Smith v. City of Killeen, Texas et al

Filing 32

ORDER ACCEPTED IN PART AND NOT ACCEPTED IN PART REPORT AND RECOMMENDATIONS for 28 Report and Recommendations, 17 Motion for Summary Judgment filed by Givonchie Emeana, 18 Motion for Summary Judgment filed by CITY OF KILLEEN, TEXAS. Emean as Motion for Summary Judgment, (Dkt. 17), is GRANTED IN PART AND DENIED IN PART. Emeanas motion is GRANTED with respect to Smiths FourteenthAmendment claim and Smiths state-law assault claim, which are dismissed; it is DENIED in all other respects. The Citys Motion for Summary Judgment, (Dkt. 18), is DENIED. Signed by Judge Robert Pitman. (tb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
MATTHEW DAVID SMITH,
Plaintiff,
v.
CITY OF KILLEEN, TEXAS; and
GIVONCHIE EMEANA,
Defendants.

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6:16-cv-323-RP-JCM

ORDER
Before the Court is the Report and Recommendation of United States Magistrate Judge
Jeffrey C. Manske, (Dkt. 28), concerning the Motions for Summary Judgment filed by Defendants
City of Killeen, Texas (“the City”), and Givonchie Emeana (“Emeana”) (collectively, “Defendants”).
(Dkts. 17, 18). Also before the Court are Plaintiff Matthew David Smith’s (“Smith”) timely filed
objections. (Dkt. 29).
This case was referred to United States Magistrate Judge Jeffrey C. Manske for a report and
recommendation on the merits pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil
Procedure, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for
the Western District of Texas.
In his report and recommendation, Judge Manske recommended that the Court grant
Defendants’ motions. (R. & R., Dkt. 28, at 23–24). Having considered the parties’ submissions, the
record, and the applicable law, the Court will not fully adopt the report and recommendation.
I. BACKGROUND
This case concerns a man who was shot by a police officer while fleeing a traffic stop. (R. &
R., Dkt. 28, at 1–2). There is no dispute about the basic facts. Just after 5 a.m. on August 16, 2014,
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Emeana pulled over Smith for running a red light in Killeen, Texas. (Id. at 1). Smith fled in his car,
and Emeana chased Smith until both cars arrived at a dead end. (Compl., Dkt. 1, at 2–3; Emeana
Mot. Summ. J., Dkt. 17, at 3–4). Emeana got out of his car and approached Smith’s; seconds later,
Emeana fired eight bullets into Smith’s car. (Compl., Dkt. 1, at 3; Emeana Mot. Summ. J., Dkt. 17,
at 5). Smith says one of the bullets struck him in the neck. (Compl., Dkt. 1, at 3).
The dispute in this case concerns Emeana’s liability for Smith’s injury. Emeana says that he
only shot at Smith’s car because Smith was driving his car at Emeana. (Emeana Mot. Summ. J., Dkt.
17, at 6). Smith says that his car was stopped and he had his hands up when Emeana fired the first
shot at him and that Emeana moved into the path of Smith’s car while shooting at him. (Resp.
Emeana Mot. Summ. J., Dkt. 19, at 3).
Smith asserts causes of action under 42 U.S.C. § 1983 (“Section 1983”) against Emeana for
violating Smith’s Fourth Amendment right to be free of excessive force and his Fourteenth
Amendment right to substantive due process. (Compl., Dkt. 1, at 5–6). He also asserts a state-law
cause of action for assault against Emeana. (Id. at 6). Against the City, Smith asserts a cause of action
under Section 1983 for violating his Fourth Amendment right to be free of excessive force by failing
to properly train or supervise Emeana. (Id. at 6–8). Emeana asserts qualified immunity as a defense
to Smith’s Section 1983 claims. (Emeana Answer, Dkt. 4, at 8).
In his report and recommendation, Magistrate Judge Manske found that neither Emeana nor
the City was liable as a matter of law for any of Smith’s claims and recommended that the Court
grant summary judgment in favor of Emeana and the City on all claims. (R. & R., Dkt. 28, at 23–24).
Smith then timely filed objections to every part of the report and recommendation. (Obj., Dkt. 29).

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II. LEGAL STANDARDS
A. Federal Magistrates Act
Under federal statute and the Federal Rules of Civil Procedure, magistrate judges may make
findings and recommendations on dispositive motions. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P.
