Doss et al v. Young et al
ORDER DENYING 222 Motion for Reconsideration Order for Defendant's Motion for Summary Judgment. Signed by Judge David A. Ezra. (wg)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
LOUIS V. DOSS and CAROLYN
DOSS, individually and d/b/a
TABC AGENT SCOTT
ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION
Before the Court is a Motion for Reconsideration of the Court’s Order
Granting in Part and Denying in Part Defendant’s Motion for Summary Judgment
on the Basis of Qualified Immunity filed by Defendant Texas Alcoholic Beverage
Commission (“TABC”) Agent Scott Helpenstell (“Defendant.”) (Dkt. # 222.)
Pursuant to Local Rule 7(h), the Court finds this matter suitable for disposition
without a hearing. After reviewing the Motion and the opposing and supporting
memoranda, the Court DENIES Defendant’s Motion for Reconsideration.
On January 30, 2011, Plaintiff Louis Doss (“Plaintiff”) noticed a
TABC vehicle parked at the Southway Pub, located in Kerrville, Texas. (Dkt. # 76
¶¶ 40–41.) Plaintiff drove into the parking lot of an adjoining business, with the
intent “to document this vehicle by photographing it.” (Id. ¶ 42.) Plaintiff exited
his vehicle and walked toward a fence separating Southway Pub from the adjoining
business. (Id.) Plaintiff then used his cell phone camera to take a photograph of
the TABC car and the license plate. (Id.) When Defendant exited the TABC car,
Plaintiff took a photo of Defendant. (Id.) Plaintiff informed Defendant of this fact,
and Defendant began walking toward Plaintiff. (Id.) Plaintiff then got back in his
Beyond these facts, the parties’ versions of events diverge. In his
deposition, Defendant testified he heard someone yell, “Hey, I’ve got you now” in
a loud, “threatenin’ type manner.” (Dkt. # 178, Ex. 3 at 4:155–56.) Defendant
states that he turned to see who it was, and saw Plaintiff standing by the fence with
something in his hand:
It didn’t appear to be a gun but, you know, I couldn’t really tell what
he was holdin’ in his hand. I said, “Who are you? What are you
doin’?” He’s like, “I don’t have to tell you anything but I’ve got you
now.” So at that point I thought, okay, I need to investigate this a
little bit further. Especially with a rash of violence against police
officers that’s been going on—just the suspicious activity.
(Id. at 5:182–88.) As to the object in Plaintiff’s hand, Defendant further stated, “I
couldn’t really tell what it was . . . . It didn’t look like a gun—it didn’t have the
shape of a gun. I thought it might be a cell phone or somethin’ like that—but I
couldn’t say clearly what it was. So the fact that he was pointin’ something at me
that I couldn’t identify and makin’ those statements I felt it be prudent on my part
to investigate further.” (Id. at 6:248–52.) However, later in his testimony,
Defendant stated, “I believe it was potentially a weapon or something.” (Id. at
Defendant testified that Plaintiff’s behavior made him feel “[r]eal
uneasy and alarmed.” (Id. at 6:258.) He asked Plaintiff, “[w]hat are you doin’.
Who are you?” Plaintiff responded, “I don’t have to tell you anything but I’ve got
you now,” and began to walk away. (Id. at 7:312–14.) Defendant states that he
followed Plaintiff around the fence, and Plaintiff identified himself as Lou Doss.
(Id. at 10:425–29.) Defendant reports that he was familiar with Plaintiff from a
previous dealing and knew him to be “a very difficult person . . . . Very aggressive
type person—very confrontational.” (Id. at 11:491–92.)
