Sanchez et al v. Gomez et al

Filing 264

MEMORANDUM OPINION AND ORDER Regarding ECF No. 143. Signed by Judge Philip R. Martinez. (mg2)

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, and the CITY
OF EL PASO, TEXAS,
Defendants.

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EP-17-CV-133-PRM

MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANT CITY OF EL PASO,
TEXAS’ MOTION FOR SUMMARY JUDGMENT
On this day, the Court considered Defendant City of El Paso,
Texas’ [hereinafter “Defendant City of El Paso”] “Motion for Summary
Judgment” (ECF No. 143) [hereinafter “Motion”], filed on May 1, 2019;
Plaintiffs Celia Sanchez and Oscar Salas’s [hereinafter “Plaintiffs”]
“Response to Defendant City of El Paso’s Motion for Summary
Judgment” (ECF No. 181) [hereinafter “Response”], filed on June 28,
2019; Defendant City of El Paso’s “Reply to Plaintiffs’ Response to
Defendant City of El Paso’s Motion for Summary Judgment” (ECF No.

192) [hereinafter “Reply”], filed on August 6, 2019; and Plaintiffs’
“Surreply to Defendant City of El Paso’s Reply in Support of its Motion
for Summary Judgment” (ECF No. 196) [hereinafter “Surreply”], filed
on August 12, 2019, in the above-captioned cause. For the foregoing
reasons, the Court will grant in part and deny in part Defendant City of
El Paso’s Motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of an officer-involved fatal shooting on April
29, 2015. A police officer of the El Paso Police Department [hereinafter
“EPPD”] shot Mr. Erik Emmanuel Salas-Sanchez [hereinafter “Mr.
Salas-Sanchez”] inside the Salas-Sanchez’s residence. Mr. SalasSanchez died from his wounds. The parties’ allegations regarding the
events surrounding Mr. Salas-Sanchez’s death on April 29, 2015, are
summarized in detail in the Court’s recent “Memorandum Opinion and
Order” regarding Defendant EPPD Officers Mando Kenneth Gomez’s,
Alberto Rivera’s, and Pamela Smith’s motions for summary judgment.
See Mem. Op. and Order, July 24, 2019, ECF No. 189.
At the summary judgment stage, the Court must resolve all
factual disputes in favor of the non-moving party. Anderson v. Liberty
2

Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co.,
398 U.S. 144, 158–59 (1970)). Accordingly, the description of the events
on April 29, 2019, are the facts taken in the light most favorable to
Plaintiffs, as originally identified in the Court’s July 24, 2019,
Memorandum Opinion and Order.
A. Factual Background
On April 25, 2015, Ms. Louisa Romero found her neighbor, Mr.
Salas-Sanchez, inside her home and sitting on her living room couch.
Mem. Op. and Order 4. After Ms. Romero demanded Mr. Salas-Sanchez
leave her home, Mr. Salas-Sanchez walked across the street to his
mother’s home, where Mr. Salas-Sanchez resided. Id. at 5. Ms. Romero
called the EPPD and reported the incident. Id. Shortly thereafter,
Defendant EPPD Officers Mando Kenneth Gomez, Alberto Rivera, and
Pamela Smith [hereinafter collectively referred to as “Defendant
Officers”]1 responded to the report and arrived at the Salas-Sanchez’s
residence. Id. at 7.

Both Defendant Officers Rivera and Smith are no longer parties to
this suit. See Order of Dismissal—Defendant Alberto Rivera, Nov. 8,
2019, ECF No. 218 (dismissing Defendant Officer Rivera pursuant to a
joint stipulation of dismissal); Mem. Op. and Order, July 24, 2019, ECF
No. 189 (granting summary judgment for Defendant Officer Smith).

1

3

Mr. Salas-Sanchez and his mother, Plaintiff Celia Sanchez
[hereinafter “Plaintiff Sanchez”], interacted with the Defendant Officers
in front of the Salas-Sanchez’s home. Id. As the Court noted in its prior
Memorandum Opinion and Order, the details of this interaction present
numerous fact issues that cannot be determined at the summary
judgment stage. See generally id. (discussed in detail throughout the
Court’s Memorandum Opinion and Order). At some point during this
interaction, Plaintiff Sanchez informed the Defendant Officers that Mr.
Salas-Sanchez had been acting strangely and that she believed her son
needed help from mental health services. Mot. 16; Resp. 1.
Subsequently, Mr. Salas-Sanchez entered the Salas-Sanchez’s
residence. Mem. Op. and Order 14. After assessing the situation,
Defendant Officers Gomez and Rivera effectuated what is known as an
“emergency detention order”2 [hereinafter “EDO”], making a
warrantless entry into the home to pursue Mr. Salas-Sanchez and
detain him. Id. Once again, the details of what took place inside the

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.
2

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Salas-Sanchez’s residence create various fact issues that cannot be
determined at the summary judgment stage. See generally id.
(discussed in detail throughout the Court’s Memorandum Opinion and
Order). Ultimately, these events culminated in Defendant Officer
Rivera firing a ranged taser at Mr. Salas-Sanchez, and Defendant
Officer Gomez firing his service weapon thereafter. Id. at 14. Both uses
of force made contact with Mr. Salas-Sanchez, and he later died from
three gunshot wounds he sustained as a result of Defendant Officer
Gomez’s use of force. Id. at 14–15.
B. Procedural Background
Plaintiffs are the parents of decedent Mr. Salas-Sanchez. First
Am. Compl., June 15, 2017, ECF No. 17. Plaintiffs filed their “Original
Complaint” (ECF No. 1) on April 28, 2017, and their “First Amended
Complaint” (ECF No. 17) [hereinafter “Amended Complaint”] on June
15, 2017.
In their Amended Complaint, Plaintiffs allege that the officers
involved in the incident— Defendant Officers Gomez, Rivera, and
Smith—deprived Mr. Salas-Sanchez of his constitutional rights
pursuant to the Fourth and Fourteenth Amendments of the United
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States Constitution, in violation of 42 U.S.C. § 1983. Am. Compl. 22–
23.
Additionally, Plaintiffs bring a Monell municipal liability claim
against Defendant City of El Paso, alleging that:
[The] customs, policies, practices, and procedures, the
failures to properly and adequately hire, train, instruct,
monitor, supervise, evaluate, investigate and discipline and
the unconstitutional orders, approvals, and tolerance of
wrongful conduct of the City of El Paso were adopted with
deliberate indifference to the constitutional rights of citizens
. . . [and] a moving force and/or a proximate cause of the
deprivations of [Mr. Salas-Sanchez]’s clearly established and
well settled constitutional rights under the Fourth
amendment in violation of 42 U.S.C. § 1983.
Id. at 24–25; see also Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)
(setting the standard for determining whether a municipality may be
held liable for a constitutional injury).
1. Plaintiffs’ Claims Against Defendant Officers
Regarding Plaintiffs’ claims against Defendant Officers, Plaintiffs
allege, first, that Defendant Officers 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.” Am. Compl. at 22. Second, Plaintiffs allege
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that Defendant Officers Gomez and Rivera deprived Mr. Salas-Sanchez
“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.” Id. at 23.
At an earlier stage in the litigation, Defendant Officers filed
motions to dismiss pursuant to the Federal Rules of Civil Procedure
Rule 12(b)(6), arguing that Defendant Officers are entitled to qualified
immunity. See Mem. Op. & Order Den. Def. Mando Kenneth Gomez’s,
Alberto Rivera’s, and Pamela Smith’s Mots. to Dismiss, Sept. 1, 2017,
ECF No. 45. The Court denied these motions to dismiss. Id.
Subsequently, in April 2019, Defendant Officers filed motions for
summary judgment, again arguing that they are entitled to qualified
immunity and, accordingly, seeking summary judgment in their favor.
Defendant Officer Mando Kenneth Gomez’s Mot. for Summ. J., Apr. 30,
2019, ECF No. 145; Defendant Alberto Rivera’s Mot. for Summ. J., Apr.
30, 2019, ECF No. 141; Defendant Pamela Smith’s Mot. for Summ. J.,
Apr. 30, 2019, ECF No. 140. On July 24, 2019, the Court entered a
single opinion denying the motions for summary judgment filed by
Defendant Officers Gomez and Rivera, but granting the motion for
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summary judgment filed by Defendant Officer Smith. Mem. Op. and
Order, July 24, 2019, ECF No. 189.
Specifically, the Court determined that “Mr. Salas-Sanchez’s
death was not a foreseeable consequence of [Defendant] Smith’s illegal
entry.” Id. at 52. Therefore, Plaintiffs could not establish that
Defendant Officer Smith’s entry into the home caused an injury. Id.
47–52. Additionally, the Court determined that there were fact issues
regarding whether Defendant Officers’ entry was justified. Id. at 28–
47. Furthermore, a jury could determine that Defendant Officers
Gomez and Rivera’s uses of force violated clearly established
constitutional law. Id. at 52–69. Thus, the Court concluded that
Defendant Officers Gomez and Rivera were not entitled to qualified
immunity as a matter of law, and denied their summary judgment
motions. Id.
2. Plaintiffs’ Claims Against Defendant City of El Paso
Here, Defendant City of El Paso moves for summary judgment
pursuant to the Federal Rules of Civil Procedure Rule 56, arguing that
“[t]he facts of this case do not meet the standard for municipal liability
under Monell.” Mot. 2. In Plaintiffs’ Amended Complaint, Plaintiffs
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claim that various failures of Defendant City of El Paso and its Chief,
Gregory Allen [hereinafter “Chief Allen”], were a “moving force and/or a
proximate cause of the deprivations of” Mr. Salas-Sanchez’s
constitutional rights. Am. Compl. 25. Specifically, Plaintiffs make
eight distinct allegations:
(A) [EPPD maintains] a policy or custom of excessive
force by officers so common and widespread as to constitute
a custom that fairly represents municipal policy;
(B) [EPPD maintains] a policy or custom of officers’
failure to avoid the use of deadly force against individuals
when the officer is not at risk of imminent serious bodily
injury or death;
(C) [EPPD maintains] a policy or custom of the use of
excessive force by officers when the officer is on notice of a
victim’s mental health problems that is so common and
widespread as to constitute a custom that fairly represents
municipal policy;
(D) [EPPD failed to] properly train or supervise
members of the El Paso Police Department, including [cod]efendants Gomez, Rivera, and Smith, not to use
intermediate or deadly force against an individual who does
not place the officer or another at risk of imminent serious
bodily injury or death;
(E) [EPPD failed to] properly train or supervise
members of the El Paso Police Department, including [cod]efendants Gomez, Rivera, and Smith, on mental health
issues and how [to] implement de-escalation and
communication tactics during incidents where their officers
have notice and knowledge that the person for whom they
are called has a mental health issues [sic];
(F) [EPPD failed to] institute proper procedures to
ensure that EPPD officers use appropriate de-escalation and
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communication tactics in situations in which it is known
that an unarmed resident has a mental illness;
(G) [EPPD failed to] classify any officer-involved
shootings as unjustified—particularly those involving
unarmed victims; and
(H) [EPPD failed to] pursue criminal or disciplinary
charges or support criminal or disciplinary action against
officers, including Gomez, Rivera, and Smith, who have
deprived citizens and residents of El Paso of their
constitutional rights.
Id. at 23–24.
In June 2017, Defendant City of El Paso moved to dismiss
Plaintiffs’ First Amended Complaint for failure to state a claim
pursuant to the Federal Rules of Civil Procedure Rule 12(b)(6). Def.
City of El Paso, Texas’ Rule 12 Mot. to Dismiss Pls.’s First Am. Compl.,
June 29, 2017, ECF No. 22. The Court denied the motion. Mem. Op. &
Order Den. Def. City of El Paso’s Mot. to Dismiss, Oct. 6, 2017, ECF No.
46. As explained in the Court’s order, Plaintiffs’ response to the motion
to dismiss distilled Plaintiffs’ allegations into five distinct claims. The
Court determined that Plaintiffs pleaded sufficient facts to state a claim
regarding the following five theories:
(1) EPPD’s policy of excessive force applied to mentally ill
individuals;

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(2) EPPD’s failure to institute proper procedures to ensure officers
employ appropriate tactics when confronted with mental health
issues;
(3) EPPD’s policy of refusing to classify police shootings as
unjustified;
(4) EPPD’s policy of refusing to discipline EPPD officers involved
in instances of excessive force; and
(5) EPPD’s failure to train officers on responding to mental health
crises.
Id. at 30, 35, 40, 44, 53. Defendant City of El Paso now renews its
challenge to these theories, requesting the Court reconsider each as a
matter of law.
II. LEGAL STANDARD
A. Summary Judgment
Pursuant to the Federal Rules of Civil Procedure Rule 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 Liberty Lobby, Inc., 477 U.S. at 248).
Additionally, “the party moving for summary judgment bears the initial
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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
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).

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B. Municipal Liability in the Context of § 1983
Before analyzing Plaintiffs’ theories regarding municipal liability,
some background on the cause of action itself is necessary. Section
1983 instructs:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured in an action at law.
42 U.S.C. § 1983. In the seminal case of Monell v. Department of Social
Services of City of New York, 436 U.S. 658 (1978), the Supreme Court
considered whether municipalities may be subject to suit pursuant to
§ 1983. Id. at 663. The Court’s answer was yes, though a qualified one.
While the Court noted that the legislative history of § 1983 “compel[led]
the conclusion that Congress did intend municipalities and other local
government units to be included among those persons to whom § 1983
applies[,]” it found that “the language of § 1983, read against the
background of the same legislative history, compel[led] the conclusion
that Congress did not intend municipalities to be held liable unless
action pursuant to official municipal policy of some nature caused a
constitutional tort.” Id. at 690–91. Specifically, the Court held that “a
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municipality cannot be held liable solely because it employs a
tortfeasor—or, in other words, a municipality cannot be held liable
under § 1983 on a respondeat superior theory.” Id. at 691.
Consequently, it is only “when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy, inflicts the injury
that the government as an entity is responsible under § 1983.” Id. at
694.
In requiring the existence of an official policy or custom before
municipal liability pursuant to § 1983 may attach, the Court “intended
to distinguish acts of the municipality from acts of employees of the
municipality, and thereby make clear that municipal liability is limited
to action for which the municipality is actually responsible.” Pembaur
v. City of Cincinnati, 475 U.S. 469, 479 (1986). In other words,
municipal liability is “limited to acts that are, properly speaking, acts
‘of the municipality’—that is, acts which the municipality has officially
sanctioned or ordered.” Id. at 480. As a result, the unconstitutional
conduct for which the municipality is allegedly liable “must be directly
attributable to the municipality through some sort of official action or
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imprimatur; isolated unconstitutional actions by municipal employees
will almost never trigger liability.” Piotrowski v. City of Houston,
237 F.3d 567, 578 (5th Cir. 2001) (footnote omitted).
In interpreting the Supreme Court’s guidance on municipal
liability, the Fifth Circuit Court of Appeals has derived “three
attribution principles” that must be established in support of such a
claim. Id. “A plaintiff must identify: ‘(1) an official policy (or custom),
of which (2) a policymaker can be charged with actual or constructive
knowledge, and (3) a constitutional violation whose “moving force” is
that policy or custom.’” Valle v. City of Houston, 613 F.3d 536, 541–42
(5th Cir. 2010) (quoting Pineda v. City of Houston, 291 F.3d 325, 328
(5th Cir. 2002)).
Regarding the first requirement, “[t]he existence of a policy can be
shown through evidence of an actual policy, regulation, or decision that
is officially adopted and promulgated by lawmakers or others with
policymaking authority.” Id. at 542. Even a single decision may qualify
“if the municipal actor is a final policymaker.” Id. A plaintiff may also
demonstrate the existence of an official policy or custom based on a

15

“persistent, widespread practice.” Piotrowski, 237 F.3d at 579 (quoting
Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc)).
As to the second requirement, “[a]ctual or constructive knowledge
of [a] custom must be attributable to the governing body of the
municipality or to an official to whom that body has delegated policymaking authority.” Valle, 613 F.3d at 542 (alterations in original)
(quoting Webster, 735 F.2d at 842). Such an official can either be a
policymaker “who has ‘the responsibility for making law or setting
policy in any given area of a local government’s business,’” id. (quoting
City of St. Louis v. Praprotnik, 485 U.S. 112, 125 (1988)), or a
decisionmaker who “possesses final authority to establish municipal
policy with respect to the action ordered[,]” id. (quoting Pembaur,
475 U.S. at 481).
Finally, to satisfy the third requirement, a plaintiff must allege
“‘moving force’ causation.” Id. This is a two-part obligation. A plaintiff
must show “that the municipal action was taken with the requisite
degree of culpability and must demonstrate a direct causal link between
the municipal action and the deprivation of federal rights.” Id. (quoting
Brown, 520 U.S. at 404). Additionally, a “plaintiff must demonstrate
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that a municipal decision reflects deliberate indifference to the risk that
a violation of a particular constitutional or statutory right will follow
the decision.” Id. (quoting Brown, 520 U.S. at 411); see also Snyder v.
Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998) (noting that “Monell
plaintiffs [must] establish both the causal link (‘moving force’) and the
city’s degree of culpability (‘deliberate indifference’ to federally
protected rights)”).
Operating in concert, these three requirements “distinguish
individual violations perpetrated by local government employees from
those that can be fairly identified as actions of the government itself.”
Piotrowski, 237 F.3d at 578.
III. ANALYSIS
In their Response to Defendant City of El Paso’s Motion, Plaintiffs
distill their allegations into four theories of Monell liability and argue
that the evidence raises sufficient material fact issues regarding each
theory, making summary judgment improper. Resp. 41. Specifically,
Plaintiffs argue that there are fact issues as to the following four
theories of Monell liability:

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(1) failure to institute proper procedures to ensure officers employ
appropriate tactics when dealing with persons suspected of
suffering from mental illness;
(2) failure to properly investigate and discipline officers involved
in excessive use of force;
(3) failure to properly train officers in dealing with the mentally
ill; and
(4) the excessive use of force when dealing with persons suffering
from mental health crises.
Id. (formatted as single paragraph in original).3 The Court will address
each claim in turn. As described above, in order to succeed on their
municipal liability claim, Plaintiffs must establish that there is “(1) an
official policy (or custom), of which (2) a policymaker can be charged
with actual or constructive knowledge, and (3) a constitutional violation

The Court is mindful that Plaintiffs articulate these four theories
differently than the eight theories Plaintiffs pleaded in their Amended
Complaint, and the five theories the Court permitted Plaintiffs to
prosecute when considering the earlier-filed Motion to Dismiss. See
supra pp. 10–11. After due consideration, the Court is of the opinion
that Plaintiffs’ theories as presented in their Response are
substantively similar to those Plaintiffs’ pleaded in their Complaint.
Therefore, the Court will consider Plaintiffs’ four theories as presented
most recently in this case.
Additionally, Plaintiffs’ four theories overlap because the facts are
intertwined. Any determination on one theory will inherently impact a
determination on another. When appropriate, the Court will identify
where it declines to repeat its analysis.