72(b)(1). Motions for summary judgment are dispositive motions under the Federal Magistrates Act.
Davidson v. Georgia-Pac., L.L.C., 819 F.3d 758, 763 (5th Cir. 2016) (citing 28 U.S.C. § 636(b)(1)(A)).
For dispositive motions, parties are entitled to de novo review of any part of the magistrate judge’s
disposition that has been properly objected to. Fed. R. Civ. P. 72(b)(3).
B. Summary Judgment
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure
only “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.” Fed. R. Civ. P. 56(a). A dispute is genuine only if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). “A fact issue is ‘material’ if its resolution could affect the
outcome of the action.” Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
The party moving for summary judgment bears the initial burden of “informing the district
court of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The burden then shifts to the nonmoving party to establish the existence of a genuine
issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); Wise
v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). After the non-movant has been
given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, summary judgment will be granted. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 175
(5th Cir. 2000).
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“A qualified immunity defense alters the usual summary judgment burden of proof.” Brown v.
Callahan, 623 F.3d 249, 253 (5th Cir. 2010). “Once an official pleads the defense, the burden then
shifts to the plaintiff, who must rebut the defense by establishing a genuine fact issue as to whether
the official’s allegedly wrongful conduct violated clearly established law.” Id.
Even when considering a qualified immunity defense, however, the Court must view the
evidence in the light most favorable to the non-movant and draw all inferences in the non-movant’s
favor, Rosado v. Deters, 5 F.3d 119, 122–23 (5th Cir. 1993), and cannot make credibility
determinations or weigh the evidence, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000). That said, when one party’s version of the facts “is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
III. SUMMARY JUDGMENT EVIDENCE
Viewed in the light most favorable to Smith, the summary judgment evidence is as follows.
After being stopped by Emeana, Smith fled in his car and Emeana followed him. (Smith Decl., Dkt.
19-1, at 2.). The chase began just after 5 a.m. and very few cars or pedestrians were on or near the
road. (Emeana Video, Ex. D-1, Dkt. 17, at 1:20–10:24). Smith states that he “did not run any red
lights” and “did not greatly or unsafely exceed the speed limit” during the chase. (Smith Decl., Dkt.
19-1, at 2). 1 During the ten-minute chase, Smith ran a number of stop signs, but also slowed or
stopped for many others; he several times failed to signal a turn or signaled the wrong direction, but
he often signaled turns properly; he drove for several seconds on the wrong side of the road and off
the road, but mostly drove in the correct lane. (Emeana Video, Ex. D-1, Dkt. 17, at 1:20–10:24).
Smith did not collide with any cars or other objects and avoided colliding with Emeana’s car. (Id.).

The video of the chase taken by Emeana’s dashboard camera does not blatantly contradict either statement such that a
reasonable jury could not believe them. Scott, 550 U.S. at 380.
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Eventually, Smith stopped his car in a cul-de-sac and Emeana pulled up along the driver side
of Smith’s car. (Id. at 10:24; Smith Decl., Dkt. 19-1, at 2). A second police car driven by Officer
Ronald Jackson (“Jackson”) pulled up behind Smith’s car. (Jackson Pursuit Video, Ex. D-2, Dkt. 17,
at 9:58). Smith then drove in reverse and started a three-point turn toward his passenger side and
away from Emeana’s car to leave the cul-de-sac. (Id. at 10:00). As Smith reversed his car, Emeana
exited his car and rushed toward Smith’s driver’s side window with his gun pointed at Smith’s car.
(Id. at 10:01–03).
What happened next is the core of the dispute. According to Smith, Emeana banged on
Smith’s car window with his gun. (Smith Decl., Dkt. 19-1, at 3). Then, after his reverse turn had
come to rest, he saw Emeana “standing with his gun pointed” at him from several feet to the left
and away from Smith’s car. (Id.). Smith is “certain” that he put his hands in the air and that his car
was not moving when Emeana fired the first shot at him. (Id.). Emeana was “off to the left” of his
car and not in the path of his car. (Id.). Emeana then “ran across the front” of Smith’s car and fired
several more shots while running. (Id.).
According to Emeana, however, he began firing at Smith’s car as it “turned towards [him] in
close proximity to [him] and then drove towards [him].” (Emeana Decl., Dkt. 17, at 41). He was in
front of Smith’s car when he fired his first five shots at the car and he had to take “evasive action”
to avoid being hit by Smith’s car, (id.), which was moving when he fired each of his first five shots.
