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a
judge . . . .” Anderson, 477 U.S. at 255. In this case, the Court does not
43
sit as the finder of fact. Therefore, the Court will not disregard Ms.
Salas-Sanchez’s testimony even if some internal inconsistencies exist.
Moreover, genuine fact issues exist regarding whether a
reasonable officer could believe that Mr. Salas-Sanchez posed a threat
to his mother. For example, Ms. Salas-Sanchez testified that she never
saw her brother push or hit her mother. And Officer Smith never heard
Mr. Salas-Sanchez threaten his mother. A sufficient factual basis exists
for a jury to conclude that no reasonable officer would believe any injury
to Sanchez was imminent.
Defendants make clear that they disagree with Plaintiffs’
characterization of the facts. For example, Gomez avers that “Plaintiffs
downplay the intense situation with which the officers were faced on
the night of April 29, 2015. . . . The officers were clearly reasonable in
feeling that they faced an imminent threat to themselves and others
which justified a warrantless entry on the basis of exigency.” Gomez
Resp. 8. However, the Court is of the opinion that Plaintiffs’ testimony
does not simply “downplay” threats of violence. To the contrary,
Plaintiffs tell a wholly different story than Defendants—one where
threats of imminent violence never occurred. Plaintiffs argue that they
44
never saw an object in Mr. Salas-Sanchez’s hands; that he did not
threaten to kill the officers; and that he did not threaten, push, or hit
his mother.
In sum, if Mr. Salas-Sanchez did not threaten the officers and was
not holding an object that the officers reasonably believed was a
weapon, then a jury may determine that there was no immediate threat
to officer safety. Similarly, if he did not assault or threaten his mother,
then a jury could conclude that there was no threat to the safety of the
home’s occupants.
c.
The officers’ decision to effectuate an EDO does
not support a warrantless entry based on the
“emergency doctrine.”
Additionally, the officers appear to argue that an EDO—a
mechanism under Texas law which allows law enforcement officers to
detain a mentally ill person without a warrant in order to transport the
person to a psychiatric facility—is the type of exigency that would
trigger the emergency doctrine. Texas law provides:
A peace officer, without a warrant, may take a person into
custody if the officer:
(1) has reason to believe and does believe that:
(A) the person is a person with mental illness; and
(B) because of that mental illness there is a
substantial risk of serious harm to the person
45
or to others unless the person is immediately
restrained; and
(2) believes that there is not sufficient time to obtain a
warrant before taking the person into custody.
TEX. HEALTH & SAFETY CODE ANN. § 573.001. This statute is
incorporated into the El Paso Police Department’s policies. See Gomez
Mot. 17 (quoting El Paso Police Operations Procedures Manual).
Notably, the Texas statute does not authorize warrantless entry
into a home. Courts are hesitant to determine that a mechanism
authorizing arrest will also authorize warrantless entry into a home.
See Steagald v. United States, 451 U.S. 204, 213 (1981) (“In the absence
of exigent circumstances, we have consistently held that such judicially
untested determinations are not reliable enough to justify an entry into
a person’s home to arrest him without a warrant.”). For these reasons,
the Court concludes that an officer’s belief that an EDO should be
effectuated does not necessarily justify entry into the home.
Accordingly, the officers’ testimony that they thought an EDO was
appropriate does not affect the Court’s analysis of whether there was an
exigency. That is, even if a home’s occupant exhibits mental health
symptoms, the inquiry regarding whether officers may enter the home
stays the same: Without a warrant, an exigency must exist.
46
To be sure, situations may exist that justify an EDO and establish
exigent circumstances. Since the Texas statute provides that an EDO
may be issued when there is “a substantial risk of serious harm to the
person or to others unless the person is immediately restrained,” a
person who will be the subject of an EDO may also show an imminent
risk of harm to a home’s occupant that would give rise to an exigency.
Here, however, fact issues exist regarding whether Mr. SalasSanchez showed a risk of imminent harm. As discussed, a reasonable
jury could conclude that Mr. Salas-Sanchez did not threaten to harm
the officers or his mother. Thus, even if Mr. Salas-Sanchez exhibited
mental health symptoms and the officers were aware that his mother
was concerned about his mental health, the Court’s determination
regarding exigent circumstances remains undisturbed.