3

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whose ‘moving force’ is that policy or custom.” Valle, 613 F.3d at 541–
42 (quoting Pineda, 291 F.3d at 328).
At the summary judgment stage, the initial burden is on
Defendant City of El Paso to identify “those portions of [the record]
which it believes demonstrate the absence of a genuine issue of material
fact.” Norman, 19 F.3d at 1023 (quoting Celotex, 477 U.S. at 323).
When the moving party has met its initial burden, “the nonmovant
must identify specific evidence in the record and articulate the manner
in which that evidence supports that party’s claim.” Johnson v. Deep E.
Texas Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004). After due consideration, the Court concludes that the
parties have met their respective burdens as to each of Plaintiffs’
theories. Defendant City of El Paso has identified portions of the record
sufficient to support its Motion, and Plaintiffs’ have responded with a
showing of sufficient evidence to survive summary judgment in part.
As a preliminary matter, for the purpose of making its
determination, the Court must consider whether Chief Allen is a
policymaker who can be charged with actual or contructive knowledge
of the alleged official policies or customs within the EPPD. To succeed
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on their claims, Plaintiffs must prove that Chief Allen is an official to
whom Defendant City of El Paso “has delegated policy-making
authority” and who would have “[a]ctual or constructive knowledge of”
each alleged policy or custom that forms the basis of municipal liability
for Mr. Salas-Sanchez’s death. See Piotrowski, 237 F.3d at 579. At the
summary judgment stage, the Court finds that Plaintiffs have
sufficiently established Chief Allen as a policymaker with such
knowledge.
Plaintiffs have presented a number of facts that suggest that
Chief Allen, in his capacity as head of the EPPD, has an integral role in
(1) developing and implementing EPPD procedures for responding to
situations involving the mentally ill; (2) investigating EPPD officer
misconduct and determining discipline; and (3) developing the scope
and content of EPPD officer training. Resp. 2–39. Furthermore,
Defendant City of El Paso “does not challenge that Chief Allen is the
final policymaker for purposes of establishing municipal liability with
respect to all of Plaintiffs’ asserted theories of liability.” Id. at 40–41.
Having considered Plaintiffs’ factual showing and Defendant City of El
Paso’s acquiescence, the Court is of the opinion that Plaintiffs have
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presented sufficient facts, for the purpose of summary judgment, that
Chief Allen is a policymaker who satisfies the second element for all
four claims of municipal liability. Therefore, the Court will only
address the first and third elements of each claim for the remainder of
its analysis.
A. Failure to Institute Proper Procedures to Ensure Officers
Employ Appropriate Tactics When Dealing with Persons
Suspected of Suffering from Mental Illness
Plaintiffs’ first theory—that the EPPD failed to institute proper
procedures to ensure officers employ appropriate tactics when dealing
with persons suspected of suffering from mental illness—is based on
two distinct claims. First, Plaintiffs aver that the EPPD’s “Emergency
Detention” policy in effect at the time of the shooting governing mental
health arrests is facially unconstitutional because it directs officers to
make warrantless mental health arrests on less than probable cause.
Resp. 41. Second, Plaintiffs claim that the EPPD deliberately chose not
to implement a mental health unit, creating a fact issue as to whether
Defendant City of El Paso failed to institute proper procedures when
dealing with persons suffering from mental illness and whether that

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failure was the moving force of the unconstitutional conduct resulting in
Mr. Salas-Sanchez’s death. Id. at 46.
1. EPPD’s Policy of Permitting Officers to Execute a Warrantless
Emergency Detention of Mentally Ill Individuals Without
Probable Cause
Plaintiffs’ argue that the EPPD failed to ensure officers employ
appropriate tactics when confronted with persons suspected of suffering
from mental health crises. Specifically, Plaintiffs contend that
Defendant City of El Paso’s “emergency detention” policy was
unconstitutional because it failed to require that officers have probable
cause that the subject detainee poses a substantial risk of serious harm.
Resp. 42–43. Accordingly, resolving a fact issue regarding whether the
policy required probable cause would determine whether it was facially
unconstitutional as a matter of law.
The Fourth Amendment of the United States Constitution
guarantees “[t]he right of the people to be secure in their persons . . .
against unreasonable searches and seizures.” U.S. Const. amend. IV. A
Fourth Amendment seizure is reasonable only if it is supported by
probable cause. Dunaway v. New York, 442 U.S. 200, 214 (1979).
Furthermore, the probable cause standard applies in the context of a
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seizure of the mentally ill. Cantrell v. City of Murphy, 666 F.3d 911,
923 (5th Cir. 2012) (citing Maag v. Wessler, 960 F.2d 773, 776 (9th Cir.
1991)).
Pursuant to Texas law, both currently and at the time of the
shooting, emergency detention of a person suspected to be mentally ill is
permitted in the following circumstances:
Sec. 573.001. APPREHENSION BY PEACE OFFICER
WITHOUT WARRANT.
(a) 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 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.
(b) A substantial risk of serious harm to the person or others
under Subsection (a)(1)(B) may be demonstrated by:
(1) the person’s behavior; or
(2) evidence of severe emotional distress and
deterioration in the person’s mental condition to the
extent that the person cannot remain at liberty.
(c) The peace officer may form the belief that the person
meets the criteria for apprehension:
(1) from a representation of a credible person; or
(2) on the basis of the conduct of the apprehended
person or the circumstances under which the
apprehended person is found.
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7 Tex. Health & Safety Code § 573.001.
Accordingly, “[a]n officer has probable cause to detain if the two
requirements for emergency detention under Texas law are satisfied.”
Rich v. Palko, 920 F.3d 288, 294 (5th Cir. 2019) (citing Cantrell,
666 F.3d at 923). In the context of seizing the mentally ill, “probable
cause exists where the facts and circumstances within the officer’s
knowledge at the time of the seizure are sufficient for a reasonable
person to conclude that an individual is mentally ill and poses a
substantial risk of serious harm.” Cantrell, 666 F.3d at 923.
Also, at the time of the shooting, the EPPD Police Procedures
Manual [hereinafter “Manual”] “Special Situations” section identified
how officers should interact with persons suspected of suffering from
mental illness. Expressly, at Section 3-402, the Manual directed
officers to “adhere to Title 7 of the Texas Health and Safety Code when
dealing with persons suspected of suffering from mental illness.” Mot.
Ex. A-7, at 2 (Procedures Manual, Special Situations), ECF No. 143-9.
Additionally, the Manual provided the following regarding emergency
detention of mentally ill persons:
3-402.04 EMERGENCY DETENTION. When Officers
have reason to believe a person is mentally ill and poses a
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substantial risk of harm to self or others, they may take that
person into custody for the purpose of obtaining an
evaluation of the person’s emotional and mental status and
the need for involuntary hospitalization. Individuals may
not be taken into custody merely for being mentally
disturbed. Probable cause for obtaining an Emergency
Detention Warrant may be established by a reliable third
party, by considering the overall circumstances of the
incident which may indicate mental illness and immediate
danger or from the Officer’s own observations. Mentally ill
persons will be transported to a suitable facility as
determined by Emergence Health Network (EHN). . . .
A. EMERGENCY DETENTION WARRANT. An officer
will make a reasonable effort to locate the person. If the
person is absent from the scene and the officer is unable
to locate him or her, the officer has the authority, with
supervisor approval, to obtain a Mental Illness Warrant.
The warrant will be filed in the warrant office.
B. EMERGENCY DETENTION WITHOUT A
WARRANT. Emergency detention without a warrant
may be used, with supervisor approval, when a mentally
ill person presents an immediate threat to themselves or
others and immediate transport to a psychiatric facility is
necessary. Emergency Detention Applications are
available for officer’s signature at the facility.
Supervisors must be notified and approve the
circumstances for the emergency detention without a
warrant office.
Id. at 3–4. Specifically, Plaintiffs argue that this “Emergency Detention
Without a Warrant” policy violates the Fourth Amendment and the
requirements set forth in Cantrell because (1) the policy does not
require probable cause and (2) the policy only requires that the
25

mentally ill person present an “immediate threat” and not “a
substantial risk of serious harm.” Resp. 42–43.
The Fifth Circuit has held that “[i]n analyzing the written
policy of [a city], [the court] must do so in the context of the whole.”
Maddux v. Officer One, 90 F. App'x 754, 771 (5th Cir. 2004).
Accordingly, “to confine [the court’s] consideration to a subsection
that [the plaintiff] finds particularly troublesome, narrowly
examining in a vacuum, a single sentence of [a section], would be
inconsistent with generally applicable principles of interpretation
regularly employed by this Court in the construction of a controlling
writing.” Id. Therefore, the Court will consider the totality of the
section for its broader context when analyzing each of Plaintiffs’
textual claims, namely whether it authorized detention without
probable cause or a threat of serious harm.
a. Whether the policy authorized detention without probable
cause
First, Plaintiffs contend that the policy as written did not require
probable cause because it “simply stated that a warrantless arrest ‘may
be used . . . when a mentally ill person presents an immediate threat to
themselves or others and immediate transport is necessary.’” Resp. 42
26

(quoting Mot. Ex. A-7, at 3). Therefore, Plaintiffs argue, in choosing to
use “‘may be used’ language [that] falls short of ‘probable cause,’”
Defendant City of El Paso promulgated a written policy that did not
require probable cause. Id. Additionally, Plaintiffs identify new
language in an amended policy that Defendant City of El Paso issued on
May 11, 2015, twelve days after the shooting in this case.4 Id. at 43.
The amended policy explicitly requires probable cause:
EMERGENCY DETENTION ORDER WITHOUT A
WARRANT
Emergency detention without a warrant shall be used when
probable cause exists that a mentally ill person presents an
immediate threat to themselves or others and immediate
transport to a psychiatric facility is necessary. Supervisors
must be notified and approve the circumstances for the
emergency detention without a warrant.
Resp. Ex. 4, at 97 (Procedures Manual, Special Situations, Chapter
Revised May 11, 2015).5 Thus, Plaintiffs read the amended

Presently, the Court declines to consider whether the amended policy
would be inadmissible evidence at trial as a “subsequent remedial
measure” pursuant to the Federal Rules of Evidence Rule 407. See Fed.
R. Evid. 407 (“When measures are taken that would have made an
earlier injury or harm less likely to occur, evidence of the subsequent
measures is not admissible to prove . . . culpable conduct.”).

4

Plaintiffs contend that the amended policy includes a new section
titled “NON-VIOLENT MENTALLY ILL PERSONS.” Resp. 43–44.
That section provides, “Non-violent mentally ill persons who do not

5

27

language as an acknowledgment of the past policy’s constitutional
inadequacy.
In its Reply, Defendant City of El Paso contends that Plaintiff’s
reading of the policy is noncontextual. Reply 1–2. Defendant first
presents that the policy incorporates Title 7 of the Texas Health &
Safety Code in its language directing officers to “adhere to . . . [the]
Code when dealing with persons suffering from mental illness.” Mot.
Ex. A-7, at 3–4. Relevantly, § 573.001 requires that an officer have
“reason to believe and does believe that” a person is mentally ill, that
because of that illness “there is a substantial risk of serious harm to the
person or to others unless the person is immediately restrained,” and

present an immediate threat to themselves or others and who have
not committed an offense may be informed of appropriate treatment
options. Officers may not take the person to a treatment facility
without their agreement.” Resp. Ex. 4, at 102.
Plaintiffs argue that this new section demonstrates that the
prior policy did not require officers to have probable cause prior to
taking a mentally ill person into custody for transport to a mental
health facility. Resp. 44. However, Plaintiffs appear to be
mistaken: the prior policy in place at the time of the shooting, dated
April 28, 2014, did include a section titled “NON-VIOLENT
MENTALLY ILL PERSONS” and contained substantially identical
language to the new policy. See Mot. Ex. A-7, at 5.

28

that the officer “believes that there is not sufficient time to obtain a
warrant” before seizing the mentally ill person. § 573.001(a). As
explained above, the Fifth Circuit has held that there is probable cause
if these elements are satisfied. See Cantrell, 666 F.3d at 923.
Therefore, Defendant City of El Paso argues, the Emergency Detention
policy should be read to incorporate the Texas Code’s probable cause
standards.
Additionally, Defendant argues that other references in the
overall Special Situations policy demonstrates that the Emergency
Detention policy requires probable cause prior to detention. Reply 2–3.
Specifically, the policy implies the need for probable cause in the
context of obtaining an Emergency Detention Warrant and requires
probable cause if Adult Protective Services requests the emergency
detention of a mentally ill adult or elderly person. Mot. Ex. A-7, at 3, 6.
Plaintiffs present these same facts differently, arguing that “the
mention of probable cause in separate sections of Section 3.402 only
underscores its absence under the ‘Emergency Detention Without a
Warrant’ policy.” Surreply 2.

29

Having reviewed the relevant provisions, the Court concludes that
neither party’s interpretation is dispositive. Opinions may differ on
how to interpret the provision adopting portions of the Texas Health
and Safety Code. One could surmise that the Texas Code was
incorporated into all aspects of the policy, such that requiring probable
cause for warrantless emergency detentions did not need to be expressly
reiterated in the Emergency Detention policy. Simultaneously, one
could consider Defendant City of El Paso’s omission of explicit probable
cause language to be indicative of a deliberate exception to such an
incorporation. After due consideration, when viewing these provisions
in the light most favorable to Plaintiffs, the Court is of the opinion that
a jury could conclude that the written policy affirmatively sanctioned
the warrantless emergency detention of a mentally ill individual
without probable cause.
b. Whether the policy authorized detention without threat of
“serious harm”
Second, Plaintiffs argue that the policy is unconstitutional
because it provides for detention so long as the mentally ill individual
presents merely “an immediate threat” and does not require that the
individual present a threat of “serious harm.” Id. at 43. Plaintiffs
30

maintain that “[t]he ‘serious harm’ language is an important
constitutional constraint on a peace officer’s arrest authority. One can
imagine any number of situations where a person with a mental
disability poses a threat of kicking his dog or taking his mother’s
sandwich.”6 Id. at 43 n.1. An apprehension in such circumstances,
Plaintiffs argue, would violate the Fourth Amendment but would be
consistent with Defendant City of El Paso’s written policy at the time of
the shooting.7 Id.
After due consideration, the Court is of the opinion that a
reasonable jury could conclude that the Emergency Detention policy
authorized warrantless emergency detention of a mentally ill individual
who presented “an immediate threat” as the text of the policy provides,
and not a “substantial risk of serious harm” as required pursuant to the
Texas Health and Safety Code and Fifth Circuit jurisprudence. Similar
to the Court’s reasoning in the previous subsection, though a jury might

The Court presumes that Plaintiffs’ argument does not intend to
diminish the travesty of animal cruelty. Additionally, one could
imagine circumstances where a threat to a dog could provide probable
cause.

6

Defendant City of El Paso did not address this argument in either its
Motion or Reply.
7

31

ultimately determine that the reference to Title 7 of the Texas Health
and Safety Code incorporates the higher standard into Defendant City
of El Paso’s policy, a reasonable jury might also determine that the text
of the Emergency Detention policy authorizes detention based on the
lower “immediate threat” standard.
The Court is mindful of its role in determining Defendant City of
El Paso’s Motion. The Court is not tasked with constructing the policy.
The Court must instead assess these provisions as evidence of the
existence of a written policy that supports one of Plaintiffs’ claims for
relief. Therefore, the Court determines that Plaintiffs have
demonstrated that the language of Defendant City of El Paso’s
Emergency Detention policy creates a fact issue as to whether the
written policy authorizes emergency detention without probable cause
that a mentally ill person poses a substantial risk of serious harm to
themselves or others. If the policy so authorizes, a reasonable
factfinder could conclude that Defendant City of El Paso’s mental
health detention policy is facially unconstitutional.8

The Court notes that a jury’s determination that the policy is facially
unconstitutional does not preclude a determination that the Defendant
City of El Paso’s unwritten policies through training and practices

8

32

Furthermore, a facially unconstitutional policy would be the
moving force for any constitutional violation resulting from an EPPD
officer’s actions pursuant to the policy.9 See Jauch v. Choctaw Cty.,
874 F.3d 425, 435 (5th Cir. 2017) (explaining that causation is clear
when an employee acts at the direction of a municipal policy); Kersh v.
Derozier, 851 F.2d 1509, 1513 (5th Cir. 1988) (same). Therefore, when
considering the facts in the light most favorable to Plaintiffs, a
reasonable jury could find that all three elements of municipal liability
are satisfied as to this theory. Accordingly, the Court is of the opinion
that Defendant City of El Paso should be denied summary judgment
regarding the question of whether its written policy for warrantless
emergency detentions of a mentally ill individual is facially

absolves it of liability for its unconstitutional written policy. See
Maddux v. Officer One, 90 F. App’x 754, 771–72 (5th Cir. 2004) (“It is
plausible that the jury could believe that, though the written policy had
not been updated to reflect current law, officers were nevertheless
trained in protocol that complied with decisional law interpreting the
extent of the Fourth Amendment protection against unreasonable
searches.”).
The Court has already determined that a reasonable jury could
conclude that the actions of Defendant Officers Gomez and Rivera
violated Mr. Salas-Sanchez’s constitutional rights. See Mem. Op. and
Order, July 24, 2019, ECF No. 189.

9

33

unconstitutional, such that it may serve as a basis for Plaintiffs’
requested relief.
2. EPPD’s Choice to Not Implement a Dedicated Mental Health
Unit
In further support of their theory that the EPPD failed to ensure
officers employ appropriate tactics in confronting mentally ill persons,
Plaintiffs argue that Chief Allen made a deliberate choice to not
implement a “Critical Intervention Training” unit or a “Crisis
Intervention Team”10 [hereinafter “CIT”] and this choice was a moving
force of Mr. Salas-Sanchez’s shooting death. Resp. 46. Specifically,
Plaintiffs argue that “Chief Allen knew that [mental health] teams
could reduce the risk of excessive force when presented with mental
health issues, yet deliberately chose not to implement them.” Id.
After due consideration, the Court is of the opinion that a
reasonable jury could find: (1) that Defendant City of El Paso made the
policy decision to not implement a CIT program; (2) which otherwise
may have prevented Mr. Salas-Sanchez’s death; and (3) that Chief Allen

Plaintiffs refer to a “Critical Intervention Training” team in their
Response but refer to “crises intervention” teams in their Amended
Complaint. Compare Resp. 5, with Am. Compl. 15. Both are apparently
abbreviated as “CIT” and used interchangeably in the parties’ filings.