(Emeana Reply, Dkt. 20, at 1).
Neither Emeana’s nor Jackson’s car dash camera recorded video footage of Smith’s car or
Emeana when Emeana fired at Smith’s car. However, another camera captured footage of some of
the gunshots. On the north side of the cul-de-sac sits a house with a home security camera. (Home
Security Video, Ex. D-3, Dkt. 17). The angle of that camera allowed it to view all three cars entering
the cul-de-sac, (id. at 0:11), but not any of the cars while they were inside the cul-de-sac, (id. at 0:18).
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Before the first shot was fired, the camera recorded headlights washing across the driveway. (Id. at
0:29). A split second after the moving headlights are visible in the video footage, the first gunshot is
audible. (Id. at 0:30). In the video, the first gunshot is followed quickly by four more; neither Smith’s
car nor Emeana are visible when the first three gunshots can be heard. (Id. at 0:31). When both
come into view, Emeana appears to be in front of Smith’s car and moving laterally from driver side
to passenger side as he fires the fourth and fifth shots. (Id. at 0:32). The video then shows Emeana
firing three more gunshots at the car from a position behind the car and off to the passenger side.
(Id. at 0:34).
Smith does not know which of the eight bullets struck him in the neck. (Smith Decl., Dkt.
19-1, at 3). A shooting reconstruction report (“SRR”) prepared by the Killeen Police Department
concluded that the first bullet fired was likely the bullet that struck Smith. (SRR, Dkt. 19-2, at 27). A
photograph of Smith taken shortly after the shooting shows blood covering the front of his chest
and an emergency responder placing pressure on the front Smith’s throat but does not show an
entry or exit wound. (Photograph, Dkt. 17, at 64).
IV. DISCUSSION
Because Smith timely objected to every part of the magistrate judge’s report and
recommendations, he is entitled to de novo review of the entire report and recommendation. The
Court will consider each of Smith’s claims separately.
A. Section 1983 – Fourth Amendment
Qualified immunity protects government officials “from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine
whether a government official is entitled to qualified immunity, a court must decide both (1)
whether a plaintiff has alleged facts sufficient to establish a constitutional violation and (2) whether
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the right at issue was clearly established at the time of defendant’s alleged misconduct. Pearson v.
Callahan, 555 U.S. 223, 231 (2009). A court has discretion to determine the order in which it
considers those questions. Id. at 236. Here, the Court will first consider whether Smith has
adequately alleged a constitutional violation.
1. The Constitutional Violation
To prevail on an excessive-force claim, a plaintiff must show: “(1) injury, (2) which resulted
directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which
was clearly unreasonable.” Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016) (citation and quotation
marks omitted). The Fifth Circuit recognizes that the analyses of whether a use of force is “clearly
excessive” or “clearly unreasonable . . . are often intertwined.” Poole v. City of Shreveport, 691 F.3d 624,
628 (5th Cir. 2012). There is no question that Smith was injured; the question is whether Emeana’s
use of force was clearly excessive or unreasonable.
“Excessive force claims are 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) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). “Factors to
consider include ‘the severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.’” Id. (quoting Graham, 490 U.S. at 396).
The reasonableness of an officer’s conduct is judged objectively without reference to the
officer’s intent or motivation. Graham, 490 U.S. at 397. Courts must look at the facts and
circumstances “from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id. at 396. Courts must also account for the difficult and often split-second
decisions that police officers must make in carrying out their duties. Id. at 396–97.

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The Fifth Circuit has emphasized that determining “the reasonableness of an officer’s
conduct under the Fourth Amendment is often a question that requires the input of a jury.” Lytle v.
Bexar Cty., Tex., 560 F.3d 404, 411 (5th Cir. 2009). “When facts are undisputed and no rational
factfinder could conclude that the officer acted unreasonably,” a court “can hold that an officer
acted reasonably as a matter of law.” Id. at 412. However, “when facts are disputed and significant
factual gaps remain that require the court to draw several plaintiff-favorable inferences,” a court
“must consider what a factfinder could reasonably conclude in filling these gaps and then assume
the conclusion most favorable to the plaintiff.” Id. If a rational factfinder could conclude that
Emeana violated the Constitution, the Court must move on to the qualified immunity question. Id.