In sum, resolving factual disputes in favor of Plaintiffs, the Court
declines to determine that the officers’ entry was justified based on the
exigent circumstances exception to the warrant requirement.
2.
Plaintiffs have not established that Smith’s entry
caused an injury.
In her Motion, Smith argues that Plaintiffs refute that she
entered their home and, accordingly, that Plaintiffs’ summary judgment
47
evidence fails to establish a violation of their Fourth and Fourteenth
Amendment rights. Smith Mot. 9–10. Moreover, Smith asserts that
her presence caused no injury. Id. at 17. The Court determines that a
fact issue exists regarding whether Smith entered the home.
Nonetheless, the Court determines that summary judgment should be
granted in Smith’s favor because her actions were not a proximate
cause of Mr. Salas-Sanchez’s injuries.
a.
A fact issue exists regarding whether Smith
entered the home.
First, Smith posits that the summary judgment evidence shows
that Plaintiffs refute that she entered the home. Smith Mot. 9. To be
sure, Sanchez and Ms. Salas-Sanchez testified that they did not see the
female officer enter the home (the female officer is, undisputedly,
Smith). Accordingly, Smith asserts that, because the Plaintiffs testified
that they did not see Smith in the home, “neither Plaintiff can offer any
competent summary judgment evidence as to what Officer Smith
observed or heard.” Smith Resp. 2.
However, Plaintiffs are not limited to offering their own deposition
testimony as evidence. Plaintiffs are certainly welcome to rely on
Smith’s own testimony. Specifically, Smith testified that she entered
48
the home, escorted Sanchez outside of the home, and then reentered the
home. Taken in the light most favorable to Plaintiffs, a reasonable jury
could find that Smith entered the home.
b.
Mr. Salas-Sanchez’s death was not a foreseeable
consequence of Smith’s entry into the home.
Nonetheless, even if Smith entered the home, Plaintiffs have not
shown that Smith’s entry caused any type of injury to Plaintiffs.
According to Plaintiffs, a genuine fact issue exists regarding “whether
[Mr. Salas-Sanchez’s] shooting death was a foreseeable consequence of
Smith’s unlawful entry.” Resp. to Smith 21. The Court disagrees.
When evaluating whether an injury was foreseeable, courts must
“identify the foreseeable risks associated with the relevant
constitutional violation (the warrantless entry)” and determine whether
that precise constitutional violation caused an injury. Cty. of Los
Angeles, Calif. v. Mendez, 137 S. Ct. 1539, 1549 (2017). In doing so,
courts should avoid relying on “only a murky causal link between the
warrantless entry and the injuries attributed to it.” Id. Importantly,
when determining whether an officer is immune from suit, courts
“evaluate each officer’s actions separately, to the extent possible.” Poole
v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
49
Here, there is at most a murky link between Smith’s entry and
Mr. Salas-Sanchez’s death (more likely, there is no link). Plaintiffs do
not allege that Smith ever drew any weapon, either prior to entering
the home or while in the home. See Pl. App. Ex. A (Factual App.), at
13–14. Instead, Plaintiffs emphasize that “two of the officers had
weapons drawn” and argue that it should have been foreseeable to
Smith that her entry would result in a shooting. Resp. to Smith 23.
However, Smith is only legally responsible for her own actions. Thus,
even if it was foreseeable that Smith’s colleagues’ entry into the home
with their weapons drawn could result in an injury, Smith cannot be
shoehorned into responsibility for the other officers’ constitutional torts.
Additionally, Plaintiffs note that, though the Fifth Circuit has not
addressed the issue, sister circuits have determined that unlawful entry
can be a proximate cause of personal injury or death. Resp. to Smith
22. However, the cases that Plaintiff relies on—Attocknie and Bodine—
fail to support that any link existed between Smith’s entry and Mr.
Salas-Sanchez’s injuries.