10

34

supported this policy decision while deliberately indifferent to the risk
that EPPD officers may use excessive force against mentally ill
individuals.
a. Policy
“The existence of a policy can be shown through evidence of . . .
[a] decision that is officially adopted and promulgated by lawmakers or
others with policymaking authority.” Valle, 613 F.3d at 542. “A
municipal ‘policy’ must be a deliberate and conscious choice by a
municipality’s policy-maker.” Rhyne v. Henderson Cty., 973 F.2d 386,
392 (5th Cir. 1992) (citing City of Canton v. Harris, 489 U.S. 378, 389
(1989)). “While the municipal policy-maker’s failure to adopt a
precaution can be the basis for § 1983 liability, such omission must
amount to an intentional choice, not merely an unintentionally
negligent oversight.” Id. (citing City of Canton, 489 U.S. at 387). That
is, “municipal liability under § 1983 attaches where—and only where—
a deliberate choice to follow a course of action is made from among
various alternatives by city policymakers.” Goodman v. Harris Cty.,
571 F.3d 388, 396 (5th Cir. 2009) (quoting City of Canton, 489 U.S. at
389). Accordingly, a department’s decision not to implement a policy set
35

forth in a proposal may constitute an official policy of failing to
implement such policy. See Valle, 613 F.3d at 545 (holding that
plaintiff presented sufficient summary judgment evidence to raise jury
issue as to “whether the department’s decision not to implement the
CIT training recommendations in [an internal] proposal constituted an
official policy of failing to adequately train.”).
Here, Plaintiffs argue that the evidence shows that Chief Allen
was aware of the need for CIT units but chose not to implement them.
Resp. 46–49. In their briefs, Plaintiffs refer to “CIT” units, the “CIT”
model, “CIT” training, “CIT” teams, and “CIT” tactics. In some
references, “CIT” appears to stand for “Critical Intervention Training,”
Resp. 5, and at others, “crisis intervention team,” id. at 6, 46. Based on
the parties’ submissions, it appears that a “CIT” or “mental health” unit
refers to a formal program that deploys “CIT teams” in response to
mental health crises. In turn, CIT teams include at least one CITtrained officer or a mental health professional. For example, in the City
of Houston, a CIT team is “a multifaceted comprehensive law
enforcement program for responding to persons in mental health crisis.”
Resp. 5 (citing Resp. Ex. 5 (Houston Police Dep’t, Mental Health
36

Division Website)). According to Plaintiffs, these “CIT teams pair a
uniformed officer with a licensed mental health professional to respond
to field officers’ calls for assistance.” Id.
Additionally, “CIT” is also used to describe particular training,
tactics, and officers who have received such training. Plaintiffs direct
the Court to consider the significant evidence presented in Valle
regarding CIT training. Resp. 5 (citing Valle, 613 F.3d at 544).
Specifically, Plaintiffs quote testimony discussed in Valle by a
lieutenant in the Houston police department’s Mental Health Unit that
CIT training is “180 degrees different than . . . typical police officer and
law enforcement training.” Id. (quoting Valle, 613 F.3d at 545).
Furthermore, Plaintiffs describe what is involved in CIT training based
on the evidence discussed in Valle:
For instance, situations involving mentally ill persons
require a greater degree of patience and can require use of
CIT tactics for periods as long as twenty-four hours. CITtrained officers are trained not to ‘let the pressure of time be
a factor in [their] decisionmaking.’
Id. As another Valle witness explained, CIT training provides police
officers with “appropriate de-escalation and communication tactics.” Id.
(quoting Valle, 613 F.3d at 545).
37

At the time of Mr. Salas-Sanchez’s death, the EPPD did not have a
CIT or mental health unit in place. Resp. 5 (citing Resp. Ex. 3, at 31
(Deposition Testimony of Gregory K. Allen)). Chief Allen had been
Chief of the EPPD for seven and a half years prior to Mr. SalasSanchez’s shooting in April 2015, during which time police departments
in Houston, Dallas, Austin and San Antonio “already had crisis
intervention teams to increase their officers’ capacity to deescalate
situations involving the mentally ill to avoid the use of deadly force.”
Resp. 6 (citing Resp. Ex. 3, at 5; Resp. Exs. 5, 7, 8).
Additionally, Chief Allen testified that the EPPD ultimately
created the CIT program in 2017 because of “the perception by certain
members of the public that the department was ill-equipped to deal
with mental health issues.” Resp. 6 (citing Ex. 3, at 20). As Chief Allen
elaborated, “This had been a concern over the years from various
members of the community and city council members, not only on my
term, but during past administrations of the police department.”11 Id.

Once again, the Court declines to consider whether the
implementation of a CIT program in 2017 is inadmissible evidence at
trial as a “subsequent remedial measure” pursuant to the Federal Rules
of Evidence Rule 407. See Fed. R. Evid. 407. Conversely, deposition
testimony related to attitudes prior to the incident might be admissible

11

38

Plaintiffs cite to several other pieces of evidence supporting the
reasonable inference that Chief Allen was aware of the existence of CIT
units prior to the April 2015 shooting, including his testimony that he
knew that Houston had implemented CIT units, his participation in
chief training, his testimony that he reads publications by the
International Association of Chiefs of Police and the Major Cities Chiefs
Associations, and his testimony regarding familiarity that other cities
have CIT programs in place. Resp. 6–7.
Finally, Plaintiffs contend that the “need for CIT units was
specifically brought to Chief Allen’s attention fifteen months” prior to
the shooting when, on January 17, 2014, “Chief Allen received a
detailed “review from a non-profit organization—Disability Rights
Texas—informing him of the results of an investigation that they
conducted of an incident involving his officers using excessive force
against a mentally ill person, Michael Sosa.” Resp. 8 (citing Resp. Ex.
11 (Letter from Disability Rights Texas)). In the review, an attorney on
behalf of the organization explained that the EPPD officers tased,

despite having been prompted by questions regarding inadmissible
evidence.
39

physically restrained, and punched Mr. Sosa in the face. Id. The
attorney was also of the opinion that “the EPPD had the opportunity to
consider or take other more appropriate measures short and prior to the
use of force, to deescalate the situation and failed to do so.” Id.
Accordingly, Disability Rights Texas:
Ask[ed] the EPPD to re-examine its policies, procedures, and
practices . . . [and ensure that] any in-house mental
health/crisis response teams, e.g., CIT teams, certified
mental health deputies, mobile crisis intervention units, are
readily available, properly trained, and fully prepared to
respond immediately and when necessary to address calls
involving individuals with a mental health illness or
[intellectual developmental disability] and in crisis.
Resp. Ex. 11, at 4.
In its Reply, Defendant City of El Paso appears to argue that
there is no cognizable official policy as part of Plaintiffs’ claim that the
EPPD failed to implement a CIT unit. Specifically, Defendant City of
El Paso maintains that this case is distinguishable from Valle, in which
the Fifth Circuit held that the City of Houston’s decision not to
implement recommendations set forth in an internal proposal could
constitute an official policy of failing to adequately train. Valle,
613 F.3d at 544–45. Defendant argues, “Plaintiff has produced no

40

evidence of an internal policy suggestion in the El Paso Police
Department that predates this incident.” Reply 3.
However, the Fifth Circuit in Valle did not state that an internal
policy suggestion is the exclusive means by which an official
policymaker can become aware of a potential policy and deliberately
choose, as a form of official policy, not to implement such policy. That
is, the reasoning in Valle does not preclude the finding that a
policymaker’s awareness of a potential policy through means other than
an internal proposal and choice to decline to implement such policy,
could be considered an official policy.
After due consideration, the Court is of the opinion that Plaintiffs
have provided sufficient summary judgment evidence to create a fact
issue as to whether the City had an official policy of not implementing a
CIT unit. According all reasonable inferences in favor of Plaintiffs, a
reasonable jury could conclude that Chief Allen was aware of the
existence of CIT units and the recommendation that the EPPD
implement such units. Therefore, the summary judgment record
suggests that Chief Allen had ample evidence to make an informed
decision regarding the outside policy proposal. Furthermore, his
41

decision to disregard Disability Rights Texas’s recommendation, a little
over a year before Mr. Salas-Sanchez’s death, could be considered
deliberate.
b. Moving Force Causation
In order to succeed in a claim for municipal liability, a plaintiff
“must demonstrate a direct causal link between the municipal action
and the deprivation of federal rights.” Valle, 613 F.3d at 542 (quoting
Brown, 520 U.S. at 404). “[T]he connection must be more than a mere
‘but for’ coupling between cause and effect.” Id. at 546 (citing
Thompson v. Connick, 578 F.3d 293, 300 (5th Cir. 2009)). Rather, the
deficiency must be the “actual cause of the constitutional violation.” Id.
Plaintiffs argue that “[e]vidence of the overall effectiveness of
mental health units combined with the events leading to the tasing and
shooting death of [Mr. Salas-Sanchez] raise significant fact issues that
Chief Allen’s failure to implement such units was a ‘moving force’ in the
death of [Mr. Salas-Sanchez].” Resp. 48. Specifically, Plaintiffs claim
that a CIT trained officer or paired mental health professional would
have recognized that the officers’ actions were the source of Mr. SalasSanchez’s irritation and “would have likely resolved the encounter by
42

simply leaving a referral to a mental health facility with [Mr. SalasSanchez]’s mother which is what she was seeking in the first place.” Id.
Defendant City of El Paso argues that Plaintiffs’ position is based on a
“conjecture that the outcome might have been different.” Reply 7.
Further, Defendant City of El Paso suggests that Plaintiffs make the
unsubstantiated assertion that:
[T]he outcome might have been different, IF the City had
established CIT units, and IF a CIT unit was available at the
time of this incident, and IF those CIT officers had made the
scene in time, and IF they had chosen different tactics, and IF
Erik Salas-Sanchez had reacted differently to the CIT officers.
Reply 7.
At this juncture, the Court must construe evidence to draw all
reasonable inferences in the light most favorable to Plaintiffs.
Accordingly, as detailed in the Court’s Memorandum Opinion and Order
regarding the Defendant Officers’ motions for summary judgment, the
following is true for the purposes of resolving the instant motion: Prior
to the officer’s entry into the home, “Mr. Salas-Sanchez had insulted the
officers and asked them to leave but not threatened them.” Mem. Op.
and Order 59. Additionally, Mr. Salas-Sanchez was not holding any
object. Id. at 39. Furthermore, Mr. Salas-Sanchez “did not assault or
43

threaten his mother.” Id. at 45. Subsequently, after the officers
entered the home, “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.” Id. at 64. Next,
“Mr. Salas-Sanchez entered the hallway and walked toward his
bedroom. When Gomez shot Mr. Salas-Sanchez, Mr. Salas-Sanchez was
facing away from the officers.” Id. at 64–65.
It is reasonable to infer that, if the EPPD had a CIT unit similar
to that of the City of Houston’s, a CIT team would have been deployed
and a CIT trained officer or mental health professional would have
employed de-escalation and communication techniques and
recommended that the officers not enter the home. Instead, when
resolving the factual disputes in favor of Plaintiffs, it is clear that the
opposite happened. The Defendant Officers entered the Salas-Sanchez’s
home and did not de-escalate the situation. Their subsequent use of
excessive force was the very thing CIT training and tactics were
designed to prevent. Therefore, the Court concludes that a reasonable
jury could determine that Defendant City of El Paso’s failure to
44

implement a CIT program was a moving force of the unlawful entry and
use of excessive force in this case.
c. Deliberate Indifference
When a policy does not facially violate a federal right, a plaintiff
“must show that the policy was adopted or maintained with deliberate
indifference to the known or obvious fact that such constitutional
violations would result.” Johnson v. Deep E. Texas Reg’l Narcotics
Trafficking Task Force, 379 F.3d 293, 309 (5th Cir. 2004). In other
words, a plaintiff must show the municipal action reflects “the requisite
degree of culpability”—that is, “deliberate indifference to the risk that a
violation of a particular constitutional or statutory right will follow the
decision.” Valle, 613 F.3d at 542 (quoting Brown, 520 U.S. at 404, 411).
“Deliberate indifference is a high standard—‘a showing of simple or
even heightened negligence will not suffice.’” Id. (citing Piotrowski,
237 F.3d at 579). Establishing deliberate indifference “generally
requires that a plaintiff demonstrate at least a pattern of similar
violations.” Johnson, 379 F.3d at 309 (quoting Burge v. St. Tammany
Parish, 336 F.3d 363, 370 (5th Cir. 2003)).

45

In Valle, the Fifth Circuit held that the plaintiffs failed to link the
“potential for constitutional violations” in situations involving mentally
ill persons “to a pattern of actual violations sufficient to show deliberate
indifference.” Valle, 613 F.3d at 548. Notably, the internal proposal
recommending additional CIT training did “not detail any prior specific
instances of the use of excessive force by non-CIT officers.” Id.
Additionally, the Valle plaintiffs failed to “elicit testimony that City
officials were aware of prior shootings of unarmed mentally ill
individuals.” Id. Though the Valle plaintiffs presented testimony
demonstrating the assistant police chief was “aware of two shootings of
mentally ill persons that occurred after [the victim] was killed,” it was
deemed not sufficient evidence to survive summary judgment. As the
Valle Court explained, “[E]ven assuming that these later shootings
involved excessive force, they are not sufficient to show that the City
was on notice of similar constitutional violations before [the decedent]
was killed.” Id.
Furthermore, evidence that merely suggested that “prior
shootings of mentally ill persons in fact had occurred” was deemed
insufficient when it failed to “establish a pattern of constitutional
46

violations.” Id. Additionally, “[p]rior instances must point to the
specific violation in question; ‘notice of a pattern of similar violations is
required.’” Id. (quoting Davis, 406 F.3d at 383). Accordingly, based on
Valle, in order to show deliberate indifference, Plaintiffs must allege a
pattern of actual constitutional violations similar to the alleged
violations in this cause and demonstrate that Defendant City of El Paso
officials were aware of those constitutional violations.
i.

Considering what constitutes a pattern

In support of Plaintiffs’ theory of Monell liability based on Chief
Allen’s choice not to implement a CIT unit, Plaintiffs propose a “pattern
of cases” involving the EPPD, Resp. 49 n.18 (citing Resp. Sec. II(C)),
identifying eight instances where EPPD officers acted in accordance
with an alleged “[p]attern of use of excessive force against mentally ill
victims,” id. at 10. These eight instances encompass the following
victims: (1) Gregory Smith (2008); (2) Efrain Velasquez (2008);
(3) Daniel Rodrigo Saenz (2013); (4) Fernando Gomez (a.k.a. Mercedes
de Marco) (2013); (5) David Alejandro Gandara (May 2015); (6) Daniel
Ramirez (June 2015); (7) Arthur Williams (2016); and (8) Francisco

47

Ramirez (2016).12 Plaintiff supports each instance with facts on the
record. Notably, Plaintiffs’ presentation of events that took place both
before and after the shooting of Mr. Salas-Sanchez pushes the Court
beyond Valle and into new territory.
Defendant City of El Paso argues that “Valle makes clear,
subsequent incidents are not probative of causation for ‘conscious and
deliberate indifference’ . . . [e]ach of the incidents in a ‘pattern’ must be
prior.” Mot. 23 (citing Valle, 613 F.3d at 548). Therefore, Defendant
City of El Paso objects to the evidence of future instances on relevancy
and Federal Rules of Evidence Rule 403 grounds.13 Id. Having
considered Valle, the Court concludes that Defendant City of El Paso’s
interpretation overstates the Fifth Circuit’s reasoning.
The Valle Court established that a claim may not survive
summary judgment when it relies exclusively on future instances. This

Defendant City of El Paso objects to the use of instances “not pled in
Plaintiffs’ Amended Complaint.” Reply 19. The Court is unaware of
any requirement that all instances in an alleged pattern be present in
the Complaint. Therefore, the Court denies Defendant City of El Paso’s
objection without prejudice given the absence of relevant legal
precedent.

12

The Court notes Defendant City of El Paso’s objection and denies it
without prejudice.

13

48

is common sense, for the Court is unaware of any city official who can
divine the future. However, Plaintiffs in this case have provided prior
instances, addressing the Valle Court’s concerns. Furthermore, the
Court is inclined to consider future instances as still probative in
determining whether a “pattern” existed at the time of Mr. SalasSanchez’s death. Thus, the inquiry is nuanced: might the future
instances permit a reasonable jury to conclude that any prior instance
was part of a pattern, and, if there was such a pattern, could Chief
Allen have known a pattern existed at the time of Mr. Salas-Sanchez’s
death?14
To answer this question in the case at bar, the Court must now
consider when the character of a prior instance changes from that of an
isolated incident into that of one of a pattern of instances. It is possible
that the pattern might only reveal itself after Mr. Salas-Sanchez’s
death, a distinction that may be significant. Alternatively, this
distinction may be inconsequential if Chief Allen had sufficient
information at his disposal to know that any prior instance was part of

Considering the facts of Valle, the answer to this question would be
no. Without a prior instance, the municipality could not have
anticipated that any victim’s death would be the first in a pattern.

14

49

a pattern, even if the pattern had not run its course. Furthermore, if
future instances were admissible, a jury would have more evidence of a
pattern to consider than Chief Allen had at the time of Mr. SalasSanchez’s death.
These issues underscore the difficulty the Court has balancing
what it perceives as the dual purposes of finding a pattern. On the one
hand, a pattern is evidence regarding Defendant City of El Paso’s
actions prior to Mr. Salas-Sanchez’s death. It enables a jury to
determine the scope of available evidence that informed Defendant City
of El Paso’s actions at the time of the events giving rise to the cause of
action. On the other hand, a pattern is a legal requirement forming the
basis of a claim for relief. It defines the very nature of Mr. SalasSanchez’s death pursuant to the laws of the United States. The Court
questions whether a jury should be limited to considering only evidence
relevant to the former at the expense of abundant evidence relevant to
the latter. Unfortunately, the Court is of the opinion that the law
provides few answers to these concerns.
Simultaneously, the Court is uncertain whether the fact that Mr.
Salas-Sanchez’s death occurred early in a possible pattern would impact
50

Plaintiffs’ claim for relief, rendering his death as the basis for a future
plaintiff’s Monell claim while insulating Defendant City of El Paso from
municipal liability in this case. Were the Court limited to only past
instances, a hypothetical plaintiff from a future instance in the pattern
could rely on Mr. Salas-Sanchez’s death to survive summary judgment,
while Plaintiffs in this case might lose summary judgment should the
prior instances not reveal a pattern on their own.15 Thus, the Court
contemplates how many instances of excessive force are necessary
before Defendant City of El Paso has earned the “requisite degree of
culpability” for possible municipal liability. Furthermore, the law is
unclear on whether it requires Defendant City of El Paso to answer for
all instances forming the pattern, or only the final few. This challenge
gets to the heart of the nebulous and ill-defined “deliberate indifference”
standard, one that is difficult to apply when prior instances do not

For example, proof of a pattern might be stronger for the family of
Mr. Daniel Ramirez, who was tased while hanging himself from a
basketball hoop on June 23, 2015, because his death occurred two
months after Mr. Salas-Sanchez’s death. See Resp. 15. The Court
questions whether the nature of Defendant City of El Paso’s culpability
changes merely because Mr. Ramirez’s family may present an
additional instance to prove a pattern.

