JOHN ALLEN, JR.; LAWTON ALLEN, JR.; ESTATE OF JOHN ALLEN, SR.; MR. SHERMAN ALLEN; MARTHA VAUGHN v. JUSTIN HAYS; CITY OF HOUSTON; TYLER SALINA; M. ARROYO; DIEGO MORELLI
No. 21-20337
United States Court of Appeals for the Fifth Circuit
March 21, 2023
Lyle W. Cayce, Clerk
Before SMITH, BARKSDALE, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
During a routine traffic stop, Houston Police Officer Justin Hayes fatally shot John Allen, Jr. Plaintiffs brought over a dozen claims against Hayes, two other involved police officers, and the city. The individual defendants claim the benefit of qualified immunity. After years of litigation, the district court, in ruling on a motion to dismiss in response to plaintiffs’ complaint, dismissed the claims in toto. Plaintiffs appeal the dismissal and
We agree with plaintiffs that dismissal of the
I.
On November 4, 2015, John Allen, Sr., was driving through Houston with friend Shannell Arterberry in the passenger seat of a pickup.1 Allen was a 58-year-old veteran known to the Houston Police Department (“HPD“) for his documented history of PTSD. He had twice struggled to comply with orders from Houston police, but officers had resolved both non-violent incidents with de-escalation tactics and follow-up mental health checks.
Late that night, Officers Justin Hayes and Tyler Salina stopped Allen for a routine traffic stop.2 After Allen pulled the truck over, the officers approached the passenger‘s and driver‘s sides of Allen‘s vehicle with pointed guns. Salina went to the driver‘s side and asked Allen to roll the window down, but the window did not function. Salina heard Allen state that he was going to reach for his wallet. On the passenger side, Hayes instructed Allen to stop moving, to stop reaching, and to remove his foot from the gas pedal. Hayes had a taser in his pocket but did not use it. Instead, within seconds and without further warning, Hayes leaned across Arterberry and fired six shots, hitting Allen five times at point-blank range.
Once Allen was on the ground, Hayes handcuffed him. At no point did any officer attempt to use any life-saving procedures on Allen. Emergency Medical Services was not called until six minutes after the shooting, only after Hayes had radioed for backup and the dispatching officer had checked the license plate. Handcuffеd on the ground, Allen died at the scene.
Seven officers searched the scene and found no weapons in the car or in Allen‘s pockets.3 Twenty-two days later, however, Mandy Arroyo, an Internal Affairs Division investigator for HPD, reported that his investigation of the truck turned up a gun in plain sight on the back seat. The city awarded Hayes an award for the incident involving Allen and promoted him to sergeant.
II.
The instant appeal is this case‘s second trip to this court. Plaintiffs’ case was removed to federal district court in January 2018, and the district court dismissed all their claims in August of that year. Plaintiffs appealed, contending that the district court hаd improperly weighed the evidence in
Upon return to the district court, plaintiffs filed their third amended complaint (the “live complaint“). That complaint alleged approximately twenty-three claims against Hayes, the City of Houston, and Officers Morelli and Arroyo. Again, defendants moved to dismiss per
III.
We review de novo the grant of a
At this stage, “[w]e accept all well-pled facts as true, construing all reasonable inferences in the complaint in the light most favorable to the plaintiff.” White v. U.S. Corrections, L.L.C., 996 F.3d 302, 306-07 (5th Cir. 2021) (citing Heinze v. Tesco Corp., 971 F.3d 475, 479 (5th Cir. 2020)). “Conclusory allegations, unwarranted factual inferences, or legal conclusions” are not accepted as true. Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (citing Southland Sec. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).
When a plaintiff pleads a
Qualified immunity shields government officials from liability if 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). The Supreme Court has laid out a two-part test to determine whether a defendant is entitled to qualified immunity: The plaintiff must show first, “whether the facts that a plaintiff has alleged ... make out a violation of a ... right” and second, “whether the right at issue was ‘clearly established’ at the time of defendant‘s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting Saucier v. Katz, 553 U.S. 194, 201 (2001)).