In Attocknie, the Tenth Circuit determined that a jury may
determine that an officer’s unlawful entry was the proximate cause of
50
the plaintiff’s injuries when the officer “sped to the front door of the
house with gun drawn, pushed the door open, and fired his gun” at the
plaintiff. Attocknie v. Smith, 798 F.3d 1252, 1254–58 (10th Cir. 2015)
(emphasis added). Here, Smith did not enter the home with her gun
drawn. Because Smith may not be held liable for her colleagues’
actions, Attocknie does little to support Plaintiffs claims.
Further, in Bodine, the Third Circuit held that the district court
erred in determining that “since the officers had entered the house
illegally, any use of force was unlawful, and the officers were liable for
all of the harm that ensued.” Bodine v. Warwick, 72 F.3d 393, 399 (3d
Cir. 1995). Instead, “even if the entry was unlawful, this would mean,
under basic principles of tort law, that the troopers would be liable for
the harm ‘proximately’ or ‘legally’ caused by their tortious conduct.” Id.
The Third Circuit emphasized that
the illegal entry and unlawful force claims must be kept
separate. Thus, if the troopers are found to have entered
[Plaintiff’s] residence illegally, they should be held liable for
the harm proximately caused by the illegal entry. Similarly,
if the troopers are found to have used unlawful force, they
should be held liable for the harm proximately caused by this
use of force. The harm proximately caused by these two torts
may overlap, but the two claims should not be conflated.
Id. at 400–01. Here, by seeking to hold Smith liable for Gomez’s and
51
Rivera’s uses of force, Plaintiffs conflate their constitutional claims as
well as the individual Defendants’ actions. Thus, Bodine does not
support that a fact issue exists regarding whether Smith’s conduct
caused Plaintiffs’ injuries. To the contrary, Bodine highlights why
Smith should not be held liable.
In sum, Mr. Salas-Sanchez’s death was not a foreseeable
consequence of Smith’s illegal entry. Smith did not enter the home with
her weapon drawn or otherwise act in a way that would suggest her
entry was connected to any use of force. Accordingly, no causal
connection exists. Moreover, any constitutional violations committed by
Officers Gomez or Rivera may not be imputed to Smith.
Having determined that Smith’s actions should be evaluated
individually and that her actions did not proximately cause an injury,
the Court is of the opinion that no constitutional violation occurred.
Accordingly, summary judgment should be granted in Smith’s favor.
B.
Use of Force
Plaintiffs allege that Defendants Rivera and Gomez unlawfully
seized Mr. Salas-Sanchez because Rivera and Gomez used excessive
force in violation of the Fourth Amendment when they fired their taser
52
and firearm, respectively.
“[A] plaintiff seeking to overcome qualified immunity must show:
(1) that the official violated a statutory or constitutional right, and (2)
that the right was clearly established at the time of the challenged
conduct.” Whitley, 726 F.3d at 638.
To satisfy the first prong—that the official violated a right—when
alleging “a Fourth Amendment excessive-force claim, ‘a plaintiff must
first show that she was seized.18 Next she must show that she suffered
(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.’” Carroll v. Ellington, 800 F.3d 154, 173 (5th
Cir. 2015) (quoting Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir.
2004)). “Excessive force claims are necessarily fact-intensive; whether
the force used is ‘excessive’ or ‘unreasonable’ depends on ‘the facts and
When deadly force is intentionally used against a person, the person
has been seized pursuant to the Fourth Amendment. See Terry v. Ohio,
392 U.S. 1, 20 n.16 (1968) (stating that when an officer “has in some
way restrained the liberty of a citizen” either “by means of physical
force or show of authority,” a seizure has occurred). Accordingly, Mr.
Salas-Sanchez was seized.
18
53
circumstances of each particular case.’” 19 Deville v. Marcantel, 567 F.3d
156, 167 (5th Cir. 2009) (quoting 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 with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.