15

51

indicate an obvious conclusion. Therefore, the Court is reluctant to
deny a plaintiff access to justice when the law does not so require.
On this day, the Court could undertake the unenviable task of
predicting what the Fifth Circuit might prefer in this circumstance.
The Court declines to make such a prediction, concluding that the Fifth
Circuit is better suited to define the scope of its own jurisprudence.
Additionally, the Court is mindful that “summary judgment must be
used with due regard for its purposes and should be cautiously invoked
so that no person will be improperly deprived a trial of disputed factual
issues.” See 10A Mary Kay Kane, Fed. Prac. & Proc. Civ. § 2712 (4th
ed. 2019). Furthermore, “when a court is called upon to apply a legal
principle in a novel fashion, the potential impact of the decision and the
deleterious nature of the conduct called into question are relevant . . . a
more complete factual record is required.” Id. § 2725.
The Court cannot overstate the seriousness of Plaintiffs’
allegations against Defendant City of El Paso. Were the Court to
expand the Fifth Circuit’s existing jurisprudence on municipal liability
to deny Plaintiffs an opportunity to make their case on the record, the
Court would risk committing an injustice when it is not legally bound to
52

do so. Accordingly, the Court concludes that it would be preferable to
revisit the question of whether Plaintiffs have established a pattern
once their record is complete. See Fed. R. Civ. P. 50 (permitting a party
to move for judgment as a matter of law during a jury trial, “specify[ing]
the judgment sought and the law and facts that entitle the movant to
the judgment”). Should Plaintiffs fail to show a pattern at trial, the
question of future instances would be inconsequential for this case.
Should Plaintiffs receive a favorable jury determination, the Fifth
Circuit may have the opportunity to reconsider municipal liability on
appeal.
After due consideration, the Court is of the opinion that Plaintiffs
have provided sufficient evidence that create genuine disputes of
material fact, and deny Defendant City of El Paso summary judgment
regarding its failure to implement a CIT program. Considering the
facts in the light most favorable to Plaintiffs, a reasonable jury could
determine that Chief Allen was deliberately indifferent that
constitutional violations may result if he did not implement a CIT
program. The Court arrives at this conclusion after developing a

53

framework to determine when force is excessive, and applying that
framework to each of Plaintiffs’ cited instances.
ii.

Defining excessive force

When considering a Fourth Amendment excessive-force claim,
courts must apply the “objective reasonableness” standard to determine
whether an officer’s use of force amounted to an unconstitutional
seizure.16 Graham v. Connor, 490 U.S. 386, 388 (1989). In applying
Graham, the Fifth Circuit has required plaintiffs to show the subject of
the use of force “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)). Considering an excessive force claim is
“necessarily fact-intensive; whether the force used is ‘excessive’ or
‘unreasonable’ depends on ‘the facts and circumstances of each
particular case.’” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)

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).

16

54

(quoting Graham, 490 U.S. at 396). Furthermore, “[t]he
‘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.
Additionally, the Fifth Circuit has narrowed its application of
Graham to consider only those facts in existence at the moment an
officer chose to use force. Harris v. Serpas, 745 F.3d 767, 772 (5th Cir.
2014) (refusing to consider events that may have prompted the victim to
raise his weapon at an officer). Thus, the Court must not consider any
prior actions an officer may have taken that might have increased the
likelihood that they use a taser or firearm. See Cass v. City of Abilene,
814 F.3d 721, 731–32 (5th Cir. 2016) (citing Harris, 745 F.3d at 772)
(rejecting argument that the officers’ decision to execute a warrant with
their firearms drawn created a dangerous circumstance where the use
of excessive force was likely).
In the context of mental illness, the Court is precluded from
considering whether an officer’s inadequate response to a mental health
crisis provoked the victim into acting aggressively. See Elizondo v.
Green, 671 F.3d 506, 511 (5th Cir. 2012) (DeMoss, C.J., concurring)
55

(lamenting the narrow scope of excessive force law and suggesting that
“[e]ither law enforcement procedures or our law must evolve if we are to
ensure that more avoidable deaths do not occur at the hands of those
called to ‘protect and serve’”). Furthermore, once a mentally ill victim
has acted in such a way that the use of force would be objectively
reasonable, it is inconsequential whether the officers attempted to
“accommodate” the illness before using force. See City of San Francisco
v. Sheehan, 135 S. Ct. 1765, 1771, 1775 (2015) (disagreeing with the
lower court’s view that the officer should have used other means to deescalate the situation). Therefore, mental illness appears to factor very
little into an excessive force analysis, if at all.17

The Court is mindful that Plaintiffs’ claims rely heavily on the
proposition that Defendant City of El Paso’s liability is predicated on its
failure to ensure EPPD officers de-escalate encounters with mentally ill
individuals. This argument occupies a gray area between the Fifth
Circuit’s separate Monell and Graham jurisprudences. Though
seemingly permissible as a claim for relief pursuant to Monell, it
simultaneously appears to be precluded pursuant to the Fifth Circuit’s
application of Graham. It is unclear to what extent this dissonance
impacts the viability and scope of Plaintiffs’ claims. Noticeably, the
Court considers it highly persuasive that the Fifth Circuit has
considered similar arguments in the past without questioning these
Fourth Amendment implications. Accordingly, the Court is of the
opinion that though a Graham analysis is necessary to consider Monell
in this case, the Fifth Circuit’s interpretation of Graham is not fatal to
Plaintiffs’ claims.

17

56

Accordingly, it is insufficient for Plaintiffs to allege a pattern of
instances where officers used tasers or firearms against mentally ill
individuals when de-escalation may have been an option. The law does
not account for mental illness or provide a separate test for what a
reasonable officer would do in response to a mental health crisis.
Instead, the pattern must consist of only those cases where an officer’s
use of a taser or firearm against a mentally ill individual was excessive
pursuant to the Fifth Circuit’s application of Graham. See Harris, 745
F.3d at 772 (narrowing Graham to consider only “the moment of the
threat”). Therefore, the Court shall apply this strict standard to
determine whether the facts of each cited instance, when considered in
the light most favorable to Plaintiffs, could support a finding of
excessive force. Should a sufficient number of instances indicate
excessive use of force, Plaintiffs will have adequately alleged a pattern
to survive summary judgment.
iii.

Isolated instances where force was not excessive

Plaintiffs have provided significant documentation for each
alleged instance, including but not limited to police reports, eyewitness
statements, interrogatories, and review board findings. See Resp.
57

Sealed Exs. [hereinafter “Resp. Sealed”], June 28, 2019, ECF No. 180.
At summary judgment, the Court must consider the evidence in the
light most favorable to Plaintiffs, viewing each instance in isolation to
consider whether a reasonable jury could determine that there had been
excessive use of force in that specific event. Having considered the
evidence, the Court is of the opinion that a reasonable jury could not
determine that EPPD officers used excessive force in the matters of
Gregory Smith (2008), Efrain Velasquez (2008), David Alejandro
Gandara (2015), and Arthur Williams (2016). Though all four instances
share the similar thread of EPPD officers failing to de-escalate mental
health crises, each victim wielded a possible weapon in a threatening, or
violent, manner such that the use of force was objectively reasonable.
A. Gregory Smith
Regarding the shooting death of Gregory Smith on June 13, 2008,
an EPPD officer used his service firearm after Mr. Smith had drawn
what appeared to be a handgun and pointed it in the EPPD officer’s
direction. While on patrol, the EPPD officer observed Mr. Smith
behaving erratically in a motel parking lot. Resp. Sealed Ex. 16, at 42
(EPPD Shooting Review Team [hereinafter “SRT”] Form Three
58

Narrative). After initiating a stop and interacting with Mr. Smith, the
EPPD officer concluded that Mr. Smith may have been mentally ill or
under the influence of narcotics. Id. The EPPD officer then conducted
a routine search of the police database, revealing that Mr. Smith had an
outstanding warrant for his arrest. Id.
When the EPPD officer approached Mr. Smith to make the arrest,
Mr. Smith shouted twice that he possessed a gun, brandished what
appeared to be a silver handgun, and aimed it at the EPPD officer. Id.
at 42–43. Fearing for his safety, the EPPD officer took cover by the side
of his patrol vehicle, drew his service firearm, and proceeded to shoot at
Mr. Smith until he appeared to be incapacitated. Id. at 43. The EPPD
officer fired seventeen shots, eleven of which hit Mr. Smith. Id. at 48
(EPPD SRT Form Six Subject Report). Though investigators later
discovered that Mr. Smith’s weapon was merely a “toy gun wrapped in
duct tape,” id., there is no evidence that the EPPD officer was aware of
this fact at the time.
Furthermore, because Plaintiffs have not provided any evidence
that contradicts the EPPD officer’s statement given to the EPPD
Shooting Review Team, there are no fact issues that need to be resolved
59

in Plaintiffs’ favor. Accordingly, the Court concludes that it was
objectively reasonable for the EPPD officer to use his service firearm to
neutralize the perceived risk that his life was in danger. Therefore,
because the use of force was not excessive, the Court is of the opinion
that a reasonable jury could not determine that Mr. Smith’s shooting
death was the result of a constitutional violation that is part of a
pattern relevant in this case.
B. Efrain Velasquez
Regarding the shooting death of Efrain Velasquez on December
11, 2008, an EPPD officer used her service firearm after Mr. Velasquez
assaulted another EPPD officer with a kitchen knife. Three EPPD
officers arrived at the Velasquez’s residence after responding to a report
that Mr. Velasquez had threatened his neighbor with a knife. Resp.
Sealed Ex. 17, at 61 (EPPD SRT Form Three Narrative). Mr.
Velasquez’s mother informed the EPPD officers that she did not know
where her son was located. Id. She requested the EPPD officers find
Mr. Velasquez “due to the fact that he was schizophrenic.” Id. Shortly
thereafter, Mr. Velasquez’s mother discovered him in the master
bedroom of the Velasquez’s residence. Id. She invited two of the EPPD
60

officers into the home and led them to Mr. Valasquez, who she said was
hiding from her. Id at 61–62.
Once the two EPPD officers approached the master bedroom, they
discovered Mr. Velasquez with his back against a wall and his right
hand concealed. Id. at 62. One EPPD officer instructed Mr. Velasquez
to show his hands and drop any objects he may be holding, commands
that Mr. Velasquez refused to comply with. Id. Next, Mr. Velasquez
“raised a large kitchen knife up over his head, with the blade pointed
towards [the EPPD officer] and ran towards him . . . striking him in the
face with the knife.” Id. An intense altercation ensued, with the first
EPPD officer attempting to disarm Mr. Velasquez while avoiding
multiple knife lunges and swings. Id. Simultaneously, the second
EPPD officer drew her service firearm, explaining to the EPPD
Shooting Review Team that “she was afraid that [Mr. Velasquez] would
overpower [the first EPPD officer] and kill him.” Id. at 63. Ultimately,
the second EPPD officer fired one round into Mr. Velasquez’s abdomen.
Id. at 63; see also id. at 71 (EPPD SRT Form Six Subject Report). As a
result, the struggle ended and the first EPPD officer disarmed Mr.
Velasquez. Id. at 63 (EPPD SRT Form Three Narrative).
61

Similar to the matter of Gregory Smith, Plaintiffs have not
provided any evidence that contradict the witness statements made to
the EPPD Shooting Review Team. The Court is mindful that the many
witnesses’ perspectives contained therein differ in some respects.
Accordingly, the Court, having considered the salient uncontested facts,
determines that the inconsistencies between witnesses do not pertain to
whether Mr. Velasquez had attacked the first EPPD officer with a knife
before the shooting. Accordingly, the Court is of the opinion that it was
objectively reasonable for the second EPPD officer to use her service
firearm to neutralize the deadly threat Mr. Velasquez posed to the first
EPPD officer. Therefore, the use of force was not excessive, and a
reasonable jury could not conclude that Mr. Velasquez’s shooting death
was the result of a constitutional violation that is part of a pattern
relevant to this case.
C. David Alejandro Gandara
Regarding the shooting death of David Alejandro Gandara on May
21, 2015, two EPPD officers used their service firearms after observing
Mr. Gandara reach into what the EPPD officers believed was a gun
case. Four EPPD officers responded to a report that there was a subject
62

with a gun in public and that the “subject had a rifle or shotgun to his
own head.” Resp. Sealed Ex. 31, at 44 (Witness Sworn Statement of
First EPPD Officer); see also Resp. Sealed Ex. 32, at 48 (Witness Sworn
Statement of Second EPPD Officer) (recalling that the report said the
subject had a rifle); Resp. Sealed Ex. 34, at 57 (Witness Sworn
Statement of Third EPPD Officer) (recalling that the report said the
subject had a rifle or shotgun). The first and second EPPD officers
arrived first and discovered Mr. Gandara urinating on the side of a
building in an alleyway. Resp. Sealed Ex. 31, at 44–45; Resp. Sealed
Ex. 32, at 49. Both EPPD officers chose to carry rifles in response to the
report that Mr. Gandara was armed. Resp. Sealed Ex. 31, at 44; Resp.
Sealed Ex. 32, at 49. By the time the third EPPD officer arrived, Mr.
Gandara was behaving erratically. Resp. Sealed Ex. 31, at 44; Resp.
Sealed Ex. 32, at 49; Resp. Sealed Ex. 34, at 57. He paced back and
forth, kept a hand concealed in his shorts, and ignored commands to
stop and raise his hands. Resp. Sealed Ex. 31, at 45; Resp. Sealed Ex.
32, at 49; Resp. Sealed Ex. 34, at 57. The first and second EPPD
officers continuously aimed their rifles at Mr. Gandara during these
moments. Resp. Sealed Ex. 31, at 44 (“I had my weapon aimed at the
63

subject . . . because the comments of the call stated the subject had a
rifle or shotgun on his person . . . .”); Resp. Sealed Ex. 32, at 49 (“The
subject was very wide eyed and didn’t appear phased at my presence or
the fact that I had a rifle pointed at him . . . it made me uneasy.”).
Subsequently, the fourth EPPD officer arrived at the opposite end
of the alleyway, containing Mr. Gandara inside. Resp. Sealed Ex. 32, at
49; Resp. Sealed Ex. 34, at 57. Mr. Gandara turned to the fourth EPPD
officer and began to approach him in the same manner that Mr.
Gandara had approached the first and second EPPD officers. Resp.
Sealed Ex. 32, at 49. The third EPPD officer began giving commands in
Spanish, slowly approaching Mr. Gandara to get within an effective
taser distance. Resp. Sealed Ex. 34, at 57. Mr. Gandara ignored the
commands, choosing instead to approach the rear of a truck parked in
the alleyway. Resp. Sealed Ex. 31, at 45; Resp. Sealed Ex. 32, at 49;
Resp. Sealed Ex. 34, at 57. The three EPPD officers who gave sworn
statements all observed Mr. Gandara reach into the truck bed and
retrieve what appeared to be a black rifle case. Resp. Sealed Ex. 31, at
45; Resp. Sealed Ex. 32, at 50; Resp. Sealed Ex. 34, at 57. Responsively,
the second EPPD officer warned Mr. Gandara, “Don’t do it!” and
64

instructed him to put down the case. Resp. Sealed Ex. 31, at 45; Resp.
Sealed Ex. 32, at 50. When Mr. Gandara continued to reach into the
case, both the first and second EPPD officers fired their rifles and Mr.
Gandara collapsed on the ground. Resp. Sealed Ex. 31, at 45, Resp.
Sealed Ex. 32, at 50 (“Fearing that the subject was accessing a weapon
and not knowing the weapon’s orientation in the case,” the second
EPPD officer was concerned for his and his fellow EPPD officers’
safety); Resp. Sealed Ex. 34 at 58 (“I observed a[n] entry wound to his
right chest and right side of his head by his ear. The subject was
unresponsive.”).
Once again, Plaintiffs have not provided any evidence to question
the accuracy or veracity of the EPPD officers’ sworn statements about
Mr. Gandara’s shooting. Furthermore, all three EPPD officers provide
similar accounts. The EPPD officers were on notice that Mr. Gandara
may be armed, observed Mr. Gandara behave erratically, attempted to
gain Mr. Gandara’s cooperation through verbal instructions, and fired
their service weapons only after Mr. Gandara reached for what
appeared to be a weapon of his own. Accordingly, the Court concludes
that it was objectively reasonable for the first and second EPPD officers
65

to fire their service weapons in response to the apparent threat Mr.
Gandara posed to their safety. Thus, the use of force was not excessive,
and a reasonable jury could not determine that Mr. Gandara’s death
was one of a pattern of cases relevant to this case.
D. Arthur Williams, Jr.
Regarding the shooting death of Arthur Williams, Jr., on May 9,
2016, two EPPD officers used their service firearms when Mr. Williams
pointed what appeared to be a gun in the EPPD officers’ directions. The
EPPD officers made two trips to the Williams’ residence the day of the
shooting. Resp. Sealed Ex. 49, at 104 (Witness Sworn Statement of
Arthur Williams, Jr.’s Mother) [hereinafter “Ms. Williams’ Statement”];
Resp. Sealed Ex. 51, at 4 (SRT Report) [hereinafter “Williams SRT
Report”]. That morning, Mr. Williams’ mother entered an EPPD police
station to request help with transporting Mr. Williams to a behavioral
clinic. Ms. Williams’ Statement 105. The two had participated in a
domestic dispute that Mr. Williams’ mother attributed to her son’s
diagnosed bipolar disorder, depression, and schizophrenia. Id. at 104–
5. As a result, two EPPD officers visited the Williams’ residence “to
determine if [Mr.] Williams could be taken into custody under an EDO
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as no assault was alleged.” Williams SRT Report 4. After a brief
exchange with Mr. Williams, the EPPD officers determined that the
situation did not permit them to execute an EDO and the EPPD officers
left the Williams’ residence.18 Ms. Williams Statement 105; Williams
SRT Report 4.
Shortly thereafter, Mr. Williams’ mother called the EPPD and
reported that Mr. Williams had continued to act out at her once the two
EPPD officers left the Williams’ residence. Ms. Williams Statement
105. Additionally, Mr. Williams’ mother indicated that Mr. Williams
was holding what appeared to be a handgun, and she “heard shots like
caps, sounded like they were just going off.” Id. A dispatcher relayed
this report as “a[n] aggravated assault in progress . . . the subject had a
gun and that shots had been fired inside the home.” Williams SRT
Report 4. Subsequently, a number of EPPD officers responded to the
report, including the two who had just left the Williams’ residence. Id.
The two EPPD officers joined with the others to form a perimeter

The record is incomplete on how the EPPD officers made the decision
not to execute an EDO and the standard for seizures by which they
operated.