Emeana argues that his use of force was justified both because Smith drove his car at him
and because Smith’s flight put the officers and public at risk. (Emeana Mot. Summ. J., Dkt. 17, at 7–
9). The magistrate judge agreed, (R. & R., Dkt. 28, at 9–21), but Smith objects that the report and
recommendation makes factual determinations with which a reasonable juror could disagree, (Obj.,
Dkt. 29, at 2–6).
The Court agrees with much of the magistrate judge’s analysis. The home security camera
footage conclusively establishes that Smith’s car was moving before Emeana fired his first shot. (See
R. & R., Dkt. 28, at 14; Home Security Video, Ex. D-3, Dkt. 17, at 0:29–31 (showing Smith’s
headlights sweeping across the home’s driveway before a gunshot is audible)). The home security
camera footage so “blatantly contradict[s]” Smith’s statement that his car was still when Emeana
first shot at him, (Smith Decl., Dkt. 19-1 at 3), that a reasonable juror could not believe it. Scott, 550
U.S. at 380. The home security footage therefore eliminates any genuine dispute concerning Smith’s
argument that his car was motionless when the first shot was fired and that Emeana’s actions were
therefore unreasonable. (Resp. Emeana Mot. Summ. J., Dkt. 20, at 9).

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Moreover, the SRR—Smith’s own evidence—establishes that none of the last three shots
caused Smith’s injuries. Emeana fired his second volley of three shots into the passenger side of
Smith’s car as it passed him. (Home Security Video, Ex. D-3, Dkt. 17, at 0:34). The SRR documents
the trajectories of those three bullets: one exited the driver’s side door, one was lodged in the
passenger seat, and the third sliced laterally through the rear of the driver’s side headrest. (SRR, Dkt.
19-2, at 24–26). Smith’s own evidence therefore supports the finding that none of these bullets
struck him. And while Smith argues that “Emeana offers no evidence . . . that would rule out any of
the eight projectiles causing the injury,” it is Smith who has the burden of creating a genuine fact
issue as to whether Emeana’s conduct violated the Fourth Amendment. Brown, 623 F.3d at 253.
Because a use of force only violates the Fourth Amendment if it causes an injury, Cooper, 844 F.3d at
522, none of those three shots can form the basis of Smith’s Fourth Amendment claim.
Accordingly, there is one remaining issue concerning Emeana’s conduct: whether he
unreasonably created the threat justifying his use of force. (Resp. Emeana Mot. Summ. J., Dkt. 20, at
12–13). On this issue, the Court disagrees with the report and recommendation. (R. & R., Dkt. 28, at
15–16). Smith states that Emeana was “off to the left” of his car and “not in the path” of his car
before it began moving, and that Emeana “ran across the front of the car” as he fired his gun.
(Smith Decl., Dkt. 19-1, at 3). Viewing the evidence in the light most favorable to Smith, Emeana
was not in the path of Smith’s car until he placed himself in the path of the car. There is no video
footage that conclusively resolves that factual contention against Smith; neither the dash camera
video footage nor the home security video footage shows the path of Smith’s car or Emeana’s
position relative to Smith’s car as Smith begins to exit the cul-de-sac. Although Emeana disputes
Smith’s version of events, (Emeana Decl., Dkt. 17, at 42), the Court cannot make credibility
determinations or weigh the evidence at this stage. Reeves, 530 U.S. at 150.

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Moreover, this fact dispute is material. The Fifth Circuit and other federal courts of appeal
have held that an officer’s use of force cannot be justified by the threat of an oncoming vehicle
when the officer moves into a vehicle’s path. Edmond v. City of New Orleans, 20 F.3d 1170, 1170 (5th
Cir. 1994) (precedential under 5th Cir. R. 47.5.3) (holding that “[s]ummary judgment is properly
denied” when “fact issues existed about whether a police officer’s use of force was justified or was
unreasonably created when he stepped in front of a moving car.”) (citation omitted); Kirby v. Duva,
530 F.3d 475, 482 (6th Cir. 2008) (affirming the denial of summary judgment where some evidence
suggested that the officer placed himself in danger by moving toward the plaintiff’s car and stating
that “[w]here a police officer unreasonably places himself in harm’s way, his use of deadly force may
be deemed excessive.”); Estate of Starks v. Enyart, 5 F.3d 230, 233–35 (7th Cir. 1993) (rejecting a
district court’s grant of summary judgment where a fact dispute existed as to whether the officer
stepped in front of the decedent’s car before shooting him). Should a jury find that (a) Emeana was
not in the path of Smith’s car before he fired and that (b) a reasonable officer in Emeana’s position
would not have felt threatened by Smith’s car until he placed himself in the car’s path,2 it could find
that Emeana’s use of force was unreasonable or excessive. The evidence is sufficient to permit a jury
to make that determination.