Regarding the second prong—that the right infringed was a
clearly established constitutional right—the Fifth Circuit has
recognized that people have “a clearly established right to be free from
excessive force” and that the amount of force an officer may use
“depend[s] on the severity of the crime at issue, whether the suspect
posed a threat to the officer’s safety, and whether the suspect was
resisting arrest or attempting to flee.” Deville, 567 F.3d at 169 (quoting
Tarver v. City of Edna, 410 F.3d 745, 753–54 (5th Cir. 2005), and then
Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008)).
To be sure, claims regarding an excessive of force are grounded in the
Fourth Amendment protection against unreasonable seizures and not in
the substantive due process protection against conscious-shocking
behavior. See, e.g., Mason, 806 F.3d at 278. Defendants contend that,
to the extent that Plaintiffs allege that Defendants’ use of force violated
rights secured by the Fourteenth Amendment rights rather than the
Fourth Amendment, their claims should not proceed. See, e.g., Smith
Mot. 20. The Court agrees and analyzes Plaintiffs’ claims pursuant to
the Fourth Amendment reasonableness standard.
19
54
For a right to be clearly established, the doctrine establishing the
right may not be overly generalized. See Plumhoff v. Rickard, 572 U.S.
765, 778–79 (2014) (“[A] defendant cannot be said to have violated a
clearly established right unless the right’s contours were sufficiently
definite that any reasonable official in the defendant’s shoes would have
understood that he was violating it.”). Accordingly, “[w]here
constitutional guidelines seem inapplicable or too remote, it does not
suffice for a court simply to state that an officer may not use
unreasonable and excessive force [and] deny qualified immunity.”
Kisela v. Hughes, 138 S.Ct. 1148, 1153 (2018).
“[S]pecificity is especially important in the Fourth Amendment
context, where the Court has recognized that it is sometimes difficult
for an officer to determine how the relevant legal doctrine, here
excessive force, will apply to the factual situation the officer confronts.”
Mullenix v. Luna, 136 S.Ct. 305, 308 (2015). A right may be clearly
established without “a case directly on point,” but “existing precedent
must have placed the statutory or constitutional question beyond
debate.” Hanks v. Rogers, 853 F.3d 738, 746–47 (5th Cir. 2017) (quoting
White v. Pauly, 137 S.Ct. 548, 551 (2017)). “[O]utside of ‘an obvious
55
case,’ the law is only ‘clearly established’ if a prior case exists ‘where an
officer acting under similar circumstances . . . was held to have violated
the Fourth Amendment.’” Id. (quoting White, 137 S.Ct. at 551).
Though rare, courts have occasionally recognized circumstances where
an officer’s conduct is so “clearly prohibit[ed]” by precedent that the
constitutional “violation is obvious” even if no directly on-point case law
exists. Hope v. Pelzer, 536 U.S. 730, 738 (2002) (determining that
shackling inmates to a hitching post, without bathroom breaks and
while exposed to the sun for a seven-hour period, was a clear violation
of the Eighth Amendment).
1.
Defendant Rivera’s Use of His Taser
a.
Whether a constitutional violation occurred
To establish a constitutional violation, Plaintiffs must show that
(1) Mr. Salas-Sanchez suffered an injury, (2) the injury resulted directly
from the use of force that was excessive to the need, and (3) the use of
force was objectively unreasonable. Carroll, 800 F.3d at 173.
i.
Whether Mr. Salas-Sanchez suffered an
injury
Although a plaintiff need not show significant injury to establish
that excessive force was used, the plaintiff must show that the injury
56
was more than de minimis. Tarver v. City of Edna, 410 F.3d 745, 752
(5th Cir. 2005). In the Fifth Circuit, “certain injuries are so slight that
they will never satisfy the injury element”—for example, handcuffing
too tightly does not constitute excessive force. Flores, 381 F.3d at 397–
98 (citing Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001)).
Whether an injury is de minimis “must be evaluated in the context in
which the force was deployed.” Glenn, 242 F.3d at 314. Thus, an injury
may be de minimis in one circumstance but actionable in another.