18

67

around the Williams’ Residence, as a third EPPD officer attempted to
speak with Mr. Williams, who was still inside. Id. at 4–5.
At some point, Mr. Williams exited the front door of the Williams’
residence and stood in the front yard, holding the same handgun his
mother had reported to the EPPD. Ms. Williams’ Statement 106. He
pointed the handgun at various EPPD officers, ignoring their
commands to drop the weapon. Id. (recalling that the EPPD officers
said “drop it at least more than five times”); Williams SRT Report 4. In
response, the two EPPD officers who had been involved in this matter
from the beginning each used their service firearms. Williams SRT
Report 4 (“[Mr.] Williams fell to the ground where he was immediately
secured” and the EPPD officers attempted to get him prompt medical
attention). Further investigation revealed that Mr. Williams had been
wielding an air pistol. Resp. Sealed Ex. 50, at 2 (Sworn Statement
Search Warrant Executed).
As with the previous instances, Plaintiffs have not provided any
additional evidence that would controvert the facts laid out in Mr.
Williams’ mother’s sworn statement and the EPPD Shooting Review
Team Report. Additionally, the statement appears to be consistent with
68

the report. Two EPPD officers arrived at the Williams’ residence to
assess whether they should execute an EDO on Mr. Williams. Having
determined that an EDO was inappropriate, the EPPD officers left the
Williams’ residence. Subsequently, the two EPPD officers returned to
the Williams’ residence in response to reports of a violent crime
involving a firearm. Then, Mr. Williams confronted the EPPD officers,
waving what appeared to be a handgun. The EPPD officers instructed
Mr. Williams multiple times to drop the handgun, instructions that Mr.
Williams ignored.
The Court is mindful of the low probability that the EPPD officers
could have known that the handgun was merely an air pistol.
Accordingly, the Court is of the opinion that it was objectively
reasonable for the two EPPD officers to use their service firearms to
neutralize the perceived deadly threat to themselves and their fellow
EPPD officers. Therefore, a reasonable jury could not determine that
the shooting death of Mr. Williams was part of a pattern of instances as
relevant to this case.
The Court does not intend to diminish the tragedies resulting
from the shooting deaths of Mr. Smith, Mr. Velasquez, Mr. Gandara,
69

and Mr. Williams. It is clear that each had their own personal
challenges, not just those expressed, but possibly others. It is also clear
that following a confrontation with law enforcement, these men
responded with a threat, or in the case of Mr. Velasquez an act, of
violence. The Court is sympathetic to Plaintiffs’ position that each of
these deaths might have been avoided had a CIT team been present to
de-escalate the situation. Arguably, it is possible that a CIT team
would have diminished the chances that each man would brandish a
weapon. Unfortunately, once these men resorted to perceived violence,
they arguably posed an imminent threat to EPPD officers. In each
circumstance, the EPPD officers responded with deadly force, to be
assessed pursuant to the objective reasonableness standard. Therefore,
pursuant to the laws of the Fifth Circuit, the Court considers each event
abstractly, limited to a few seconds, devoid of the larger context.
Furthermore, the Court does not question that all members of law
enforcement have the right to defend themselves and the public from
the threat of violence. One would be hard-pressed to challenge the
EPPD officer who chose to use her service firearm to save her fellow
EPPD officer from Mr. Velasquez; she acted after Mr. Velasquez
70

stabbed her colleague with a kitchen knife. Simultaneously, the Court
is mindful of the possibility that an officer could use “objectively
reasonable” force in response to a dangerous situation of the officer’s
own making. Bound by Fifth Circuit precedent, the Court cannot
consider such a circumstance as grounds for relief. Though reasonable
minds may disagree as a matter of judicial equity, the Court is of the
opinion that the law is clear. Having considered the evidence before it,
the Court concludes that the shooting deaths of Mr. Smith, Mr.
Velasquez, Mr. Gandara, and Mr. Williams were not the result of
constitutional violations as relevant to this case.19
iv.

A pattern of constitutional violations

The respective shooting victims in the above-stated instances acted
in a manner that insulates Defendant City of El Paso from scrutiny for
the EPPD officers potentially escalating actions in those cases.
Conversely, when considering the facts in the light most favorable to
Plaintiffs, the remaining instances of Daniel Rodrigo Saenz (2011),
Fernando Gomez (a.k.a. Mercedes de Marco) (2013), Daniel Ramirez

Additionally, the Court anticipates a ruling that any evidence of these
four instances for purposes of proving a pattern of constitutional
violations is inadmissible at trial.

19

71

(2015), and Francisco Ramirez (2016), involve EPPD officer conduct
that arguably increased the likelihood that EPPD officers would use
force in a manner that was not objectively reasonable. In each instance,
the victims did not present the kind of threat to EPPD officers that
would implicate the Fifth Circuit’s excessive force jurisprudence and
preclude a consideration of the EPPD officers’ prior conduct. Therefore,
these matters should permit Plaintiffs to proceed to trial on a Monell
liability claim predicated on the theory that Defendant City of El Paso
was deliberately indifferent when it failed to implement a CIT program.
A. Daniel Rodrigo Saenz
Regarding the shooting death of Daniel Rodrigo Saenz on March 8,
2013, an EPPD officer used his service firearm while Mr. Saenz was in
custody and not posing a threat that would warrant the use of such
force.20 The EPPD officer first interacted with Mr. Saenz in a holding
cell shortly after Mr. Saenz had been arrested for assault. Resp. Sealed

The Court is mindful that it presided over much of the subsequent
civil suit that Mr. Saenz’s family filed against Defendant City of El Paso
and the individuals involved. See Saenz v. Flores, EP-14-CV-244-DCG
(W.D. Tex. Sept. 27, 2019). Accordingly, the Court has taken great care
to only consider those facts presented for summary judgment, and
today’s Order is based solely on the record in this case.

20

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Ex. 18, at 76 (EPPD Internal Affairs Division Case Summary Report).
At the time, Mr. Saenz was calm and nonresponsive, giving a
supervising EPPD officer the “impression that he was under some form
of a narcotic or substance[;] under the influence of any medication.”
Resp. Sealed Ex. 19, at 81 (Shooting Review Board [hereinafter “SRB”]
Testimony of Supervising EPPD Officer). Additionally, Mr. Saenz was
partially unclothed because he had “urinated himself two to three
times.” Resp. Sealed Ex. 20, at 86 (SRB Testimony of Shooting EPPD
Officer). The EPPD officer helped transport Mr. Saenz from a distant
police command center to the downtown El Paso County Jail
[hereinafter “EPCDF”], during which time Mr. Saenz asked the EPPD
officer to “shoot him.” Resp. Sealed Ex. 24, at 8 (Notice of Termination
of Employment). “[Mr.] Saenz, at all relevant times, was double-cuffed
behind his back.” Id.
Soon thereafter, the EPCDF refused to accept Mr. Saenz because of
a head injury he sustained when he lunged at a door upon his arrival at
the facility. Id. The EPPD officer and a private security guard then
began to escort Mr. Saenz to a hospital for treatment. Id. The two had
to drag Mr. Saenz because he was unable or unwilling to walk as a
73

result of the head injury. Id. Once outside the El Paso County Jail, Mr.
Saenz resisted, falling to the ground while still in handcuffs. Id. After
a brief struggle, the EPPD drew his service firearm and shot Mr. Saenz
from a short distance. Id. at 9. Chief Allen determined that the EPPD
officer’s use of force was not objectively reasonable. Id. at 10.
It is clear that Mr. Saenz was mentally unstable, physically
incapacitated, and could not pose a serious threat of harm to the EPPD
officer. Rather than de-escalate the situation, the EPPD officer
responded to the slightest amount of resistance with deadly force. Chief
Allen’s subsequent determination that the EPPD officer acted outside of
policy does not negate the possibility that the outcome may have been
different had there been a CIT team to pacify Mr. Saenz and gain his
cooperation at any point that day. Therefore, a reasonable jury could
determine that the shooting death of Mr. Saenz was part of a pattern of
constitutional violations as relevant to this case.
B. Fernando Gomez (a.k.a. Mercedes de Marco)
Regarding the arrest, tasing, and death of Fernando Gomez (a.k.a.
Mercedes de Marco) on October 13, 2013, an EPPD officer tased Mr.
Gomez who was on the ground, in handcuffs, and resisting arrest. In
74

the early-morning hours, EPPD officers responded to a report of “family
violence in progress.” Resp. Sealed Ex. 27, at 21 (Witness Sworn
Statement of Responding Officer). The first EPPD officer to arrive
observed Mr. Gomez standing outdoors screaming. Id. Earlier that
evening, a friend of Mr. Gomez noticed that he was “acting a little
strange and paranoid.” Resp. Sealed Ex. 26, at 18 (Witness Sworn
Statement of Friend). When the first EPPD officer asked if Mr. Gomez
needed help, Mr. Gomez responded with what the EPPD officer
described as “a thousand yard stare and took off running . . . toward the
office door of [a nearby hotel.]” Resp. Sealed Ex. 27, at 21. Once at the
door, Mr. Gomez “continued to act erratically by screaming, breathing
heavily, clawing at the glass of the door, and pacing quickly in front of
the door.” Id.
Subsequently, more EPPD officers arrived and attempted to take
Mr. Gomez into custody. Id. at 22. After initially resisting before the
EPPD officers were able to handcuff them, Mr. Gomez then “became to
a degree compliant” before he “began to scream and attempt to break
away from the officers.” Id. Next, Mr. Gomez “let his body go limp” and
dropped to the ground, continuing to resist by “kicking his legs,
75

swinging his head, and shifting his body weight.” Id. A large
individual, “it took about six or seven officers to pick up Mr. Gomez due
mainly to his size and also his combativeness which made it almost
impossible.” Id.
The second relevant EPPD officer in this matter chose to threaten
Mr. Gomez with the use of force to coax their compliance. Resp. Sealed
Ex. 28, at 27–28 (EPPD Internal Affair Division, Statement of Second
Officer) (“I thought that by Tazing Mr. Gomez, that we would get some
compliance and be able to place him in the patrol unit with less effort.”).
During a subsequent investigation of this incident, the second EPPD
officer stated that he “had dealt with him on other occasions where Mr.
Gomez had the same behavior so I just assumed this was just another
encounter with him.” Id. The second EPPD officer warned Mr. Gomez
three times that if he refused to comply, the second EPPD officer would
tase him. Resp. Sealed Ex. 27, at 22. According to the first EPPD
officer,Mr. Gomez responded “you are going to have to taser me.”

76

Subsequently, the second EPPD officer tased Mr. Gomez twice while he
was still lying on the ground in handcuffs.21 Id.
Similar to the matter of Mr. Saenz, Mr. Gomez was clearly in some
form of mental distress from the moment the first EPPD officer arrived
at the scene. He behaved erratically, both verbally and physically. In
response, EPPD officers chose to physically restrain Mr. Gomez rather
than de-escalate the situation by other means. Mr. Gomez reacted to
the EPPD officers’ attempts poorly, resisting arrest and posing a degree
of physical danger. By the time the second EPPD officer chose to tase
Mr. Gomez, he was lying on the ground in handcuffs. To the second

Mr. Gomez died in custody a short time later. Resp. Sealed Ex. 29, at
35 (EPPD Incident Investigation Report). An autopsy determined his
cause of death to be “cocaine toxicity.” Mot. Ex. A-6 (Autopsy Report),
at 9, May 1, 2019, ECF No. 143-8. Accordingly, the record indicates
that Mr. Gomez’s death is not the result of the second EPPD officer’s
use of a taser. Therefore, his death is irrelevant to the Court’s analysis
in this case.
Simultaneously, the autopsy report indicates that Mr. Gomez had
“small abrasions” on the back likely caused by the taser. Id. at 8.
Courts have held that at least “some injury” is necessary to serve as the
basis of an excessive force claim, to be considered in the context of
whether the force “is constitutionally permissible under the
circumstances.” Ikerd v. Blair, 101 F.3d 430, 434–35 (5th Cir. 1996)
(citing Hudson v. McMillian, 503 U.S. 1, 7 (1992)). Accordingly, for
purposes of summary judgment, the Court concludes that Mr. Gomez
suffered an injury from the use of force.

21

77

EPPD officer’s credit, it appears that Mr. Gomez continued to physically
resist. Simultaneously, the second EPPD officer had interacted with
Mr. Gomez in the past and stated that he tased Mr. Gomez only after
“becom[ing] fatigued” from attempting to take him into custody by
lesser means. Resp. Sealed Ex. 28, at 27.
Furthermore, multiple EPPD officers were still present to assist,
and this use of force might have been in a manner that a reasonable
jury could determine was out of a desire for expedience, not as a
reasonably objective response to an “immediate threat.” See Ramirez v.
Martinez, 716 F.3d 369, 377–78 (5th Cir. 2013) (holding that a detainee
may not have posed an immediate threat once he was handcuffed, even
if he resisted to some extent). The second EPPD officer did so with the
belief that this was a routine interaction with Mr. Gomez. Once again,
when faced with resistance while responding to a mental health crisis,
an EPPD officer resorted to using his taser rather than de-escalating
the situation. Accordingly, the Court is of the opinion that a reasonable
jury could determine that the tasing of Mr. Gomez was a constitutional
violation that is part of a pattern of instances relevant to this case.

78

C. Daniel Ramirez
Regarding the tasing and subsequent death of Mr. Daniel Ramirez
[hereinafter “Mr. Daniel Ramirez”]22 on June 23, 2015, an EPPD officer
deployed his taser while Mr. Daniel Ramirez attempted suicide by
hanging from a basketball hoop. That night, an EPPD officer arrived at
the Ramirez’s residence in response to a report of a suicide in progress.
Resp. Sealed Ex. 42, at 90 (Witness Sworn Statement of Responding
Officer). During the subsequent investigation, the EPPD officer stated
that the report indicated the “subject was going to be in the back yard
. . . [and] had weapon.” Id. Upon entering the backyard with his
service firearm drawn, the EPPD officer observed Mr. Daniel Ramirez
hanging from a basketball hoop with a rope around his neck. Id. Both
of Mr. Daniel Ramirez’s hands were squeezed tightly around the rope,
and “he was standing on the tip of his toes.” Id. at 90–91. The EPPD
officer told the investigator that he instructed Mr. Daniel Ramirez to
show his hands because it was difficult to determine if he was holding a

The Court shall refer to both Mr. Daniel Ramirez and Mr. Francisco
Ramirez by their full names to differentiate between the two instances.

22

79

weapon in his palms. Id. Mr. Daniel Ramirez did not follow the EPPD
officer’s instructions. Id.
Next, the EPPD officer began to approach Mr. Daniel Ramirez. Id.
As he later described to the investigator, the EPPD officer assessed the
situation and noted the following conditions: (1) he had been advised
that Mr. Daniel Ramirez may be armed; (2) it was dark in the backyard;
(3) Mr. Daniel Ramirez refused to show his hands; and (4) Mr. Daniel
Ramirez may kick the EPPD officer if in range. Id. Accordingly, the
EPPD officer holstered his service firearm and drew his taser. Id. Once
he was within five feet of Mr. Daniel Ramirez, the EPPD officer fired
his taser into Mr. Daniel Ramirez’s abdomen. Id. Mr. Daniel Ramirez
was still hanging from the basketball hoop. Id. The EPPD officer then
struggled to remove the noose from the now limp Mr. Daniel Ramirez,
who died shortly thereafter. Id.
When considering the EPPD officer’s own description of the events
that precipitated Mr. Daniel Ramirez’s death, it is clear to the Court
that a reasonable jury could determine that the EPPD officer’s actions
were not objectively reasonable. Arguably, it should have been obvious
to the EPPD officer that Mr. Daniel Ramirez was in a most dire mental
80

state; he was attempting to end his own life. Additionally, given the
likelihood that Mr. Daniel Ramirez was primarily focused on the task at
hand, it is improbable that he contemplated surprising the EPPD officer
with a concealed weapon or kick. At first, the EPPD officer was likely
at a sufficient distance where such a threat was limited, if not
impractical. Furthermore, the EPPD officer made the autonomous
decision to approach Mr. Daniel Ramirez and tase him, rather than
attempt to talk him down from the proverbial ledge, or in this case, the
basketball hoop. After due consideration, the Court is of the opinion
that a reasonable jury could determine that the EPPD officer’s decision
to use his taser was excessive. Accordingly, the matter of Mr. Daniel
Ramirez could be one of a pattern of constitutional violations as
relevant to this case.
D. Francisco Ramirez
Regarding the shooting of Mr. Francisco Ramirez on November 5,
2016, an EPPD officer used his service firearm when he observed Mr.
Francisco Ramirez behave erratically while holding a boxcutter. That
afternoon, an EPPD officer responded to a request to conduct a welfare
check of a man who had expressed thoughts of suicide. Resp. Sealed Ex.
81

54, at 19 (Event Chronology). Arriving at Mr. Francisco Ramirez’s
parents’ residence, the EPPD officer approached the backyard and
discovered Mr. Francisco Ramirez sitting on the back bumper of a
parked van. Resp. Sealed Ex. 58, at 115 (Witness Sworn Statement of
Responding Officer). The EPPD officer positioned himself behind a
dumpster near the van. Id. at 116.
The EPPD officer told investigators that Mr. Francisco Ramirez
was holding “a knife with a blue handle that appeared to be 8 inches in
his right hand . . . with his closed fist and making a rapid, jerking
motion, upward and downward as though he was practicing using it.”
Id. at 116. Later, the detective assigned to investigate the scene
discovered both a boxcutter with a blue handle and folding knife with
the blade extended. Resp. Sealed Ex. 59, at 120 (Incident Investigation
Report, Scene Detective). Additionally, an EPPD sergeant told
investigators that the knife belonged to, and was dropped in error by,
another EPPD officer at the scene.23 Resp. Sealed Ex. 60, at 124

Though the Court finds it concerning that these facts suggest that an
EPPD officer may have planted a folding knife at the scene, at summary
judgment the Court must presume that Mr. Ramirez was holding a
boxcutter. Furthermore, the Court is uncertain of the Federal Rules of