Emeana also argues that his use of force was justified by Smith’s flight. (Emeana Mot.
Summ. J., Dkt. 17, at 9–10). According to Emeana, during the 10-minute chase, Smith:
At least one federal appellate court has held that an officer is entitled to qualified immunity when a suspect is driving in
the officer’s “general direction” and the officer “could have been run over in about one second” if the suspect “turned
slightly” toward the officer. Waterman v. Batton, 393 F.3d 471, 479 (4th Cir. 2005). In Waterman, the suspect was driving at
11 to 15 miles per hour toward three officers located 16 to 72 feet from the car. Id. at 474–75. Noting that the officers
were faced with a “split-second decision” involving a suspect who had “just minutes” earlier reportedly tried to run
another officer off the road, the Fourth Circuit held as a matter of law that a reasonable officer could have believed that
the suspect posed a sufficient threat of physical harm to warrant qualified immunity. Id. at 480.
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Taken in the light most favorable to Smith, the facts in this case are distinguishable. First, Smith had not “used his
vehicle as a weapon against another officer just moments before.” Id. In fact, he had avoided running his car into
Emeana and Jackson’s cars. (Emeana Video, Ex. D-1, Dkt. 17, at 5:10–5:15). Second, Smith was driving at a slower
speed and the evidence creates a fact dispute concerning Emeana’s position relative to the path of Smith’s car. (See
Smith Decl., Dkt. 19-1, at 3).
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disregarded stop signs; blew through intersections; drove dangerously; drove down
the wrong side of the road, almost hit a turning vehicle, continued to run despite
being pursued by units with lights and sirens; drove through a yard and lot; was
cornered once in a cul-de-sac and turned and sped out, narrowly missing Officer
Emeana’s patrol vehicle; and once cornered in the next cul-de-sac, where the use of
force occurred, refused to give up.
(Id. at 9). Emeana states that Smith put the “public and officers at extreme risk” by
committing the felony of evading arrest in a motor vehicle and “going to extreme lengths
not to be captured.” (Id.).
But there is also evidence mitigating the dangerousness of Smith’s flight. As discussed above,
the chase took place just after five a.m. and very few cars or pedestrians were on or near the road.
(Emeana Video, Ex. D-1, Dkt. 17, at 1:20–10:24). Smith states that he “did not run any red lights”
and “did not greatly or unsafely exceed the speed limit” during the chase. (Smith Decl., Dkt. 19-1, at
2). Smith does, at times, appear to obey traffic laws. (Emeana Video, Ex. D-1, Dkt. 17, at 1:20–
10:24). Smith did not collide with any cars or other objects and avoided colliding with Emeana’s car.
(Id.).
Even if a suspect flees by car, the Supreme Court has not “declare[d] open season on
suspects fleeing in motor vehicles.” Lytle, 560 F.3d at 414. As the Supreme Court has recognized,
federal appellate courts have repeatedly held it to be unreasonable to shoot “suspects who may have
done little more than flee at relatively low speeds.” Mullenix v. Luna, 136 S.Ct. 305, 312 (2015) (citing
Walker v. Davis, 649 F.3d 502, 503 (6th Cir. 2011); Kirby, 530 F.3d at 479–80; Adams v. Speers, 473
F.3d 989, 991 (9th Cir. 2007); and Vaughan v. Cox, 343 F.3d 1323, 1330–31, and n.7 (11th Cir.
2003)). In Lytle, the Fifth Circuit held that a jury could find the use of deadly force to be
unreasonable when the plaintiff had fled for half a mile through a residential area and collided with
another car. Lytle, 560 F.3d at 416–17.

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Taken in the light most favorable to Smith, the evidence of his flight is such that a
reasonable jury could conclude that it was unreasonable to use deadly force to seize him. A
reasonable jury could decide that this case does not involve “a Hollywood-style car chase of the
most frightening sort,” Scott, 550 U.S. at 380, but rather a brief pursuit “at relatively low speeds.”