By this point, Plaintiff had gotten back inside his vehicle. (Id. at
10:425–26.) Defendant states that he asked Plaintiff for his driver’s license, but
Plaintiff refused to comply. (Id. at 11:482–84.) Defendant then told Plaintiff to
wait in his car while Defendant called for assistance. (Id. at 14:623–24.) While
Defendant was searching for the Kerr County Police Department phone number,
Plaintiff lowered his window and offered Defendant his driver’s license and
concealed handgun license. (Id. at 15:658–61.) Defendant states that when he
asked Plaintiff if he had a firearm on him at that time, Plaintiff responded, “I sure
do,” and pulled out a 2-shot Derringer and “held it in the air and just kind of
wagged it.” (Id. at 15:662–65.) Defendant testified that he was scared, feared he
would be shot, and thought he was “about to be in a gunfight.” (Id. at 16:678–
When Defendant saw Plaintiff’s pistol, he drew his own firearm. (Id.
at 17:740–42.) He states that he instructed Plaintiff to put down his weapon, and
Plaintiff complied. (Id. at 17:755–61.) Defendant then ordered Plaintiff to put his
hands on the steering wheel where Defendant could see them. (Id. at 17:761–62.)
Plaintiff did so, but began to yell, “Shoot me. Kill me. You’re gonna have to kill
me.” (Id. at 18:764–65.) Defendant ordered Plaintiff to exit the vehicle, and states
that Plaintiff refused. (Id. at 18:766–67.) Defendant testified that he then reholstered his weapon and reached in the car window, unlocked the door, opened it,
and again ordered Plaintiff to get out of the car. (Id. at 20:893–96.) Defendant
grabbed Plaintiff by the arm, and Defendant stated that he saw Plaintiff’s right
hand reach down to the area where Plaintiff had put down his firearm. (Id. at
21:919; 22:952–53.) Defendant stated his belief that Plaintiff was reaching for his
gun and would try to shoot. (Id. at 22:961–69.) Defendant then grabbed Plaintiff
by the collar and around the shoulders and pulled him from the vehicle. (Id. at
Defendant testified that at that point, Plaintiff’s resistance stopped,
and Plaintiff “let his legs go out from under ‘em and lay spread eagle” on the
ground. (Id. at 23:1022–25.) Defendant handcuffed Plaintiff and waited for
backup officers to arrive. (Id. at 25:1095–1101.)
Plaintiff’s version of events differs in several respects. In his
affidavit, Plaintiff asserts that Defendant immediately recognized him in the
Southway Pub parking lot, and became “angry and red faced” upon learning that
Plaintiff had taken his photo. (Dkt. # 209, Ex. B ¶¶ 37(f); 37(j).) Plaintiff further
claims that after Defendant followed him to his car, Defendant “began banging on
the door to the vehicle and window violently trying to jerk the handle off the
door.” (Id. ¶ 37(n).) Plaintiff states that after giving Defendant his driver’s license
and concealed handgun license, he put both hands on his steering wheel; Defendant
then commenced a “violent brutal attack that was completely unprovoked and
without any resistance from me whatsoever, this attack included punches to my
face and strikes to my head with a pistol, impacts so hard that they knocked me
unconscious.” (Id. ¶ 37(p).)
Plaintiff also states that Defendant “showed no interest in the gun or
separating me from it,” thereby acknowledging that he showed Defendant the
weapon. (Id. ¶ 37(q).) Plaintiff nonetheless claims that he “at no time whatsoever
resisted anything,” and that Defendant “is lying when he claims that I made
movements for a gun.” (Id. ¶¶ 37(s); 37(t).) Finally, Plaintiff asserts that in the
course of removing him from the car, Defendant “violently threw [him] to the
concrete causing serious bodily injury.” (Id. ¶ 37(x).)
On March 13, 2014, Defendant filed a Motion for Summary Judgment
on the Basis of Qualified Immunity. (Dkt. # 178.) On May 12, 2014, Plaintiff
filed a response, (Dkt. # 209), and on May 19, 2014, Defendant filed a reply. (Dkt.