23

82

(Witness Sworn Statement of EPPD Sergeant). Subsequently,
investigators determined that Mr. Francisco Ramirez had been holding
a box cutter. Resp. Sealed Ex. 64, at 137 (Supplemental Report).
Ultimately, the EPPD officer fired his service firearm three times,
though the circumstances are in dispute. The EPPD officer claimed
that Mr. Francisco Ramirez ignored verbal commands to drop the
boxcutter, began to approach, then lunged, thrusting the boxcutter
towards the EPPD officer. Resp. Sealed Ex. 58, at 116. Mr. Francisco
Ramirez’s brother told investigators that Mr. Francisco Ramirez “was
holding something to his neck and he was telling the officer to leave”
and that he was “standing on the other side of the van towards the
back” as the EPPD officer remained by the dumpster when he used his
service firearm. Resp. Sealed Ex. 57, at 111 (Witness Sworn Statement
of Mr. Francisco Ramirez’s Brother). Furthermore, Mr. Francisco
Ramirez’s brother makes no mention of the assault that the EPPD
officer describes. One bullet made contact with Mr. Francisco Ramirez,

Evidence Rule 403(b) implications for Defendant City of El Paso should
Plaintiffs attempt to admit evidence of the folding knife.
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just below his left eye, before travelling through his mouth, neck, and
shoulder. Resp. Sealed Ex. 59, at 120.
When considering the facts in the light most favorable to Plaintiffs,
the EPPD officer used his service firearm from a distance while Mr.
Francisco Ramirez stood still with a boxcutter held to his neck. The
EPPD officer did so with the understanding that Mr. Francisco Ramirez
was suicidal, and apparently on the cusp of taking his own life. Similar
to the circumstances of the tasing of Mr. Daniel Ramirez, the EPPD
officer chose to use his service firearm rather than de-escalate the
situation. Furthermore, Mr. Francisco Ramirez did not pose the type of
imminent threat that would make the EPPD officer’s use of force
objectively reasonable. Therefore, the Court is of the opinion that a
reasonable jury could determine that Mr. Francisco Ramirez’s death is
one of a pattern of constitutional violations as relevant to this case.
Should Plaintiffs succeed in proving that the matters of Mr. Daniel
Saenz, Mr. Gomez, Mr. Daniel Ramirez, and Mr. Francisco Ramirez are
instances of unconstitutional excessive use of force, Plaintiffs will have
presented substantial evidence that the EPPD relied too frequently on
tasers and handguns when responding to mental health crises. A
84

reasonable jury could conclude that EPPD officers chose force because a
CIT response was not an option. These four instances could show a
pattern of constitutional violations.
As the Court articulated when it denied Defendant City of El
Paso’s Motion to Dismiss, these instances “evince a strikingly similar
pattern of force.” Mem. Op. & Order Den. Def. City of El Paso’s Mot. to
Dismiss 22, Oct. 6, 2017, ECF No. 46. Therein, the Court noted that
when EPPD officers respond to reports that individuals are suffering
from mental health crises, they “almost immediately resort to force
without attempting any sort of de-escalation.” Id. at 23. “They either
tase the individual . . . or shoot him or her with their service weapons.”
Id. After extensive discovery, the Court concludes that Plaintiffs have
produced sufficient evidence to support the pattern claimed in their
Complaint.
Furthermore, Chief Allen may have been able to recognize this
pattern after the deaths of Mr. Saenz and Mr. Gomez. He was aware of
concerns the community had regarding EPPD responses to mental
illness, as well as other cities’ implementation of CIT teams.
Accordingly, a reasonable jury could determine that these two deaths
85

should have put Chief Allen on notice that a change was necessary,
such that he was deliberately indifferent to the risk of constitutional
violations by the time of Mr. Salas-Sanchez’s death. Additionally, the
subsequent tasing death of Mr. Daniel Ramirez and the shooting of Mr.
Francisco Ramirez support the conclusion that not only was Chief Allen
deliberately indifferent at the time of Mr. Salas-Sanchez’s death, he
continued to be deliberately indifferent thereafter.
Accordingly, the Court concludes that Plaintiffs have satisfied the
Monell requirements to survive summary judgment. The Court finds
that a reasonable jury could determine that (1) Defendant City of El
Paso chose to not implement a CIT program; (2) a CIT program may
have prevented the unconstitutional use of force against Mr. SalasSanchez; and (3) Chief Allen supported this decision while deliberately
indifferent to the risk that EPPD officers would use excessive force
against mentally ill individuals suffering from a mental health crisis.
Therefore, after due consideration, the Court is of the opinion that
Defendant City of El Paso’s Motion should be denied as to its decision to
not create a dedicated mental health unit, such that it could serve as a
basis for Plaintiffs’ claims for relief.
86

B. Failure to Properly Investigate and Discipline Officers
Involved in Excessive Use of Force Cases
Plaintiffs’ second theory alleges that the EPPD, and Chief Allen
specifically, failed to properly investigate and discipline officers who
may have used excessive force. As a result, Defendant City of El Paso
had an “unwritten policy of leniency . . . that emboldened officers to
engage in the unconstitutional conduct” that led to Mr. Salas-Sanchez’s
death. Resp. 50. In support of their argument, Plaintiffs advance a
number of Chief Allen’s alleged decisions in support of this policy:
(1) protecting and failing to discipline former EPPD Officer Jorge
Gonzalez [hereinafter “Mr. Gonzalez”] despite him having a history of
misconduct; (2) failing to implement proper investigative techniques to
ensure that the SRB24 has a complete record to rely on when making a
determination on whether a use of force was excessive; (3) preventing
the El Paso District Attorney’s Office from participating in EPPD
investigations of officer-involved shootings; (4) failing to properly use an
internal system to monitor allegations of the excessive use of force; and

24 EPPD

Shooting Review Board.
87

(5) failing to discipline the EPPD officers involved in the pattern of
cases identified in the prior section of this Order. Resp. 50–61.
Courts have held that a failure to investigate or discipline can be
the basis for Monell liability. See McGregory v. City of Jackson,
335 Fed. Appx. 446, at *3 (5th Cir. 2009) (considering a claim that the
Jackson City Police Department’s failure to investigate and discipline
officers, as well as protect officers through a “code of silence,” permitted
the excessive use of force “without fear of repercussions”); Piotrowksi,
237 F.3d at 581 (considering an instance where the Houston Police
Department did not act on a report of officer misconduct). The Court’s
analysis is similar to that conducted above for the failure to implement
a dedicated mental health unit. Accepting that Chief Allen is a
policymaker directly overseeing investigations and discipline,25
Plaintiffs must also allege: (1) a policy of failing to investigate or
discipline, that (2) was the moving force causation for constitutional
violations against Mr. Salas-Sanchez, and (3) the risk of which Chief
Allen was deliberately indifferent to when he adopted the policy.

25

See supra pp. 19–20.
88

a. Policy
As stated above, Plaintiffs present five grounds in support of their
argument that Chief Allen’s failure to investigate or discipline EPPD
officers who engage in the unconstitutional use of force amounted to a
policy sufficient to confer Monell liability in this case. Accordingly, the
Court shall consider each of these in turn, concluding that in the
totality, Plaintiffs have alleged facts that could permit a reasonable jury
to determine that such a policy did exist.
i.

Former EPPD Officer Jorge Gonzalez

Plaintiffs argue that Chief Allen “failed to impose reasonable and
required discipline” on Mr. Gonzalez, a former EPPD officer with
numerous misconduct complaints over the course of nine years. Resp.
21. Furthermore, Chief Allen made public statements in support of Mr.
Gonzalez shortly after an El Paso grand jury returned an indictment
against Mr. Gonzalez related to a shooting incident on April 1, 2010.
Id. at 26, 28. Therefore, Plaintiffs contend, Chief Allen “allowed an
officer with such a demonstrated history of excessive force violations to
stay on the job . . . [and] sent a message of leniency to his officers.”
Surreply 4 n.2. In response, Defendant City of El Paso argues that
89

there is not sufficient evidence to support the proposition that Chief
Allen protected or failed to discipline Mr. Gonzalez. Reply 11. In the
alternative, even if Chief Allen had done such things, the evidence does
not indicate that his actions fostered an expectation of leniency amongst
other EPPD officers. Id.
Mr. Gonzalez has a colorful record of alleged misconduct. See
Resp. Sealed Ex. 67 (Cases Involving Officer Jorge Gonzalez) (appearing
to be a demonstrative aid purporting to list every allegation and
outcome in Mr. Gonzalez’s tenure). Additionally, the Court is mindful
that Plaintiffs have not provided evidence of how many complaints
would be considered “typical” for an EPPD officer, a number that should
ideally be “zero.” Simultaneously, the Court presumes that it is
uncommon for an off-duty EPPD officer to have multiple excessive force
complaints. As Plaintiffs represent, “[Mr.] Gonzalez was the first officer
indicted in an off-duty officer involved shooting in El Paso in almost 30
years.” Resp. 21 (citing Resp. Ex. 3, at 67 (Oral Dep. of Gregory K.
Allen)). This status distinguishes Mr. Gonzalez from other officers,
providing possible insight into Chief Allen’s response to high-profile
instances involving the alleged excessive use of force.
90

Furthermore, the Court concludes that not every instance
involving Mr. Gonzalez’s alleged misconduct may be relevant in the
context of this case. For example, possible misconduct involving
intraoffice antisocial behavior may not be probitive regarding how Chief
Allen considers misconduct involving weapons. See Resp. 26 (citing
Resp. Sealed Ex. 68 (EPPD Supervisor’s Daily Log, Internal
Investigation) (describing an incident between Mr. Gonzalez and a
fellow EPPD officer)). For purposes of summary judgment, the Court
considers the facts of, and Chief Allen’s response to, the following
instances to be particularly persuasive: (1) the April 1, 2010, shooting
of Andres Cortez, id. at 24–25; (2) the March 3, 2011, shooting at a
motorist on the University of Texas El Paso [hereinafter “UTEP”]
campus, id. at 25–26; and (3) the January 21, 2012, brandishing of a
firearm at Johnny Reyes, id. at 26–27.26

The Court anticipates that the Parties shall file motions in limine to
address the admissibility of the remaining evidence regarding Mr.
Gonzalez.
26

91

A. Andres Cortez
Regarding the shooting of Andres Cortez on April 1, 2010, Mr.
Gonzalez, while off-duty, shot Mr. Cortez after a traffic incident,
paralyzing Mr. Cortez from the neck down. Resp. Sealed Ex. 68, at 81–
82 (Witness Sworn Statement of Responding Paramedic), June 28,
2019, ECF No. 180-2; id. at 87 (Summary & SRB Findings). While Mr.
Gonzalez was in his personal car, travelling with his wife,27 and stopped
at a red light, Mr. Cortez rear-ended Mr. Gonzalez’s vehicle. Resp.
Sealed Ex. 68, at 89 (Summary & SRB Findings). Next, the Gonzalez’s
exited their vehicle and approached Mr. Cortez. Id. Shortly thereafter,
Mr. Cortez accelerated his vehicle, in what Mr. Gonzalez and
independent witnesses described at Ms. Gonzalez’s general direction.
Id. at 90. In response, Mr. Gonzalez used his personal firearm. Id.
Witnesses could not confirm that Mr. Gonzalez had identified himself as
an EPPD officer before using deadly force. Id.
After investigating, the SRB concluded that Mr. Gonzalez had
acted within policy when he used force to prevent Mr. Cortez from

Mr. Gonzalez’s wife was also an EPPD officer at the time, and also
off-duty. Resp. Sealed Ex. 68, at 89 (Summary & SRB Findings).

27

92

driving into Ms. Gonzalez. Resp. 25 (citing Resp. Sealed Ex. 68, at 86–
96 (Summary & SRB Findings)). Conversely, an El Paso grand jury
considered the same event and entered a two-count indictment for
aggravated assault with a deadly weapon. Id. at 26 (citing Resp. Ex. 41,
at 132–33 (Indictment)). Shortly after the indictment, Chief Allen made
public comments that he wanted to “reassure the department, the
personnel and the officers on the street, that we will stand behind them
regardless of the circumstances, of the findings of a grand jury.” Resp.
28 (citing Resp. Ex. 75, at 153 (KVIA Article, July 22, 2011)).
B. Shooting at a Motorist
Regarding the shooting on March 3, 2011, Mr. Gonzalez shot at a
motorist on the UTEP campus despite being unable to see into the
motorist’s vehicle. Resp. 25 (citing Resp. Sealed Ex. 68, at 102–05
(Sworn Statement of Mr. Gonzalez). Plaintiffs have not provided
evidence of the events leading up to the shooting, though Mr. Gonzalez’s
statement to SRB investigators suggests that he had responded to an
alert involving reckless driving or an altercation. Resp. Sealed Ex. 68,
at 104 (“I didn’t know if she was a victim or a subject at that time but
her actions of yelling that the subject was crazy and drunk led me to
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believe that she was more of a victim th[a]n a threat.”). At some point,
Mr. Gonzalez approached the motorist’s vehicle from behind on foot. Id.
at 103.
Standing just seven or eight feet to the rear, Mr. Gonzalez drew
his service firearm and shot at the driver’s side of the vehicle. Id. at
104. Mr. Gonzalez said he was “aiming at the driver” despite not being
able to see into the vehicle. Id. Additionally, Mr. Gonzalez stated that
he did not believe the motorist “was going to use a weapon, other than
the vehicle, to harm [him]” and that Mr. Gonzalez was concerned that
the motorist would “drive forward away from [him].” Id. After an
investigation, Chief Allen accepted the SRB’s recommendation that Mr.
Gonzalez had acted outside of policy. Resp. 25 (citing Resp. Sealed Ex.
68, at 107 (SRB Incident Evaluation Report)). Mr. Gonzalez received a
forty-hour suspension that Chief Allen reduced to twenty-eight hours,
all of which Mr. Gonzalez was able to satisfy by forfeiting vacation time.
Id. at 25–26 (citing Resp. Sealed Ex. 68, at 106 (Settlement
Agreement)).

94

C. Johnny Reyes
Regarding the August 4, 2013, brandishing of a firearm, the offduty Mr. Gonzalez pointed a gun “point blank” in Johnny Reyes’s face
after the two narrowly missed a vehicular collision. Resp. Sealed Ex.
68, at 136–38 (Witness Sworn Statement of Johnny Reyes). Mr.
Gonzalez followed Mr. Reyes into a Walmart parking lot after the near
miss. Id. at 148 (Sworn Statement of Mr. Gonzalez). Later, Mr. Reyes
told investigators that Mr. Gonzalez was screaming at him, and had not
announced himself as a police officer. Id. at 137. Mr. Reyes admitted
that he brandished a knife in self-defense, though claimed that he
dropped it once Mr. Gonzalez “pulled out his gun and said ‘El Paso
Police.’” Id. Conversely, Mr. Gonzalez told investigators that he was
standing at least ten feet away from Mr. Reyes but described Mr. Reyes
as a noncompliant aggressor who refused to drop the knife as he walked
towards Mr. Gonzalez. Id. at 149–50. Subsequently, Chief Allen agreed
to suspend any investigation or determination until “twenty business
days following the disposition of the [Andres Cortez] criminal case.”
Resp. Sealed Ex. 68, at 124 (Tolling Agreement).

95

When considered in the light most favorable to Plaintiffs, the
evidence presents an EPPD officer who is quick to use a firearm. Be it
in an act of off-duty road rage, or when responding to a reported crime,
Mr. Gonzalez does not appear to think twice before brandishing a
weapon. Additionally, Chief Allen allowed Mr. Gonzalez to continue to
serve with the EPPD after each of these events. Chief Allen did so
despite overwhelming evidence that Mr. Gonzalez was not deterred
from using his firearm on more than one occasion. Furthermore, Chief
Allen publicly supported Mr. Gonzalez after the indictment related to
the shooting of Andres Cortez. Accordingly, a reasonable jury could
conclude that Chief Allen set the expectation that an EPPD officer could
use his or her firearm without fear of serious repercussion.
Defendant City of El Paso suggests that the Court should consider
that these instances do not involve individuals suffering from a mental
health crisis. See Reply 9 (regarding the shooting of Mr. Cortez, though
applicable to all three instances). After due consideration, the Court
rejects this argument. Evidence of how Chief Allen responds to
allegations of excessive force generally are inherently relevant to how
Chief Allen responds to allegations of excessive force against mentally
96

ill individuals specifically. A reasonable jury could consider the
evidence presented and conclude that Chief Allen acts consistently
regardless of whether the matter involves a mental health crisis.
Considering the evidence in the light most favorable to Plaintiffs, such a
conclusion could support a jury determination that Chief Allen failed to
investigate or discipline EPPD officers accused of using excessive force.
Additionally, Defendant City of El Paso argues that Mr.
Gonzalez’s record should be interpreted as “a pattern of progressive
discipline, taking into account, the facts and circumstances of each
allegation and the findings associated with each allegation.” Reply 10.
The Court is of the opinion that it would be improper for it to make a
subjective interpretation of the facts, not an objective one grounded in
law. Rather, Defendant City of El Paso will have the opportunity to
explain to the jury how it may consider Mr. Gonzalez’s record.
Furthermore, Defendant City of El Paso presents evidence that
Chief Allen has “previously terminated officers for misconduct . . . [and]
disciplined 17 officers.” Mot. 32 (citing Mot. Sealed Ex. B, Attach. B-4,
May 1, 2019, ECF No. 144-2). Curiously, Defendant City of El Paso’s
exhibit only contains four instances, one of which the Court is to
97

exclude from the record. See id. (stating that Mot. Sealed Ex. B, Attach.
B-4 is “offered only as to incidents prior to April 29, 2015”). The
remaining three each involve different EPPD officers who used less
than lethal force, and penalties that exceeded those Chief Allen gave to
Mr. Gonzalez. Mot. Sealed Ex. B, Attach. B-4 (first officer suspended
126 hours for punching a suspect; another officer suspended eighty
hours for striking a detainee in the face while she was handcuffed on
the ground; and a third officer terminated for pushing a handcuffed
detainee into a wall and then lying to a supervisor that it was in selfdefense). This evidence, though relevant to determining Chief Allen’s
approach to discipline, does not preclude a finding that Chief Allen fails
to effectively discipline EPPD officers. A reasonable jury could consider
this evidence and decide that Chief Allen has a history of unwarranted
leniency for EPPD officers involved in the use of deadly force.
ii.