IV.
Plaintiffs bring
Excessive Force
Plaintiffs claim that Hayes‘s shooting of Allen was an excessive use of force that violated Allen‘s constitutional right to be free from unreasonable
To satisfy the first step of the above-discussed two-part test for qualified immunity, Allen must show that he “suffer[ed] an injury that result[ed] directly аnd only from a clearly excessive and objectively unreasonable use of force.” Cloud v. Stone, 993 F.3d 379, 384 (5th Cir. 2021) (citing Joseph ex rel. Estate of Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020)). This is an objective standard. The use of force is not excessive and unreasonable if “the officer[‘s] actions are objectively reasonable in light of the facts and circumstances confronting [him], without regard to their underlying intent or motivation.” Id. (quoting Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012) (alterations in original)). Many factors are relevant: “[W]ith ‘careful attention to the facts and circumstances of each particular case,’ courts consider ‘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 v. Connor, 490 U.S. 386, 396 (1989)). Courts will consider “not only the need for force, but also the relationship between the need and the amount of force used.” Id. (quoting Joseph, 981 F.3d at 332). And the reasonableness is “judged from the perspective of a reasonable officer on the scene,” instead of the “20/20 vision of hindsight.” Id. (quoting Graham, 490 U.S. at 396).
It follows that it is manifestly unreasonable for an officer to seize a suspect the officer knows is unarmed and not aggressive by shooting him dead. Poole v. City of Shreveport, 13 F.4th 420, 424 (5th Cir. 2021); see also Waller v. Hanlon, 922 F.3d 590, 599 (5th Cir. 2019). But if the officer believes the suspect has a gun, the calculation changes—even if there was never, in fact, a gun. This circuit has often found “an officer‘s use of deadly force to be reasonable when a suspect moves out of the officer‘s line of sight such that the officer could reasonably believe the suspect was reaching for a weapon.”
For example, many of our cases involve other factors that led the officer to suspect that the victim would resort to violence.5 Furthеr, “[e]ven when a suspect is armed, a warning must be given, when feasible, before the use of deadly force.” Poole, 13 F.4th at 425. And the use of force should be proportional to the threat. See Brothers v. Zoss, 837 F.3d 513, 519 (5th Cir. 2016). Thus, if the officer could reasonably use less than deadly force, he must.
The majority of these factors cut against Hayes. Plaintiffs have alleged that Allen was not carrying a gun (nor was there a gun in the car), that a reasonable officer would have known there was no gun, and that Allen never reached outside the officer‘s line of sight. Hayes had a taser he could have used instead of a gun, but he did not. Hayes never warned Allen that he would shoot. Taking these allegations as true, plaintiffs have pleaded sufficient facts plausibly to allege that Hayes‘s decision to shoot Allen was an excessive use of force.
It was well established, at the time of the shooting, that such use of deadly force against a person who the officer knows is not dangerous is a constitutional violation.6 Plaintiffs have plausibly alleged that Hayes knew Allen was unarmed and not aggressive. Their claim of excessive force thus survives the motion to dismiss.
False Arrest
Plaintiffs bring two claims of unlawful arrest and detention against Hayes. They first claim that Hayes unlawfully detained Allen when he pulled Allen over without reasonable suspicion. Their second claim is that Hayes unlawfully arrested Allen when he handcuffed him without probable cause.
The first allegation is that the initial traffic stop was an unlawful seizure. The Fifth Circuit analyzes the legality of traffic stops under the Terry standard, “a two-tiered reasonable suspicion inquiry: 1) whether the officer‘s
Plaintiffs’ complaint is inconsistent regarding whether Hayes suspected a traffic violation. Plaintiffs’ оpening brief suggests that the police officers pulled Allen over for a broken tail light and running a stop sign. Later, in their reply brief, they claim that Allen had not committed any traffic violations. Even so, an argument cannot be raised for the first time in a reply brief, so it is waived.7 Without a specific allegation that the traffic stop was without grounds, the claim of illegal detention is conclusory. The claim‘s dismissal is thus affirmed.