Mullenix, 136 S. Ct. at 312. A reasonable jury could also find in Emeana’s favor, but as in Lytle, the
evidence is such that the Court cannot take that determination away from a jury. See Lytle, 560 F.3d
at 416–17 (holding that while a jury could decide that the officer’s conduct was either reasonable or
not, the plaintiff’s driving was not “so menacing” that “any use of force in an attempt to stop it
would be objectively reasonable as a matter of law”).
2. Clearly Established Right
The doctrine of qualified immunity shields officials from civil liability so long as their
conduct “does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Pearson, 555 U.S. at 231 (citation and quotation marks omitted). A
clearly established right is one that is “sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” Mullenix, 136 S. Ct. at 308 (quoting Reichle v.
Howards, 566 U.S. 658, 664 (2012)). While there needs not be “a case directly on point . . . existing
precedent must have placed the statutory or constitutional question beyond debate.” Mullenix, 136 S.
Ct. at 308 (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011)).
The Supreme Court has instructed courts “not to define clearly established law at a high
level of generality.” Mullenix, 136 S. Ct. at 308. In doing so, the Supreme Court explicitly rejected the
rule from Tennessee v. Garner, 471 U.S. 1, 11 (1985), that a police officer may not “use deadly force
against a fleeing felon who does not pose a sufficient threat of harm to the officer or others.”
Mullenix, 136 S. Ct. at 308–09 (citation and quotation marks omitted). Instead, the Supreme Court
directed courts to determine “whether the violative nature of particular conduct is clearly established
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. . . in light of the specific context of the case,” rather than “as a broad general proposition.” Id. at
308 (citations and quotation marks omitted). In deciding these motions for summary judgment, the
Court must determine whether Emeana’s actions violated clearly established law when viewing
Smith’s evidence in the light most favorable to him and drawing reasonable inferences in his favor.
Tolan v. Cotton, 134 S. Ct. 1861, 1868 (2014). While a court “may look to other circuits to find clearly
established law,” it must “consider the overall weight of such authority.” Lincoln v. Turner, 874 F.3d
833, 850 (5th Cir. 2017) (citation and quotation marks omitted). A court must also consider
“whether that right has been defined with sufficient clarity to enable a reasonable official to assess
the lawfulness of his conduct.” McClendon v. City of Columbia, 305 F.3d 314, 331 (5th Cir. 2002); see
also id. at 332 (rejecting the application of a doctrine recognized in six other circuits because the
doctrine was recognized at a “general level” that did not provide the officer with “notice” that the
doctrine applied to him). The fundamental question, then is whether—viewing the evidence in the
light most favorable to Smith—Emeana would have had “fair notice” that his actions were
unreasonable. Hope v. Pelzer, 536 U.S. 730, 740 (2002).
Because Emeana argues that his use of force was justified both by Smith driving his car at
him and by Smith’s flight, (Emeana Mot. Summ. J., Dkt. 17, at 7–9), the Court must consider
whether clearly established law would have notified Emeana that his actions were unreasonable
under either justification.
The Fifth Circuit has stated explicitly that an officer’s use of force cannot be justified by
moving into the path of a suspect’s car. Edmond, 20 F.3d at 1170 (holding that “[s]ummary judgment
is properly denied” when “fact issues existed about whether a police officer’s use of force was
justified or was unreasonably created when he stepped in front of a moving car.”) (citation omitted).
Other circuits have announced the same rule. Kirby, 530 F.3d at 482 (stating, in a case where some
evidence suggested that the officer placed himself in danger by moving toward the plaintiff’s car,
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that “[w]here a police officer unreasonably places himself in harm’s way, his use of deadly force may
be deemed excessive.”); Estate of Starks, 5 F.3d at 234 (stating that if the officer had “stepped in front
of [the plaintiff’s] rapidly moving cab. . . then [the officer] would have unreasonably created the
encounter that ostensibly permitted the use of deadly force to protect him”). These cases suffice to
give a reasonable officer fair notice that it would be unreasonable to shoot a suspect in an oncoming
car if the officer moved into the car’s path.