Failing to Implement Proper Investigative Techniques

Next, Plaintiffs argue that “the manner in which [the] EPPD
investigates officer-involved shootings further serves to insulate officers
from discipline” creating an environment where “officers feel[] free to
engage in excessive force without punishment.” Resp. 54. This policy
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results from investigations Plaintiffs characterize as “far below
recognized standards.” Id. Specifically, the EPPD: (1) does not
separate EPPD officers to prevent them from communicating during the
investigation; (2) investigates all shootings as assaults on the EPPD
officer, thereby “identifying the shooting officer as the victim and the
deceased or person shot as the suspect”; and (3) fails to consider the
testimonies of non-officer witnesses who contradict EPPD officers’
versions of events. Resp. 30. Supporting these conclusions, Plaintiffs’
expert witness Mr. Ken Katsaris reviewed all evidence on the record
regarding the EPPD’s investigative practices, both generally and in Mr.
Salas-Sanchez’s death specifically.28 Resp. Ex. 77, at 160–73 (Sworn
Statement of Ken Katsaris), June 28, 2019, ECF No. 181-3.
First, after Mr. Salas-Sanchez’s death, the EPPD did not separate
Officers Gomez and Rivera, counter to “a recognized standard

The Court is mindful that much of Plaintiffs’ argument relies on the
expert opinion of Mr. Ken Katsaris, whose testimony is the subject of a
motion still pending before the Court. See Def.’s Mot. to Exclude or
Limit Ops. of W. Ken Katsaris, Dec. 31, 2019, ECF No. 229.
Additionally, Mr. Katsaris’s deposition that is the subject of said Motion
is not part of the Summary Judgment record. Accordingly, the Court
concludes that it may consider Mr. Katsaris’s opinions as presented in
Plaintiffs’ Response and Surreply.
28

99

nationwide in officer involved shootings.” Id. at 163. Failing to
separate witness officers may “have the effect of compromising the facts
and findings to allow for an impartial determination of each officer’s
role and view at the scene.” Id. at 164. Additionally, Mr. Katsaris is of
the opinion that the evidence indicates that the EPPD only provides the
testimony of EPPD officer witnesses in its presentation to the SRB. Id.
at 170; see Resp. 32 (“At the presentation before the SRB, the SRT only
presented the officers’ testimony. . . . This was testimony given after the
officers were able to regroup immediately after Erik was shot.”
(citations omitted)). When considered in the light most favorable to
Plaintiffs, a reasonable jury could conclude that the EPPD departed
from a standard practice and compromised excessive force
investigations.
Second, the EPPD investigated Mr. Salas-Sanchez’s death as an
assault on a police officer, which Mr. Katsaris suggests “would impact
the implementation of the standard protocols and investigative
inquiry/evidence evaluation for officer involved shootings.” Id. at 164.
Accordingly, the EPPD’s investigation would have been focused on
“building a case against Mr. Salas-Sanchez” rather than investigating
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matters “directly relevant to the officer involved shooting.” Id. at 165.
For example, Mr. Katsaris notes that the EPPD did not investigate a
cell phone found next to Mr. Salas-Sanchez’s body, failed to memorialize
in writing a conducted blood splatter analysis that might have indicated
Mr. Salas-Sanchez was shot in the back, and submitted a false report to
the Texas Attorney General’s office claiming that Mr. Salas-Sanchez
was shot in the chest. Id. Considering that this evidence did not make
it to the SRB, Mr. Katsaris concluded that “the entirety of the
investigative efforts appear to be conducted in a manner consistent with
a finding favorable to Officer Gomez but are inconsistent with proper
protocols in an officer involved shooting.” Id. at 167–68. Once again,
when viewing the facts in the light most favorable to Plaintiffs, a
reasonable jury could conclude that this investigative approach
prevented the EPPD from conducting a proper and unbiased
investigation.
Third, Plaintiffs allege that the EPPD did not gather sufficient
evidence to help resolve witness contradictions or provide such evidence
to the SRB. Resp. 32–33. For example, Plaintiff Sanchez and her
daughter witnessed the incident, but the SRB was not provided with
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their testimony. Id. at 33. Mr. Katsaris concluded that these decisions
contributed to the SRB’s determination that Mr. Gomez’s use of force
was within policy regardless of the investigation’s “clear failure to test
the officers’ and witnesses’ testimony against the evidence.” Resp. Ex.
77, at 167. Furthermore, in the shooting of Mr. Francisco Ramirez,
multiple non-officer witnesses contradicted the shooting EPPD officer’s
claims that he used his service firearm in self-defense. Id. at 170.
Additionally, Mr. Katsaris is of the opinion that, “no effort was made to
reconcile these very disparate accounts,” despite the shot pattern
evidence not supporting the EPPD officer’s story. Id. Mr. Katsaris
believes the failure to present contradictory testimony “narrows the
focus of the board members” and limits evidence, creating “the high
potential for bias, misleading and false assessment.” Id. When
considering these facts in the light most favorable to Plaintiffs, a
reasonable jury could conclude that the EPPD’s failure to collect
contradicting testimony and present it to the SRB undermines the
investigatory process.
Defendant City of El Paso argues that Plaintiffs “completely
ignore the fact that El Paso Police shootings are also investigated by the
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Texas Rangers.” Reply 12–13. Elaborating, Defendant City of El Paso
presents that the Texas Rangers’ involvement means a reputable,
independent agency conducted a “parallel investigation” of the shooting.
Id. Furthermore, Defendant City of El Paso suggests that Plaintiffs
needed to present evidence that Chief Allen was aware of any
shortcomings in the EPPD investigatory process. Id. at 12 Were there
shortcomings, Defendant City of El Paso asserts, Plaintiffs should have
evidence that the Texas Rangers expressed concerns to Chief Allen. Id.
at 13.
Once again, the Court concludes that it should refrain from
determining at summary judgment that the Texas Rangers’
involvement precludes the possibility that the EPPD may be liable for a
failure to investigate. Far from dispositive, the Texas Rangers’
investigation is but one piece of evidence for a jury to consider—to be
given weight and value as the jury deems appropriate.
iii.

Remaining Arguments

Plaintiffs identify that shortly after Mr. Gonzalez’s indictment,
Chief Allen made the decision to exclude the El Paso District Attorney’s
Office [hereinafter “DA’s Office”] from participating in EPPD
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investigations of officer involved shootings. Resp. 56 (citing Resp. Ex. 3,
at 40–45 (Deposition of Gregory K. Allen), June 28, 2019, ECF No. 1812). Significantly, the parties do not dispute that Chief Allen excluded
the DA’s Office. Instead, they present two different rationales behind
the decision, and disagree on the extent to which this decision had an
impact on the investigation’s efficacy.
Plaintiffs argue that Chief Allen excluded the DA because he was
“[o]utraged” at the indictment. Id.; see Resp. Ex. 3, at 41 (Chief Allen
explaining in his deposition that “how [the DA’s Office] came up to an
indictment was beyond us”). Identifying a portion of Defendant City of
El Paso’s Summary Judgment evidence “Affidavit of Gregory K. Allen”
(ECF No. 143-12) regarding the DA Office’s conclusions on Mr.
Gonzalez’s conduct, Plaintiffs contend that “Chief Allen was upset
because the [DA’s Office] did not concur with EPPD.” Resp. 57. (citing
Mot. Ex. B, at ¶ 24). Conversely, Defendant City of El Paso argues that
Chief Allen was “concerned with prejudice” in the DA’s Office. Reply 14
(citing Resp. Ex. 3, at 40–45). Additionally, Chief Allen stated that
supplanting the DA’s Office with the Texas Rangers “was the best
option to avoid political situations and have an unbiased investigation
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. . . . I would fully expect for a grand jury to indict an officer on a Texas
Ranger investigation that found probable cause for violation of the
criminal law.” Mot. Ex. B, at ¶ 23. Further, Defendant City of El Paso
asserts that Chief Allen did not have the power to prohibit the DA’s
Office from conducting their own investigation. Reply 14.
After due consideration, the Court is of the opinion that a fact
issue exists as to the motivation, purpose, and impact of Chief Allen’s
decision to exclude the DA’s Office from participating in EPPD
investigations of officer involved shootings. Particularly, the timing of
Chief Allen’s decision raises plausible concern that he may have been
motivated by a desire to prevent future indictments that he opposed. A
reasonable jury could decide that Chief Allen excluded the DA’s Office
to insulate EPPD officers from scrutiny and the possibility of receiving
consequences for their actions.
Additionally, Plaintiffs present that the EPPD failed to use an
internal affairs monitoring system to track investigations into EPPD
officer misconduct. Resp. 57–58. In 2010, Chief Allen implemented the
system known as “Blue Team” to address concerns about police
misconduct and excessive use of force. Id. at 57. Plaintiffs note that
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despite being available for use during the time of Mr. Salas-Sanchez’s
death, the EPPD had not been using it. Id. (citing Ex. 3, 17–18).
Defendant City of El Paso responds that Plaintiffs have not presented
sufficient evidence linking the failure to use Blue Team with any
constitutional violations. Reply 16–17. After due consideration, the
Court concludes that though not dispositive, the failure to use Blue
Team is probative regarding Chief Allen’s investigation and disciplinary
policy. The jury may determine what weight to give this evidence as
they consider Plaintiffs’ argument in its totality.29
Furthermore, Plaintiffs identify the investigations and
disciplinary actions taken in the pattern of EPPD shootings that the
Court has considered above.30 “In all cases presented, Chief Allen

Plaintiffs argue that Defendant City of El Paso’s Reply “attempts to
balkanize Plaintiffs’ evidence—failing to review the evidence as a whole
and instead arguing that each separate section of Plaintiffs’ failure to
discipline argument alone does not support Monell liability. Surreply 4.
The Court is of the opinion that Defendant City of El Paso’s Blue Team
argument is an example of Plaintiffs’ assertion.

29

See discussion supra Sections III.A.2.c.iv.A–D regarding the uses of
force against Mr. Daniel Rodrigo Saenz, Mr. Fernando Gomez, Mr.
Daniel Ramirez, and Mr. Francisco Ramirez. Additionally, the Court
does not consider it necessary to restate its conclusions for each cited
instance.

30

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decided not to impose discipline, excluding the Saenz case where the
summary judgment evidence shows he reluctantly imposed discipline.”
Resp. 59. Considering all facts in these cases in the light most
favorable to Plaintiffs, Chief Allen failed to impose discipline in the
tasings of Mr. Fernando Gomez and Mr. Daniel Ramirez, and the
shooting of Mr. Francisco Ramirez. Moreover, it is possible that Chief
Allen’s threshold for discipline requires there be significant public
scrutiny when an EPPD officer shoots and kills a handcuffed individual
in custody. The Court is of the opinion that many cases of excessive
force would fail to meet this subjective standard. Accordingly, the
Court concludes that a reasonable jury could determine that Chief
Allen’s investigative and disciplinary approach to similar instances of
police misconduct helps insulate EPPD officers from facing
consequences for the excessive use of force.
When considered in their totality, and taken in the light most
favorable to Plaintiffs, these facts are sufficient for a reasonable jury to
conclude that Chief Allen created a policy of failing to investigate or
discipline EPPD officers accused of using excessive force, sufficient to
establish a claim for Monell liability.
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b. Moving Force Causation
Plaintiffs have the difficult task of proving to a jury that Chief
Allen’s failure to investigate or discipline uses of excessive force was a
moving force of Mr. Salas-Sanchez’s death. Their argument attempts to
prove a negative, namely that the evidence suggests that EPPD officers
did not fear repercussions for their actions, such that they were
“emboldened” to use force. See Resp. 50. Therefore, had Defendant
Officers Gomez and Rivera been on notice that their use of force might
have consequences, they may have been more restrained before
deploying their service firearm or taser, respectively.
Having considered the law and the evidence, the Court is
uncertain that, to meet this moving force burden, Plaintiffs must prove
that EPPD officers were “emboldened” to use force. See Peterson,
588 F.3d at 852 (considering whether there was an “official policy of
condoning excessive force so as to hold the city liable” (emphasis
added)). Certainly, one could conclude that Mr. Gonzalez acted with
impunity as he continued to receive arguably inadequate discipline for
shooting people. Conversely, there is no evidence that the EPPD
officers in the other instances went on to use force again or encourage
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others to do so. Instead, a reasonable jury could look at the evidence
and determine that Chief Allen’s failure to discipline communicated to
the EPPD that these actions were not punishable, let alone
unconstitutional.
One could conclude that when faced with an officer involved
shooting, Chief Allen would communicate to the EPPD that either
(1) the EPPD officer had done nothing wrong, or (2) the EPPD officer’s
actions only warranted a minimal punishment. Accordingly, it is not
hard to imagine that Defendant Officers Gomez and Rivera may have
used force because Chief Allen failed to reinforce the right behavior
through discipline. Therefore, EPPD officers were “emboldened” to act
at least to the extent that they may have believed their use of force was
acceptable. A jury may not need to go the extra step and conclude that
Chief Allen had encouraged the behavior, or that Defendant Officers
Gomez and Rivera acted with the express expectation that they would
not be disciplined. Instead, a jury could possibly conclude that Chief
Allen’s policy may have created an environment devoid of caution
rather than purposely aggressive.

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The Court finds that there is sufficient evidence in the record to
support a Monell liability claim regarding a policy of inadequate
disciplinary decisions and investigative practices. After due
consideration, the Court is of the opinion that a reasonable jury could
conclude that Chief Allen’s failure to adequately investigate or
discipline EPPD officers involved in shootings was a moving force of Mr.
Salas-Sanchez’s death.
c. Deliberate Indifference
Plaintiffs argue that “as the final authority on all aspects of
discipline, Chief Allen cannot reasonably claim that he was unaware of
his own decisions not to discipline and the obvious consequence of those
decisions.” Resp. 60. As Defendant City of El Paso notes in its reply,
the Court has previously articulated that “[w]hat matters, and what
Plaintiffs ultimately need to prove, is that Chief Allen either explicitly
promoted or was deliberately indifferent to a policy of refusing to
discipline officers guilty of excessive force.” Reply 12 (quoting Mem. Op.
& Order Den. Def. City of El Paso’s Mot. to Dismiss 43, Oct. 6, 2017,
ECF No. 46). Furthermore, Defendant City of El Paso rearticulates this
standard as “whether Chief Allen knew that the unidentified deficient
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policies or procedures were insufficient, illegal, or improper and that
they were actually causing violations of the Constitution by [EPPD]
officers.” Id. The Court is of the opinion that Defendant City of El
Paso’s standard requiring actual knowledge is not an accurate
statement of law.
The Fifth Circuit has explained that “[w]here the city policymaker
knows or should know that the city’s police officers are likely to shoot to
kill without justification and without restraint . . . the city should be
liable when the inevitable occurs and the officers do so.” Grandstaff v.
City of Borger, 767 F.2d 161, 179 (5th Cir. 1985). Additionally, as
shown earlier in this Memorandum Opinion and Order, Chief Allen can
subjectively disagree with how to interpret EPPD officer conduct and
still satisfy the deliberate indifference standard when considering facts
in the light most favorable to Plaintiffs.31
The Court considers it an obvious consequence that failing to
investigate or discipline EPPD officers who are accused of using

See discussion supra Sections III.A.2.c. With each instance of
excessive use of force, Chief Allen was not moved to change EPPD
tactics and procedures. Therefore, whatever subjective interpretation
he may have had regarding the facts before him would appear to be
inconsistent with an objective analysis as a matter of law.

31

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excessive force would inevitably result in a constitutional violation of
excessive force. The facts indicate that Chief Allen may have so failed,
and his opinion that the vast majority of shootings did not violate EPPD
policy or the constitution has no bearing on whether he was deliberately
indifferent to the risks. Additionally, he continued to inadequately
investigate or discipline EPPD officers who used excessive force despite
evidence that a change was necessary. The summary judgment record
suggests that Chief Allen knew or should have known that Mr.
Gonzalez was an EPPD officer undeterred by prior punishment, of the
DA office’s decision to indict said officer, of complaints from the
community, and of a pattern of unconstitutional uses of force against
mentally ill individuals. If proven at trial, it is reasonable to conclude
that Chief Allen was deliberately indifferent as to a policy of failing to
investigate or discipline EPPD officers accused of using excessive force.
Defendant City of El Paso suggests that the Court should give
weight to the fact that an investigation was conducted at all. Mot. 30
(citing Peterson v. City of Fort Worth, 588 F.3d 838, 852 (5th Cir. 2009)).
As the Fifth Circuit explains, “conduct[ing] an internal investigation . . .
appear[s] to cut against the argument that the City condoned the use of
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excessive force.” Peterson, 588 F.3d at 852. Further, in the same
paragraph on which Defendant City of El Paso relies, the Peterson
Court opined that “vaguely rul[ing] most of its complaints “not
sustained” or “unfounded” is no assurance that these investigations
exonerate the City.” Id. Though the Peterson Court ultimately found in
the defendant municipality’s favor, its reasoning is highly applicable to
the case at bar. The Court is reluctant to conclude that the mere act of
conducting an investigation justifies exoneration if the EPPD has not
actually put in the work to earn to it.
Additionally, the Court recognizes that Chief Allen may be the
advocate that many individuals wish they had in their own workplace.
The evidence put forth suggests that Chief Allen is deeply loyal to his
officers, and believes that he has an obligation to support them when
they are accused of wrongdoing. Simultaneously, Chief Allen is
responsible for investigating any accusations and disciplining his
officers when they have in fact done wrong. It is possible that where
Chief Allen succeeds in supporting his officers, he fails in disciplining
them.

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After due consideration, the Court is of the opinion that when
taking the evidence in the light most favorable to Plaintiffs, a
reasonable jury could determine that the EPPD had a policy of failing to
adequately investigate and discipline EPPD officers involved in
shootings such that EPPD officers were insulated from the
consequences of using excessive force. Additionally, a reasonable jury
could find that such a policy was a moving force of Mr. Salas-Sanchez’s
death, and Chief Allen was deliberately indifferent to the risk that this
policy might result in constitutional violations. Therefore, the Court
concludes that it should deny Defendant City of El Paso’s Motion as to
its failure to investigate and discipline that provides a basis for one of
Plaintiffs’ Monell claims for relief.
C. Failure to Train Officers on How to Respond to a Person in
a Mental Health Crisis
Plaintiffs’ third theory for municipal liability is that Defendant
City of El Paso failed to train EPPD officers on how to respond to
mental health crises. Resp. 61. Whereas Plaintiff’s first theory focuses

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on systemic policy decisions regarding proper training, the third theory
focuses on the training EPPD officers received.32
The standard for establishing liability for failure to train is the
same standard for establishing municipal liability in general. Valle,
613 F.3d at 544 (citing Roberts, 397 F.3d at 293). “A plaintiff must
show that (1) the municipality’s training policy or procedure was
inadequate; (2) the inadequate training policy was a ‘moving force’ in
causing [a] violation of the plaintiff’s rights; and (3) the municipality
was deliberately indifferent in adopting its training policy.” Id. (citing
Sanders–Burns v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010)).
“Moreover, ‘for liability to attach based on an “inadequate training”
claim, a plaintiff must allege with specificity how a particular training

The Court is mindful that there is inherent overlap between these
two theories. For example, a jury determination that EPPD policy
required EPPD officers to have probable cause to initiate an EDO may
be negated through a factual showing that the EPPD officers were not
trained on the probable cause requirement. Additionally, the inverse is
true—an EDO policy that does not require probable cause may be
remedied through evidence that the EPPD officers were trained on
probable cause anyway. The Court is uncertain whether a jury
determination that Defendant City of El Paso is not liable on the theory
of failure to train would preclude liability on the theory that it had
failed to institute proper procedures to ensure a constitutional response
to mental health crises. It is possible that the third theory is a
necessary condition of the first.
32

115

program is defective.’” Goodman v. Harris Cty., 571 F.3d 388, 395 (5th
Cir. 2009) (quoting Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th
Cir. 2005)). After due consideration, the Court is of the opinion that
Plaintiffs provide sufficient facts at the summary judgment stage to
establish municipal liability for a failure to train.
a. Policy
Defendant City of El Paso argues that EPPD’s training program is
adequate because it complies with the standards provided by the Texas
Commission on Law Enforcement [hereinafter “TCOLE”]. Mot. 21.
TCOLE “is the Texas State agency responsible for certifying and
licensing law enforcement officers in Texas.” Mot. Ex. A, at 2 (Affidavit
of Peter Pacillas). In its Motion, Defendant City of El Paso describes
EPPD’s training program in detail, citing to the affidavits of Chief
Allen, Assistant Chief of Police Peter Pacillas [hereinafter “Assitant
Chief Pacillas”], and In-Service Training Coordinator Robert Zavala as
evidence. Mot. 4–8. According to Assistant Chief Pacillas, EPPD has,
including prior to the shooting of Mr. Salas-Sanchez, “maintained full
and complete compliance with TCOLE training mandates.” Id. at ¶ 26.