# 210.) Additionally, on May 28, 2014, Defendant filed a Notice of Supplemental
Authority. (Dkt. # 211.) On May 30, 2014, Plaintiff filed a response to that
document. (Dkt. # 213.)
On September 26, 2014, the Court issued an Order Granting in Part
and Denying in Part Defendant’s Motion for Summary Judgment. (Dkt. # 219.)
The Court granted summary judgment on Plaintiff’s unlawful arrest claim because
it found that Defendant was entitled to qualified immunity, but declined to grant
summary judgment on Plaintiff’s excessive force claim.
On October 6, 2014, Defendant filed the instant Motion for
Reconsideration asking the Court to reconsider its denial of summary judgment on
the excessive force claim, alleging that he is entitled to qualified immunity on that
claim as well. (Dkt. # 222.) On October 9, 2014, Plaintiff filed a response. (Dkt.
# 224.) On October 13, 2014, Defendant filed a reply. (Dkt. # 225.)
Motion for Reconsideration
“While the Federal Rules of Civil Procedure do not provide for a
motion for reconsideration, such a motion may be considered either a Rule 59(e)
motion to alter or amend judgment or a Rule 60(b) motion for relief from judgment
or order.” Shepherd v. Int’l Paper Co., 372 F.3d 326, 328 n.1 (5th Cir. 2004).
Whether a motion is considered under Rule 59(e) or Rule 60(b) depends on when it
was filed. See id. “If the motion is filed within 28 days of the judgment or order
of which the party complains, it is considered a Rule 59(e) motion. Obersteller v.
United States, No. A–13–CV–198–LY, 2013 WL 7138802, at *1 (W.D. Tex. July
19, 2013); see also Fed. R. Civ. P. 59(e). Here, Defendant filed his Motion within
28 days of the Court’s Order. (See Dkts. ## 219, 221.) Therefore, the Court
considers this Motion under Rule 59.
A motion made under Rule 59(e) “calls into question the correctness
of a judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004)
(quoting In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002)). The Fifth
Circuit has held that such a motion “[is] not the proper vehicle for rehashing
evidence, legal theories, or arguments that could have been offered or raised before
the entry of judgment.” In re Rodriguez, 695 F.3d 360, 371 (5th Cir. 2012)
(quoting Templet, 367 F.3d at 478–79). “A Rule 59(e) motion must clearly
establish either a manifest error of law or fact and must present newly discovered
evidence and cannot raise issues that could, and should, have been made before the
judgment issued.” United Nat’l Ins. Co. v. Mundell Terminal Servs. Inc., 740 F.3d
1022, 1031 (5th Cir. 2014) (citing Advocare Int’l LP v. Horizon Labs., Inc., 524
F.3d 678, 691 (5th Cir. 2008)).
Rule 59(e) “favor[s] the denial of motions to alter or amend a
judgment.” S. Constructors Grp., Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir.
1993). In other words, “[r]econsideration of a judgment after its entry is an
extraordinary remedy that should be used sparingly.” Templet, 367 F.3d at 479.
Motion for Summary Judgment
Summary judgment is proper where the evidence demonstrates “that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); Cannata v. Catholic Diocese
of Austin, 700 F.3d 169, 172 (5th Cir. 2012). The party moving for summary
judgment bears the burden of demonstrating the absence of a genuine issue of
material fact. Davis v. Fort Bend Cnty., 765 F.3d 480, 484 (5th Cir. 2014) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party meets its
burden, the burden shifts to the nonmoving party to come forward with specific
facts that establish the existence of a genuine issue for trial. ACE Am. Ins. Co. v.
Freeport Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th Cir. 2012).
The court evaluates the proffered evidence in the light most favorable
to the nonmoving party. Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir.
2003). The court “examines the pleadings, affidavits, and other evidence
introduced in the motion, resolves any factual doubts in favor of the non-movant,
and determines whether a triable issue of fact exists.” Leghart v. Hauk, 25 F.