In some contexts, courts have held that marks left by a taser are
not an actionable injury. For example, a district court determined that
red marks caused by a taser which neither required medical treatment
nor caused subsequent pain were de minimis “[w]hen considered in the
context in which the Taser was used.” Stanley v. City of Baytown, Tex.,
No. CIV.A. H-04-2106, 2005 WL 2757370, at *6 (S.D. Tex. Oct. 25,
2005). In Stanley, the plaintiff began kicking and punching emergency
medical technicians and firemen who were unable to subdue the
plaintiff’s violent outburst while treating him for a seizure. Id. at *2.
Then, after police officers arrived, the officers warned the plaintiff that
they may use their taser if his aggressive behavior did not change. Id.
57
at *3. After the plaintiff was unable to calm down, the officer used his
taser. Id. The plaintiff “became cooperative and appeared to regain full
control of his mental faculties.” Id. In that situation, the court
concluded that the plaintiff’s injury was de minimis.
Here, Mr. Salas-Sanchez’s autopsy report reflected that he had
“two superficial20 red abrasions” on his right elbow.21 Additionally,
several witnesses recalled that Mr. Salas-Sanchez made some type of
noise—possibly a grunting sound—when the taser probes connected to
him, which indicated that Mr. Salas-Sanchez experienced some
immediate pain. Mr. Salas-Sanchez subsequently died as a result of
The Ninth Circuit has determined that “puncture wounds through
the skin” caused by taser prongs “are classified as ‘superficial’ rather
than as ‘serious’ or ‘life-threatening,’” but that such a classification
“does not mean that such wounds are insignificant.” Bryan v.
MacPherson, 630 F.3d 805, 813–14 (9th Cir. 2010).
20
Plaintiffs assert that “[t]aser injuries that cause bruises, strains, and
contusions constitute more than a de minimis injury.” Resp. to Rivera
18. Plaintiffs rely on Hanks v. Rogers, 853 F.3d 738 (5th Cir. 2017).
However, the facts in Hanks were quite different than those at issue
here. In Hanks, during a traffic stop, the officer “administered a blow to
Hanks’s upper back or neck . . . [which] forced Hanks’s upper body onto
the trunk of his vehicle.” 853 F.3d at 743. As a result, the plaintiff
suffered “contusions, acute strains, and bruised ribs.” Id. at
745. Notably, although the officer had drawn his taser, it appears the
officer did not actually use his taser. See generally id. at 742–43. Thus,
Hanks has little to do with the case at hand.
21
58
gunshot wounds. Therefore, it is unclear whether the abrasions
inflicted by the taser prongs would have required further treatment or
caused subsequent pain if Mr. Salas-Sanchez had lived.
Further, context matters. Resolving factual disputes in favor of
Plaintiffs, a jury could determine that: Mr. Salas-Sanchez had insulted
the officers and asked them to leave but not threatened them. Then,
after the officers entered the home, Mr. Salas-Sanchez walked away
from them. Additionally, he was not holding any object or refusing to
comply with any commands when—without warning—Defendant
Rivera deployed his taser against Mr. Salas-Sanchez.
Drawing inferences in favor of Plaintiffs, the Court concludes that
the abrasions inflicted by the taser are not de minimis in this context
and that Plaintiffs have alleged an actionable injury.
ii.
Whether the injury directly resulted from
excessive and unreasonable force22
Moreover, the jury may infer that the red abrasions were a direct
result of the taser shock. Witnesses agree that the taser probes made
In this section, the Court analyzes both the second and third
elements—whether the force was excessive to the need and whether the
force was objectively unreasonable—together.
22
59
contact with Mr. Salas-Sanchez. Rivera testified that the taser probes
attached to Mr. Salas-Sanchez’s sweater and stayed attached to the
sweater. Based on this testimony, a jury may conclude that the
abrasions on Mr. Salas-Sanchez’s right elbow were caused by the taser.