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Despite summary judgment evidence of EPPD compliance with
TCOLE, Plaintiffs argue that Defendant City of El Paso failed to
adequately train its officers when it failed to: (1) make sure that
Defendant Officers Gomez and Rivera received the necessary training;
(2) train its officers on how to properly execute mental health arrests;
and (3) train its officers on when one can make a warrantless entry into
a home to make a mental health arrest.33 Resp. 61–63. As a threshold
matter, it would appear that a determination that Defendant Officers
Gomez and Rivera did not receive the necessary training may prove one
or both of Plaintiff’s second and third arguments. Conversely, if the
jury determined that Officers Gomez and Rivera received what the
EPPD considered necessary training, Plaintiffs’ arguments for failure to
train on initiating an EDO or making a warrantless entry rely on the

Similar to the Court’s concerns in the previous footnote, one may
attempt to argue that a jury determination of municipal liability
predicated on the theory of failing to implement a CIT program is a
sufficient condition to prove the theory of failure to train. The Court is
of the opinion that there is a distinct difference between creating a
formal CIT program and training an individual officer. The inquiry is
not whether Defendant City of El Paso de facto failed to train EPPD
officers because it did not have a CIT program. Instead, this theory
pertains to whether Defendant City of El Paso knew the existing
training procedures were inadequate.
33

117

supposition that the training was pursuant to policies that were facially
unconstitutional. Resp. 61–62. Therefore, any factual support
indicating training within the scope of those policies would appear to
establish that there was a policy of failing to train EPPD officers.34
In its Motion, Defendant City of El Paso provides a detailed
explanation of the standard training that all EPPD officers are required
to participate in, whice includes “1,000 hours of TCOLE approved
training hours,” Mot. 4, and “40 hours of in-service training within a
two-year period,” id. 6. Each EPPD recruit is “provided with the
Intermediate CIT curriculum.” Id. at 27 (citing Mot. Ex. C, attach. C-1
(Crisis Intervention Training), May 01, 2019, ECF No. 143-26).

Similar to the prior two footnotes, the Court is of the opinion that a
finding that EPPD policies are facially unconstitutional as to Plaintiff’s
first theory is a necessary condition for proving Plaintiffs’ failure to
train theory through this specific argument. The Court is mindful that
when a jury is presented with alternative arguments for the same
theory of liability, it is impossible to know which argument ultimately
prevailed in the deliberation room. See Fed. R. Evid. 606(b) (preventing
a juror from testifying regarding jury deliberations except in limited
circumstances); see also Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 865
(2017) (explaining that the Federal Rules of Evidence Rule 606(b)
“promotes full and vigorous discussion” during jury deliberations and
“gives stability and finality to verdicts”). Should the Court determine
that the evidence is insufficient to support a finding that the policy is
facially unconstitutional, see Fed. R. Civ. P. 50, the Court may preclude
Plaintiffs from presenting this argument to the jury.

34

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Additionally, other mandatory trainings included topics on mental
health and use of force. Id. at 6–7. Notably, Defendant Officers Gomez
and Rivera have been current on their training requirements
throughout their careers and received “mental health/mental health
officer certification” as well as training in the use of force and “search
and seizure/entry of homes.” Id. at 8. Furthermore, Defendant City of
El Paso represents that EPPD’s training exceeds TCOLE requirements.
Id. at 22.
Conversely, Plaintiffs suggest that meeting these requirements on
paper does not accurately reflect the amount of training Defendant
Officers Gomez and Rivera actually received. Resp. 37. Reviewing
Defendant City of El Paso’s exhibits, Plaintiffs argue that both officers
received little, if any, relevant training on handling mental health
crises in the decade between when each graduated from the EPPD
academy and the date of Mr. Salas-Sanchez’s death. Id. (“[I]n the ten
years that have passed since he finished his probationary period, it does
not appear that Officer Gomez had taken the State-required refresher
mandatory mental health officer training.”). Furthermore, deposition
testimony indicates that EPPD officers may not remember their
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training. Id. 37–38 (citing Resp. Ex. 78, at 179–85 (Oral Deposition of
Alberto Rivera) (unable to answer when asked what instructors covered
in trainings)).
The Fifth Circuit instructs that courts should “consider
compliance with state requirements as a factor counseling against a
‘failure to train’ finding” though it also suggests that a plaintiff might
be able to “establish[] that the City’s training practices are inadequate.”
Zarnow v. City of Wichita Falls, 614 F.3d 161, 171 (5th Cir. 2010).
Assuming arguendo that every EPPD officer was TCOLE compliant,
Plaintiffs still identify possible gaps in both Defendant Officers Gomez’s
and Rivera’s training records. At best, the summary judgment evidence
suggests that EPPD officers receive one intermediate CIT course at the
beginning of their careers, to be reinforced with a periodic refresher
course once every few years. Given these gaps, the Court is of the
opinion that it is ill-equipped to decide whether this amount of training
is sufficient to justify taking a fact issue away from the jury.
Nevertheless, it is undeniable that these trained, TCOLE
compliant, EPPD officers still made a warrantless entry into the SalasSanchez’s home to execute an EDO and used force after failing to
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de-escalate a mental health crisis. Furthermore, Officer Rivera had
initiated a number of EDOs, Chief Allen knew that “the use of
warrantless emergency detention orders had increased over the years,”
and Chief Allen appointed Defendant Officer Gomez as a training
instructor at the EPPD Academy “less than two weeks after shooting a
mentally ill person.” Resp. 38, 62. This evidence could indicate that the
decision-making Defendant Officers Gomez and Rivera exhibited the
night of Mr. Salas-Sanchez’s death was consistent with EPPD training.
Hence, a reasonable jury could consider the facts in the light most
favorable to Plaintiffs and conclude that it does not matter whether
EPPD officer training was actually administered, inherently deficient,
or facially deficient. EPPD officers were interacting with mentally
individuals, initiating EDOs, and making warrantless entries in a
manner that suggests training policies that were constitutionally
inadequate.
b. Moving Force Causation
As the Court explained in its prior analysis on facially
unconstitutional policies, actions consistent with any constitutionally
inadequate training provided to EPPD officers should satisfy the
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moving force causation requirement to establish Monell liability.35
Specifically, were Defendant Officers Gomez and Rivera trained to
execute warrantless EDOs without probable cause, their training would
be a moving force of the unconstitutional entry into the Salas-Sanchez
home and seizure of Mr. Salas-Sanchez.
Conversely, if a reasonable jury were to determine that EPPD
training was substantively consistent with the Constitution, but
inadequately administered, the jury would then have to consider
whether Defendant Officers Gomez and Rivera violated Mr. SalasSanchez constitutional rights because of a lack of training. The Court is
of the opinion that there is sufficient evidence for such a finding.
Taking the facts in the light most favorable to Plaintiffs, Defendant
Officers Gomez and Rivera initiated an EDO without probable cause,
entered the Salas-Sanchez’s residence, and used excessive force against
Mr. Salas-Sanchez. A reasonable jury could conclude that had
Defendant Officers Gomez and Rivera received adequate training, they
would have taken a different course of action that evening.

See discussion supra Section III.A.1.c regarding Plaintiffs’ argument
that Defendant City of El Paso’s EDO policy is facially unconstitutional.

35

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c. Deliberate Indifference
“Deliberate indifference of this sort is a stringent test, and ‘a
showing of simple or even heightened negligence will not suffice’ to
prove municipal culpability.” Piotrowski, 237 F.3d at 579 (quoting
Brown, 520 U.S. at 407). Additionally, deliberate indifference requires
“a systemic failure attributable to the [municipality].” Sanchez v.
Young Cty., 866 F.3d 274, 280 (5th Cir. 2017). To show deliberate
indifference, it must be “obvious that the likely consequences of not
adopting a policy will be a deprivation of constitutional rights.” Rhyne
v. Henderson Cty., 973 F.2d 386, 392 (5th Cir. 1992). For example,
arming officers with guns but failing to train them on the constitutional
limits of the use of deadly force would amount to deliberate indifference.
Id. In such circumstances, “‘the need for more or different training is
obvious . . . [and] the policymakers of the city can reasonably be said to
have been deliberately indifferent to the need.’” Connor v. Travis Cty.,
209 F.3d 794, 796–97 (5th Cir. 2000) (quoting City of Canton, 489 U.S.
at 390).
The record reflects that throughout his tenure, Chief Allen has
been aware of various shortcomings regarding EPPD responses to
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mental health crises and the use of force. It would appear fundamental
to even the most casual of observers that these concerns might be best
addressed through proper training. When evidence exists that EPPD
officers are inadequately trained, it would seem to fall on the Chief of
the EPPD to improve training programs. A reasonable jury could
determine that Chief Allen not only failed to improve training programs
but did so despite the clear risk of constitutional violations that failing
to train poses.
If a jury were to determine that EPPD officers were trained
pursuant to policies that were facially unconstitutional, Chief Allen as a
policymaker could be deemed to have been deliberately indifferent to
the unconstitutional conduct that his own policy prescribed.
Simultaneously, if a jury were to determine that EPPD officers were
inadequately trained, Chief Allen as a policymaker failed to improve
training as EDOs increased and EPPD officers used excessive force
against mentally ill individuals. Accordingly, the Court is of the opinion
that these facts indicate that the need for different training is plainly
obvious. See City of Canton, 489 U.S. at 390. Furthermore, a
reasonable jury, viewing the facts in the light most favorable to
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Plaintiffs, could conclude that Chief Allen’s failure to train the EPPD
was so systemic as to hold Defendant City of El Paso liable for the
consequential violations of Mr. Salas-Sanchez’s rights. See Sanchez,
866 F.3d at 280. Therefore, the Court determines that it should deny
Defendant City of El Paso’s Motion for Summary Judgment as to
Plaintiffs’ theory of Monell liability regarding a failure to train.
D. Pattern and Practice of Excessive Use of Force When
Dealing with Persons Suffering from Mental Health Crises
Plaintiffs argue that the EPPD “had a persistent and widespread
practice of using excessive force against persons in mental health
crises.” Resp. 63. In prior sections of this Memorandum Opinion and
Order, the Court’s analysis has considered whether Plaintiffs alleged a
sufficient pattern for Chief Allen to have been deliberately indifferent to
the potential for constitutional violations inherent in his policies.
Dissimilarly, now the Court focuses on the EPPD officers’ actions and
whether a pattern existed that could reflect on the EPPD as a whole.
Though the evidence presented may be the same, its effect changes
when considered for a different purpose.
A “persistent, widespread practice” is sufficient to constitute an
official policy or custom. Piotrowski, 237 F.3d at 579. A pattern is
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tantamount to official policy when it is “so common and well-settled as
to constitute a custom that fairly represents municipal policy.”
Peterson, 588 F.3d at 850 (quoting Piotrowski, 237 F.3d at 579). “Where
prior incidents are used to prove a pattern, they ‘must have occurred for
so long or so frequently that the course of conduct warrants the
attribution to the governing body of knowledge that the objectionable
conduct is the expected, accepted practice of city employees.’” Id.
(quoting Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984)
(en banc)).
A pattern requires similarity and specificity; that is, “[p]rior
indications cannot simply be for any and all ‘bad’ or unwise acts, but
rather must point to the specific violation in question.” Id. at 851 (5th
Cir. 2009) (quoting Estate of Davis ex rel. McCully v. City of North
Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005)). “A pattern also
requires ‘sufficiently numerous prior incidents,’ as opposed to ‘isolated
instances.’” Id. (quoting McConney v. City of Houston, 863 F.2d 1180,
1184 (5th Cir. 1989)).
Previously, in deciding Defendant City of El Paso’s motion to
dismiss, the Court held that Plaintiffs’ allegations regarding:
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[S]tatistics combined with the numerous past cases of
excessive force in similar circumstances to those involved in
the present case—followed by the repeated denial of
wrongdoing—lead to a reasonable and plausible inference
that excessive force against the mentally ill in El Paso is a
widespread practice.
Mem. Op. and Order Denying Def. City of El Paso’s Mot. to Dismiss 23.
Additionally, the Court determined that for each of the cases cited in
Plaintiffs Amended Complaint, Plaintiffs alleged “that officers should
have been on notice that an individual was suffering from some mental
condition, that the individual never substantially threatened or
attacked any officer, but [the individual] was nonetheless killed, tased,
or beaten by the officers.” Id. at 26.
Once again, it is unclear how the Court should navigate the Fifth
Circuit’s Monell and Graham jurisprudences. Plaintiffs’ argument
implies that the Court should consider all eight instances discussed
above as a pattern of similar conduct that, as the Court has concluded,
resulted in constitutional violations half of the time. Simultaneously, if
relevancy is limited to those matters that involved constitutional
violations, four examples of near-identical conduct must be excluded. If,
as the Court has determined today, the remaining four examples are
sufficient to prove a pattern of deliberate indifference, the Court must
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then decide whether the same holds true for a pattern of a widespread
practice.
Conversely, the Fifth Circuit has been quite clear on the
significant hurdle of proving a widespread unwritten policy or custom.
See Peterson, 588 F.3d at 851 (affirming trial court’s conclusion that
twenty-seven alleged instances of force over four years was insufficient
to prove a pattern); Pineda, 291 F.3d at 329 (vacating trial court’s
conclusion that eleven instances of warrantless entry was sufficient to
prove a pattern). It is one thing for Plaintiffs to present a pattern that
should move Chief Allen. It is quite another to find a pattern that
reflects the very nature and character of an entire police force.
Accordingly, regardless of whether the Court considers four instances or
all eight, there are not enough instances for the Court to conclude that
Plaintiffs have met their burden.
Furthermore, this legal conclusion is consistent with the broader
context of this case. The evidence presented creates a compelling
argument that Defendant City of El Paso’s municipal liability is derived
from policies Chief Allen implemented, expressly or implicitly.
Additionally, EPPD officers’ actions are better characterized as a
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symptom of broad policy decisions, not a groundswell of misconduct
from everyday officers. Should Plaintiffs prove their case at trial, it
would appear to be a classic example of the proverbial fish that rots
from the head down. A reasonable jury could not conclude that many of
these EPPD officers did anything other than conform with the flawed
policies Chief Allen has promulgated.
The Court is of the opinion that an unwritten policy or custom
that starts from the ground up requires a pattern so extensive as to
preclude the possibility that a rotten apple spoils the whole bunch.
Contrastingly, a smaller, but nonetheless impactful, pattern should
move an individual policymaker to act in a manner that sets the proper
standard for every EPPD officer. One can imagine a circumstance
where municipal liability may be systemically derived from all levels of
an organization. After due consideration, the Court concludes that this
is not such a case. Accordingly, Defendant City of El Paso’s Motion for
Summary Judgment is granted as to Plaintiffs’ theory that the EPPD
had a pattern or practice of using excessive force against persons in
mental health crises.

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IV.

CONCLUSION
After many months of consideration, having navigated

significantly complex issues of fact and law, the Court is of the opinion
that Defendant City of El Paso, Texas’ “Motion for Summary Judgment”
(ECF No. 143) should be GRANTED IN PART AND DENIED IN
PART.
Accordingly, IT IS ORDERED that Defendant City of El Paso,
Texas’ Motion for Summary Judgment regarding Plaintiffs Celia
Sanchez and Oscar Salas’s Monell liability theory that the EPPD had a
pattern or practice of using excessive force against persons suffering
from mental health crises is GRANTED.
IT IS FURTHER ORDERED that Defendant City of El Paso,
Texas’ Motion for Summary Judgment regarding Plaintiffs Celia
Sanchez and Oscar Salas’s Monell liability theory that the EPPD failed
to institute proper procedures to ensure officers employ appropriate
tactics when dealing with persons suspected of suffering from mental
illness is DENIED.
IT IS FURTHER ORDERED that Defendant City of El Paso,
Texas’ Motion for Summary Judgment regarding Plaintiffs Celia
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Sanchez and Oscar Salas’s Monell liability theory that the EPPD failed
to properly investigate and discipline officers involved in excessive use
of force is DENIED.
IT IS FURTHER ORDERED that Defendant City of El Paso,
Texas’ Motion for Summary Judgment regarding Plaintiffs Celia
Sanchez and Oscar Salas’s Monell liability theory that the EPPD failed
to train officers on how to handle individuals suffering from a mental
health crisis is DENIED.
IT IS FURTHER ORDERED that any request or objection
addressed in today’s Memorandum Opinion and Order shall be bound
by the determinations included herein.
IT IS FINALLY ORDERED that any request or objection not
addressed in today’s Memorandum Opinion and Order is DENIED
WITHOUT PREJUDICE and may be brought again through the
appropriate pre-trial motion or a timely objection at trial, so long as
permissible pursuant to the Federal and Local Rules of Civil Procedure,
and all other rights and privileges afforded to the parties by law.36

This Order shall not be construed as a determination on the form or
substance of any request or objection contemplated herein.

36

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Counsels are ADVISED that any motion made outside of corresponding
deadlines previously set in this case shall require leave of Court to file.
Furthermore, the Court retains the right to carry any such motion
through trial.
SIGNED this 3rd day of March, 2020.
___________________ _________________
PHILIP R. MARTINEZ
UNITED STATES DISTRICT JUDGE

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