Supp. 2d 748, 751 (W.D. Tex. 1998). However, “[u]nsubstantied assertions,
improbable inferences, and unsupported speculation are not sufficient to defeat a
motion for summary judgment.” Brown v. City of Hous., 337 F.3d 539, 541 (5th
Defendant asks this Court to reconsider its previous Order on two
grounds. First, Defendant argues that he is entitled to qualified immunity because
his use of force was not excessive under clearly established law, even under
Plaintiff’s version of the facts. (Dkt. # 222 at 1.) Second, Defendant argues that
Staten v. Adams, 939 F. Supp. 2d 715 (S.D. Tex. 2013) should not factor into the
Court’s analysis because it was decided two years after the incident in this case,
and because it is factually distinct from the case at bar. (Id. at 5.)
Qualified Immunity, Clearly Established Law, and Excessive Force
Defendant argues that he is entitled to qualified immunity because
even taking Plaintiff’s version of the facts as true, his conduct did not constitute
excessive force under clearly established law. (Id. at 1–2.)
Courts apply a two-prong test to determine whether a defendant is
entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001),
overruled in part by Pearson v. Callahan, 555 U.S. 223, 236 (2009). First, taking
the facts in the light most favorable to the allegedly injured party, courts must
determine whether the officer’s conduct violated a constitutional right. Id.
Second, if a violation occurred, courts ask whether the right was clearly
established. Id. Courts may exercise discretion in deciding which of the two steps
should be analyzed first. Pearson, 555 U.S. at 236. In this case, as in its original
Order, the Court elects to address the second prong first. The second Saucier
prong involves two separate inquiries: first, whether the allegedly violated
constitutional rights were clearly established at the time of the incident; and
second, if so, whether the conduct of the defendants was objectively unreasonable
in light of that then clearly established law. Tarver v. City of Edna, 410 F.3d 745,
750 (5th Cir. 2005); see also Saucier, 533 U.S. at 202.
Thus, the Court first asks whether Plaintiff had a clearly established
right to be free from excessive force. It is undisputed that Plaintiff has that right
under the Fourth Amendment. See, e.g., Deville v. Marcantel, 567 F.3d 156, 169
(5th Cir. 2009) (explaining that the Fourth Amendment creates a right to be free
from excessive force during a seizure). Next, the Court must determine whether,
taking the facts in the light most favorable to Plaintiff, Defendant’s conduct was
objectively unreasonable in light of clearly established law at the time of the
incident. Whether the use of force was reasonable depends on a number of factors,
often referred to as the Graham factors, including the severity of the crime at issue,
whether the suspect posed a threat to the officer’s safety, and whether the suspect
was resisting arrest or attempting to flee. Poole v. City of Shreveport, 691 F.3d
624, 627–28 (5th Cir. 2012) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).
In its previous Order, the Court focused its analysis on Thomas v.
Murray, 107 F. Supp. 2d 748 (N.D. Tex. 2000) and asked whether that case should
have put Defendant on notice that his conduct constituted excessive force. (Dkt.
# 229 at 15–16.) The Court now revisits that analysis. In Thomas, the defendant
police officer, Murray, asked the plaintiff, Thomas, to surrender his gun during an
investigatory stop. 107 F. Supp. 2d at 752–53. When Thomas refused, Murray
grabbed Thomas, pushing him up against a wall, and stuck the barrel of his gun in
Thomas’s throat. Id. at 753. For the purposes of summary judgment, the court
accepted as true Thomas’s allegation that he never drew his own weapon or
pointed it at anyone. Id. As a result of this altercation, Thomas suffered a head
injury and lost consciousness for a period of time. Id. The court held that Murray
was entitled to qualified immunity, finding that his use of force was not clearly
excessive or objectively unreasonable under the circumstances. Id. at 758. In
reaching this conclusion, the court relied on several undisputed facts: Thomas
refused to surrender his weapon, Thomas was talking loudly and appeared agitated,
and once Murray took possession of Thomas’s gun no further force was used. Id.