Further, a jury may conclude that the force was excessive and
unreasonable. Drawing inferences in Plaintiffs’ favor, the jury might
believe: Mr. Salas-Sanchez was not under arrest for a crime and was in
his own home. The officers believed he might be exhibiting symptoms of
mental illness. He raised his empty hands so the officers could see
them, and he walked away from the officers. If Mr. Salas-Sanchez was
neither resisting nor threatening the officers, then no force was
necessary. The amount of force used—a taser shock—would be
excessive to the nonexistent need. Similarly, if Rivera used a taser
against a person who exhibited signs of mental illness but who was not
under arrest, resisting authority, or posing a threat to the officers, then
a jury could determine that the force was objectively unreasonable.
In conclusion, a reasonable jury may conclude that Mr. SalasSanchez suffered an actionable injury that was directly caused by an
excessive and objectively unreasonable use of force.
60
b.
Whether the constitutional rights that Rivera
violated were clearly established
Accordingly, the Court must next consider whether Rivera
violated “clearly established” constitutional law. A right is clearly
established if “existing precedent [has] placed the statutory or
constitutional question beyond debate.” Hanks, 853 F.3d at 746–47.
First, it is clearly established that the amount of force an officer
may use “depends on the severity of the crime at issue, whether the
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
(citing Graham, 490 U.S. at 396). Resolving facts in Plaintiffs’ favor,
the officers did not intend to arrest Mr. Salas-Sanchez for a crime—
instead, they intended to detain him with the intent of seeking mental
health treatment. Moreover, Mr. Salas-Sanchez had not threatened the
officers with harm. Mr. Salas-Sanchez was walking away from the
officers, but he was not actively resisting arrest. Further, since he was
enclosed inside a home and walking toward his bedroom, Mr. SalasSanchez was not credibly attempting to flee. Thus, the use of a taser
violated clearly established law because it was objectively unreasonable
in light of the factors set out in Graham.
61
Additionally, Rivera violated more precise formulations of clearly
established law within the Fifth Circuit. Specifically, it is clearly
established that officers may not use a taser against a person who is not
resisting the officers’ authority. In Carroll, the Fifth Circuit held that it
is clearly established that “once a suspect has been handcuffed and
subdued, and is no longer resisting, an officer’s subsequent use of force
is excessive.”23 Carroll, 800 F.3d at 177. If officers may not use a taser
on a person who has stopped resisting arrest, then it is equally clear
that the officer may not use a taser against a person who never resisted
arrest in the first place. Similarly, in Newman, the Fifth Circuit
determined that it was “objectively unreasonable” for officers to
“immediately resort[] to taser and nightstick without attempting to use
physical skill, negotiation, or even commands” when the plaintiff
alleged that he was tased “in response to nothing more than an off-color
joke” but had not resisted the officers’ authority or refused to comply
with their commands. Newman v. Guedry, 703 F.3d 757, 761–63 (5th
Cir. 2012). Both Carroll and Newman demonstrate that tasing a person
Carroll considered a claim based on events that occurred in 2006.
The events giving rise to this case occurred on April 29, 2015. Thus,
any rights that were clearly established in 2006 predate this case.
23
62
who is not resisting an officer’s authority is objectively unreasonable in
light of clearly established law.
Here, the facts most favorable to Plaintiff depict that Mr. SalasSanchez insulted the officers but did not threaten them. Moreover,
Rivera did not give commands to Mr. Salas-Sanchez. Instead, Mr.
Salas-Sanchez—who was not under arrest for any crime—was tased
while walking away from officers inside his home. Thus, Plaintiffs’
version of the facts suggests that Mr. Salas-Sanchez did not refuse to
cooperate with or resist the officers’ commands: simply walking away
from officers who had not commanded that he stay in the room is not
resistance. Accordingly, a jury could determine that Rivera’s conduct
violated clearly established principles of constitutional law.
2.
Defendant Gomez’s Deadly Force
Additionally, Plaintiffs allege that Gomez used excessive force
against Mr. Salas-Sanchez when Gomez shot his firearm, which
resulted in Mr. Salas-Sanchez’s death.
a.
Whether a constitutional violation occurred
Plaintiffs must demonstrate that Mr. Salas-Sanchez (1) suffered
an injury, (2) which was directly the result of the use of force that was
63
excessive to the need, and (3) that the use of force was objectively
unreasonable. Carroll, 800 F.3d at 173. Defendant Gomez does not
dispute that Mr. Salas-Sanchez suffered death as a result of the
gunshot wounds. See generally Gomez Mot. 19–22. Accordingly, the
court only considers whether the use of force was excessive to the need
and objectively unreasonable.