Second, the law is clearly established that officers cannot use deadly force simply to seize a
suspect who has done “little more than flee at relatively low speeds.” Mullenix, 136 S. Ct. at 312
(citing Walker, 649 F.3d at 503; Kirby, 530 F.3d at 479–80; Adams, 473 F.3d at 991; and Vaughan, 343
F.3d at 1330–31, 1330 n.7). In Walker, a motorcycle driver refused to pull over for a traffic stop and
fled for five minutes. 649 F.3d at 503. The chase took place “on empty stretches of highway” at
speeds never above 60 miles per hour. Id. The driver ran a red light and ultimately drove off-road
across a field before the police took action that killed him. Id. In Adams, a driver refused to pull over
for a traffic stop and fled for 90 minutes. 473 F.3d at 991. The driver “drove largely within the speed
limit” but “nonchalant[ty]” in the manner of a “rapid Sunday drive.” Id. He stopped at some stop
signs and rolled through others. Id. He continued to flee even after police repeatedly tried to ram
him off the road. Id. In Vaughan, a police officer shot a passenger in a fleeing vehicle after the driver
had led police on a highway chase exceeding eighty miles per hour and had collided with a police
cruiser. 343 F.3d at 1326–27. In each case, the circuit court held that the law was clearly established
that the officer’s use of force—under the plaintiff’s version of the facts—was not entitled to
qualified immunity. Walker, 649 F.3d at 504; Adams, 473 F.3d at 994; Vaughan, 343 F.3d at 1333.
These cases are joined by others. In Lytle, the Fifth Circuit held that an officer was not
entitled to qualified immunity at the summary judgment stage when he shot and killed the passenger
in a car that had fled for half a mile through a residential area at speeds over 65 miles per hour and
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collided with another car. Lytle, 560 F.3d at 407–08, 416–17. In Cordova v. Aragon, 569 F.3d 1183
(10th Cir. 2009), the Tenth Circuit held that it was not reasonable as a matter of law for a police
officer to shoot a fleeing driver who fled at speeds between 30 and 50 miles per hour, twice drove
off the road, ran a red light, and drove on the wrong side of the highway. 569 F.3d at 1186–87, 1193.
In U.S. v. Bradley, 196 F.3d 762 (7th Cir. 1999), the Seventh Circuit upheld the conviction of a police
officer for willfully using excessive force when he shot into a car that had been fleeing at speeds of
25 miles per hour. 196 F.3d at 765, 767, 772.
Emeana points out that in Mullenix, the Court noted that it has “never found the use of
deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone
to be a basis for denying qualified immunity.” (Emeana Mot. Summ. J., Dkt. 17, at 18 (citing
Mullenix, 136 S. Ct. at 310 (citing Plumhoff v. Rickard, 134 S. Ct. 2012, 2021–22 (2014) (holding that an
officer acted reasonably in shooting a suspect who fled at speeds exceeding 100 mph, forced several
cars to change course, and ultimately collided with a police car); Scott, 550 U.S. at 375, 379–80
(holding that an officer acted reasonably in shooting a suspect that raced down two-lane roads at
over 85 mph, swerved around over a dozen cars, forced cars onto the shoulder, and ran multiple red
lights))).3 But as the Mullenix Court pointed out, “the mere fact that courts have approved deadly
force in more extreme circumstances says little, if anything, about whether such force was
reasonable in the circumstances here.” Mullenix, 136 S. Ct. at 312.
The more important question is whether federal appellate courts have denied qualified
immunity in circumstances similar to those in this case with enough regularity to give Emeana notice
that using deadly force would be unreasonable in the circumstances he faced on August 16, 2014.
Mullenix involved a similarly dangerous high-speed chase: it lasted 18 minutes at speeds between 85 and 110 miles per
hour, and a dispatcher had told the defendant officer that the suspect might be intoxicated and that he claimed to have a
gun and threatened to shoot police officers. Mullenix, 136 S. Ct. at 306. Emeana would not, however, have been aware of
the Mullenix decision at the time of the events in this case.

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Viewing the evidence in the light most favorable to Smith and drawing reasonable inferences in his
favor, a reasonable jury could find that he led police on a ten-minute low-speed chase in the middle
of the night and drove around Emeana to continue fleeing when he was shot. Under those facts,
Emeana would have used deadly force to seize a suspect who had done “little more than flee at
relatively low speeds,” Mullenix, 136 S. Ct. at 312, which (as the Supreme Court has recognized)
federal courts of appeal have repeatedly held is not a justification that entitles the officer to qualified
immunity.4 These decisions suffice to give Emeana notice that using deadly force in such
circumstances is unreasonable.