As the Court noted previously, Thomas does bear some similarities to
the case at bar. (Dkt. # 229 at 15–16.) In both cases, the defendant officers were
aware that the plaintiffs were armed and feared for their safety. Also in both cases,
the plaintiffs claimed they in no way threatened the officers with their firearms.
However, there are also critical differences.
In Thomas, Murray initially questioned Thomas because a third party
had accused Thomas of pulling a gun on him. 107 F. Supp. 2d at 752. In this case,
Defendant approached Plaintiff’s car because Plaintiff had been taking pictures and
was holding something in his hand; Defendant gave conflicting testimony about
whether he thought it could be a weapon. (See Dkt. # 178, Ex. 3 at 5:182–88;
7:289.) While the plaintiff in Thomas was suspected of having committed a
violent and threatening act shortly before the confrontation with the officer,
Plaintiff in this case made no threat to anyone, at least under his version of events.
Put otherwise, the first Graham factor weighed more heavily in favor of the use of
force in Thomas than it did in this case.
Furthermore, the plaintiff in Thomas actively refused to surrender his
weapon when directed to do so by the officer. 107 F. Supp. 2d at 752–53. In this
case, even under Defendant’s version of events, Plaintiff complied with
Defendant’s instructions to put down his firearm and place his hands on the
steering wheel. (Dkt. # 178, Ex. 3 at 17:755–65.) The plaintiff in Thomas refused
to comply with the officer’s attempts to deescalate the situation, but Plaintiff in this
case, especially under his version of the facts, cooperated with the instructions
Defendant gave to try to diffuse the situation and remove the potential for gun
Finally, the defendant officer in Thomas did not use further force or
threats of force after taking possession of Thomas’s gun. 107 F. Supp. 2d at 758.
In this case, according to Plaintiff’s version of the facts, Defendant began to beat
him after he complied with Defendant’s instructions. (Dkt. # 209, Ex. B ¶ 37(p).)
While it is true that Plaintiff remained in possession of the gun and could have
reached for it had he wanted to, Defendant did not ask him to surrender it but
instead, Plaintiff claims, chose to use physical force. Because of these critical
differences between Thomas and the case at bar, the Court finds Thomas did not
clearly establish that Defendant’s use of force was reasonable under the
Defendant also argues that Brosseau v. Haugen, 543 U.S. 194 (2004)
clearly establishes that Defendant’s use of force was reasonable under the facts of
this case. (Dkt. # 222 at 13; Dkt. #225 at 9–10.) In Haugen, a man had gone to the
police station and accused the plaintiff, Haugen, of stealing tools from his shop.
543 U.S. at 195. Officer Brosseau also learned that there was a felony warrant out
for Haugen’s arrest on drug and other offenses. Id. Brosseau responded to a call
reporting that Haugen was fighting with another man, and when she arrived,
Haugen ran from the scene. Id. at 195–96. Haugen jumped into a car, where
Brosseau believed he meant to retrieve a weapon. Id. at 196. Haugen ignored
Brosseau’s orders to get out of the car, and continued to look for his keys to start
the ignition. Id. Brosseau shattered the window with her handgun and struck
Haugen with the barrel and butt of the gun. Id. The Supreme Court held that
Brosseau was entitled to qualified immunity, calling her actions “within that hazy
border between excessive and acceptable force.” Id. at 201.
The Court finds that Haugen differs from the case at bar in important
ways. Both the first and third Graham factors weighed far more heavily in favor of
force in Haugen than in this case. As to the first factor, Haugen was accused of
theft and being involved in a fight the day of the incident, and felony warrants
were out for his arrest. Haugen, 543 U.S. at 195–96. In contrast, Plaintiff took
some photographs of Defendant and held something that Defendant thought
perhaps could have been a weapon, although he also stated it did not look like one.