As discussed above, if a jury determines that Mr. Salas-Sanchez
was not threatening the officers, was not under arrest for any crime,
and was not resisting or credibly fleeing from the officers, then no force
was necessary. See Bush, 513 F.3d at 502. If no force was needed, then
fatal force would unquestionably exceed the need.
Additionally, fact issues exist regarding whether the use of force
was objectively unreasonable. Whether force is unreasonable is a factintensive inquiry. A jury could believe the following: Mr. SalasSanchez never threatened to harm the officers. Mr. Salas-Sanchez
placed the object he was holding (or his hands, if no object existed) on
the table and then put his empty hands in the air while walking away
from the table. He walked into the kitchen, where he was hit by
Rivera’s taser probes. Then, Mr. Salas-Sanchez entered the hallway
64
and walked toward his bedroom. When Gomez shot Mr. Salas-Sanchez,
Mr. Salas-Sanchez was facing away from the officers.
Defendant Gomez argues that no material fact issues exist and
that it is clear that Mr. Salas-Sanchez posed a threat to Gomez and
lunged at Gomez with an object in his hands. Gomez Reply 10–11.
Specifically, Gomez argues that Sanchez and Ms. Salas-Sanchez were
unable to see Mr. Salas-Sanchez at the time that he was shot, so their
testimony cannot credibly refute Defendants’ allegations. Id. Gomez
also contends that Ms. Salas-Sanchez’s testimony during a trial related
to this case is inconsistent with her deposition testimony. Id.
It is true that Sanchez and Ms. Salas-Sanchez testified that they
did not see Mr. Salas-Sanchez at the moment that he was shot.
Additionally, Rivera stated that he saw Mr. Salas-Sanchez turn after
the shots were fired and before the bullets hit his back. Nonetheless,
the Court is of the opinion that sufficient evidence exists for the jury to
disbelieve Rivera’s testimony and find that Mr. Salas-Sanchez was
walking away from Gomez when Mr. Salas-Sanchez was shot.
Specifically, even though Ms. Salas-Sanchez could not see her
brother at the moment he was shot, her testimony that Mr. Salas65
Sanchez entered the hallway and went toward his bedroom could
support a reasonable inference that he was walking away from the
officers. Significantly, Mr. Salas-Sanchez’s autopsy report revealed
three gunshot wounds, and each of the bullets entered the back of his
body. Thus, Plaintiffs’ proffered facts support an inference that Mr.
Salas-Sanchez was moving away from the officers when Gomez
discharged the firearm.
In addition, fact issues exist regarding whether Mr. Salas-Sanchez
was holding an object that could be perceived to be a deadly weapon.
Ms. Salas-Sanchez testified that her brother had put down any object he
might have been holding (or put his hands on the table). He then raised
his hands in the air, demonstrating that he was not holding any object.
Notably, Defendants are unable to produce a weapon, and fact
issues exist regarding whether an item was found that could have been
the object Mr. Salas-Sanchez was allegedly holding. The officers did not
find a knife or gun that Mr. Salas-Sanchez may have brandished.
Defendant Gomez contends that a brake pad found on the floor of the
home was the object brandished by Mr. Salas-Sanchez. Gomez Mot. 9.
However, Plaintiffs argue that the brake pad was not found near Mr.
66
Salas-Sanchez’s body or near the location where he would have landed
if he had jumped and lunged at Gomez. Resp. to Gomez 23. If
Plaintiffs’ contentions are correct, then no object was ever recovered
that would substantiate Defendants’ claims that Mr. Salas-Sanchez
appeared to be armed when Gomez used deadly force. And if the jury
concludes that no object was found near the location where Mr. SalasSanchez allegedly lunged toward Gomez, then the jury’s determination
would seriously undercut Gomez’s argument that Mr. Salas-Sanchez
posed a threat to officer safety.