B. Section 1983 – Fourteenth Amendment
The Court agrees with the magistrate judge that the Fourteenth Amendment does not grant
citizens the right to be free from the excessive use of force by public officials. Graham, 490 U.S. at
395 (“Today we . . . hold that all claims that law enforcement officers have used excessive force—
deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen
should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than
under a ‘substantive due process’ approach.”). The Court therefore adopts the magistrate judge’s
recommendation that summary judgment be granted in favor of Emeana on Smith’s Section 1983
claim for the violation of his Fourteenth Amendment rights. (R. & R., Dkt. 28, at 21).

Some courts of appeal reach the same conclusion using a different analytical method, holding that when a suspect flees
in a vehicle at low speeds and does not endanger police or the public, Garner’s rule remains sufficient to clearly establish
that deadly force is not reasonable notwithstanding Mullenix’s requirement for a less general standard in dangerous highspeed chases. See Lewis v. Charter Twp. of Flint, 660 F. App’x 339, 347 (6th Cir. 2016) (“[W]here, as here, the facts viewed
in the light most favorable to the plaintiff permit a finding that a reasonable officer would not have perceived any
imminent threat to himself or others, the broader propositions of Graham and Garner suffice to clearly establish the right
at issue.”); see also Smith v. Cupp, 430 F.3d 766, 776–77 (6th Cir. 2005) (holding that it “is an obvious case where Tennessee
v. Garner clearly establishes the law” when “the facts support a finding that a reasonable officer . . . would not have
perceived danger to anyone at the scene”).
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C. State Law Assault
Smith also asserts that Emeana is liable for assault under Texas law. (Compl., Dkt. 1, at 6).
Emeana argues that he is entitled to summary judgment because state law grants him absolute
immunity. (Emeana Mot. Summ. J., Dkt. 17, at 20). Smith offers no response, (Resp. Emeana Mot.
Summ. J., Dkt. 19), and the magistrate judge recommends dismissing the claim for lack of
jurisdiction in light of his recommendation to dismiss all of Smith’s federal-law claims. (R. & R.,
Dkt. 29, at 22–23). Smith objects to that portion of the report and recommendation because he
disagrees that his federal claims should be dismissed. (Obj., Dkt. 29, at 13).
The Texas Tort Claims Act (“Act”) provides the exclusive remedy for tort claims against the
state, and it does not waive governmental immunity for assault claims. Tex. Civ. Prac. & Rem. Code
§ 101.057(2). Cities are governmental units under the Act. Id. § 101.001(3)(B). Under Section
101.106(f) of the Texas Civil Practices and Remedies Code, a suit against a government employee
acting within the scope of employment is a suit against the employee in his official capacity. See also
Franka v. Velasquez, 332 S.W.3d 367, 381 (Tex. 2011) (“[S]ection 101.106(f) . . . foreclose[s] suit
against a government employee in his individual capacity if he was acting within the scope of
employment.”). Smith alleges that Emeana was acting within the course and scope of his
employment at all relevant times in this case. (Compl., Dkt. 1, at 6). Because Smith’s state-law assault
claim is therefore asserted against the City of Killeen, which is immune from suit, this claim must be
dismissed.
D. Municipal Liability
The City’s Motion for Summary Judgment, (Dkt. 18), is based on the narrow argument that
it is not liable to Smith because Emeana did not commit a constitutional violation based on the
arguments asserted by Emeana in his motion, (id. at 2). The City explicitly reserved its argument that
is entitled to summary judgment on other grounds. (Id. n.1). As discussed above, the Court does not
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find that Emeana is entitled to summary judgment on Smith’s Fourth Amendment Section 1983
claim. The City’s motion is therefore denied on the same grounds.
V. CONCLUSION
For the reasons stated above, IT IS ORDERED that the Report and Recommendation of
the United States Magistrate Judge, (Dkt. 28), is ACCEPTED IN PART AND NOT
ACCEPTED IN PART.
Emeana’s Motion for Summary Judgment, (Dkt. 17), is GRANTED IN PART AND
DENIED IN PART. Emeana’s motion is GRANTED with respect to Smith’s Fourteenth
Amendment claim and Smith’s state-law assault claim, which are dismissed; it is DENIED in all
other respects.
The City’s Motion for Summary Judgment, (Dkt. 18), is DENIED.
SIGNED on March 8, 2018.
_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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