(Dkt. # 76 ¶ 42; Dkt. # 178, Ex. 3 at 6:248–50.) As to the third factor, Haugen
actively fled the scene and was attempting to start the car to drive away when
Brosseau hit him with her handgun. Haugen, 543 U.S. at 195–96. In this case,
according to both parties, Plaintiff made no move to leave the scene. For these
reasons, the Court finds that Haugen did not clearly establish that Defendant’s use
of force was reasonable under the circumstances of this case.
In sum, the Court finds a reasonable jury could conclude that
Defendant’s use of force was excessive under Plaintiff’s version of the facts: he
took a photo of Defendant, retreated to his car, provided his driver’s license and
concealed handgun license upon request, put his hands on the steering wheel as
instructed, and was subsequently subject to “a violent brutal attack that was
completely unprovoked and without any resistance from [Plaintiff.]” (Dkt. # 209,
Ex. B ¶¶ 37(c); 37(p).) The Supreme Court recently emphasized the importance of
viewing the evidence at summary judgment in the light most favorable to the
plaintiff in qualified immunity and excessive force cases:
Our qualified-immunity cases illustrate the importance of drawing
inferences in favor of the nonmovant, even when, as here, a court
decides only the clearly-established prong of the standard. In cases
alleging unreasonable searches or seizures, we have instructed that
courts should define the “clearly established” right at issue on the
basis of the “specific context of the case.” Accordingly, courts must
take care not to define a case’s “context” in a manner that imports
genuinely disputed factual propositions.
Tolan v. Cotton, __ U.S. __, 134 S.Ct. 1861, 1866 (2014) (vacating grant of
qualified immunity and remanding for further proceedings where the Fifth Circuit
“failed to view the evidence at summary judgment in the light most favorable to
[the plaintiff]”). For that reason, the Court declines to find that Defendant is
entitled to qualified immunity on the excessive force claim.
Staten v. Adams
Defendant argues that Staten v. Adams, 939 F. Supp. 2d 715 (S.D.
Tex. 2013) should not be considered in this case because it was decided two years
after the incident at issue. (Dkt. # 222 at 5.) As explained above, whether a right
was clearly established at the time of a particular injury depends on the precedent
available at the time of the injury. See Ashcroft v. al-Kidd, __ U.S. __, 131 S.Ct.
2074, 2083 (2011) (noting that “existing precedent must have placed the statutory
or constitutional question beyond debate”). The incident in this case occurred on
January 30, 2011. (Dkt. # 76 ¶ 40.) Therefore, only precedent available before
that date may be used in determining whether Defendant’s conduct violated a
clearly established right. Because Staten v. Adams was decided two years after the
events in this case it does not inform the Court’s decision as to whether Defendant
should have known that his conduct constituted excessive force. However, the
Court may look to that case in its evaluation of whether Defendant acted
reasonably under the circumstances.
In Staten, the plaintiff, Staten, attested in his deposition that the
defendant, Officer Adams, hit Staten with his gun through the open window of
Staten’s car while Staten had his hands up. 939 F. Supp. 2d at 724. The court
concluded that “were a jury to accept plaintiff’s version of the facts that Officer
Adams pistol-whipped plaintiff while plaintiff was sitting in the car with his hands
up, it could conclude that such force was excessive and unreasonable to the need,
even if plaintiff had failed to comply with orders to get out of the car and snatched
his hands away as the officers attempted to cuff him.” Id. at 731. The Court
agrees with this analysis, and similarly finds that a jury viewing the facts in the
light most favorable to Plaintiff could conclude that Defendant’s use of force was
excessive and unreasonable under the circumstances of this case.
For the reasons stated above, the Court hereby DENIES Defendant’s
Amended Motion for Reconsideration. (Dkt. # 222.)
IT IS SO ORDERED.
DATED: San Antonio, Texas, November 24, 2014.
David Alan Ezra
Senior United States Distict Judge
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