In conclusion, if a jury determines that Mr. Salas-Sanchez was not
holding anything that might be a deadly weapon, had not threatened
Gomez, and was walking away from Gomez when he was shot, then
Gomez’s use of lethal force was clearly unreasonable and excessive.
b.
Whether the constitutional rights that Gomez
violated were clearly established
The Court next considers whether Mr. Salas-Sanchez’s Fourth
Amendment rights were clearly established at the time that the conduct
occurred.
In Garner, the Supreme Court held that “[deadly] force may not be
used” against an unarmed suspected felon “unless it is necessary to
67
prevent the [suspect’s] escape and the officer has probable cause to
believe that the suspect poses a significant threat of death or serious
physical injury to the officer or others.” Tennessee v. Garner, 471 U.S.
1, 3 (1985). Accordingly, “deadly force is unconstitutional when a
‘suspect poses no immediate threat to the officer and no threat to
others.’” Mason v. Lafayette City-Par. Consol. Gov’t, 806 F.3d 268, 278
(5th Cir. 2015) (quoting Garner, 471 U.S. at 11). “The excessive force
inquiry is confined to whether the [officer or another person] was in
danger at the moment of the threat that resulted in the [officer’s use of
deadly force].” Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011)
(citing Bazan v. Hidalgo Cnty., 246 F.3d 481, 493 (5th Cir. 2001))
(alterations in original). In sum, constitutional law clearly prohibits the
use of deadly force against an unarmed person who is not attempting to
escape and who does not pose a significant threat of death or serious
physical injury at the moment that force is used.
The Court has discussed the factual disputes underlying this case
in detail. Relevant here, for summary judgment purposes, Mr. SalasSanchez was unarmed: he was not holding an object, and no deadly
weapon was recovered in his body’s vicinity. In addition, Mr. Salas68
Sanchez was not under arrest for any crime, was not resisting arrest,
and was not credibly trying to flee. Further, Mr. Salas-Sanchez never
pushed, hit, or threatened anyone. And Mr. Salas-Sanchez did not pose
a significant threat of death or injury to the officers at the time that he
was shot, as he was walking away from the officers without a weapon.
Thus, resolving all factual disputes in Plaintiffs’ favor, the Court
concludes that Gomez’s use of force violated clearly established
constitutional law.
IV.
CONCLUSION
In sum, a jury may determine that Defendants had neither
probable cause to believe a felony occurred nor exigent circumstances
under which to enter the home. Thus, at this stage in the litigation,
Defendants cannot show that a reasonable officer would believe entry
into the home was lawful. Notwithstanding the illegal entry, the Court
concludes that Plaintiffs’ claims against Defendant Smith should be
dismissed because Mr. Salas-Sanchez’s injury was not a foreseeable
consequence of her entry.
Additionally, a jury could determine that Officers Rivera and
Gomez’s uses of force violated clearly established constitutional law.
69
Specifically, if the jury concludes that Rivera used a taser against a
nonviolent person who was not resisting arrest, then the jury may
determine his force caused an excessive and unreasonable injury in
violation of clearly established law. Further, if the jury determines that
Gomez used lethal force against a person who did not pose a threat of
immediate harm to the officers, then Gomez used lethal force in
violation of clearly established law.
Accordingly, IT IS ORDERED that Defendant Pamela Smith’s
“Motion for Summary Judgment” (ECF No. 140) is GRANTED and that
Plaintiffs Celia Sanchez and Oscar Salas, statutory death beneficiaries
of Erik Emmanuel Salas-Sanchez’s claims against Defendant Pamela
Smith are DISMISSED.
IT IS FURTHER ORDERED that Defendant Alberto Rivera’s
“Motion for Summary Judgment” (ECF No. 141) is DENIED.
IT IS FINALLY ORDERED that Defendant Mando Kenneth
Gomez’s “Motion for Summary Judgment” (ECF No. 145) is DENIED.
SIGNED this 24th day of July, 2019.
_____________________________________
PHILIP R. MARTINEZ
UNITED STATES DISTRICT JUDGE
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