Plaintiffs’ allegation of unlawful arrest fares better. An arrest is unlawful if the officer did not have probable cause. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 206-07 (5th Cir. 2009). A seizure is an arrest if “a reasonable person in the suspect‘s position would have understood the situation to сonstitute a restraint on freedom of movement of the degree which the law associates with formal arrest.” Turner v. Lieutenant Driver, 848 F.3d 678, 692-93 (5th Cir. 2017) (quoting Carroll v. Ellington, 800 F.3d 154, 170 (5th Cir. 2015)). But “[u]sing some force on a suspect, pointing a weapon at a suspect, ordering a suspect to lie on the ground, and handcuffing a suspect ... do not auto-
Plaintiffs аllege it was an illegal seizure for Hayes to handcuff Allen after he had been shot six times, crashed into a tree, pulled out of his truck, and put onto the ground.8 The district court held that Allen “was handcuffed after disobeying Hayes‘s repeated instructions and driving away into a tree—which is unquestionably probable cause.” But accepting the facts as pleaded by plaintiffs, Allen never disobeyed Hayes‘s instructions, and driving into the tree was caused by “an involuntary reflex” that occurred “[f]ollowing the impact from the gunshots.” The district court thus construed the facts in favor of the defendants, which is error. Regardless, we analyze de novo.
If Hayes reasonably thought he saw a gun, then it would have been reasonable to handcuff Allen and not necessarily an arrest. See Sanders, 994 F.2d at 206-07. Conversely, if Hayes did not have reason to believe there was a gun, failing to use less intrusive procedures than handcuffs to detain Allen likely constituted an arrest without probable cause, especially given Allen‘s injuries. See id. Plaintiffs have alleged that nothing supports the contention that Hayes was reasonable in believing he saw a gun: There was never a gun in Allen‘s pocket, Salina had instructed Allen to pull out his wallet, and
But to survive the motion to dismiss, plaintiffs must also show that Hayes‘s actions clearly violated the Constitution. Sanders and Carroll were decided before Hayes‘s actions. The question is therefore whether they laid out the law with such particularity that Hayes would have known his actions were unconstitutional. See Manis, 585 F.3d at 845-46. Again, we construe all pleadings in favor of the plaintiffs. Taking as true that Hayes had no reason to believe Allen was armed and that Hayes knew Allen was seriously injured and likely could not move, a police officer would know, under these precedents, that to handcuff Allеn was an arrest without probable cause under clearly established law. Accordingly, we vacate and remand the dismissal of that claim.
Denial of Medical Care
Plaintiffs allege that Allen “was bleeding, moaning, groaning from pain, and in obvious and critical need of emergency medical care and treatment,” but Hayes “did not provide life-saving measures or timely summon medical care or permit medical personnel to treat Mr. Allen.” They contend that this denial of medical care was a constitutional violation.
The
Plaintiffs therefore need to allege sufficient facts to show that (1) Hayes was aware of facts from which the inference could be drawn that a substantiаl risk of serious harm existed and (2) he drew that inference. They have. Plaintiffs alleged that after Allen was shot five times at point-blank range and crashed into a tree, Hayes waited six minutes after the shooting to call for medical care, dragged Allen out of the truck, handcuffed him on the ground, and never attempted to provide CPR, oxygen, chest compressions, or any other life-saving measures.
The most on-point factual comparator is Cope v. Cogdill, 3 F.4th 198 (5th Cir. 2021), cert denied, 142 S.Ct. 2573 (2022). A jailer “watch[ed] an inmate attempt suicide and fail[ed] to call for emergency medical assistance.” Id. at 209. Instead, the jailer called his supervisor, who arrived at the jail approximately 10 minutes after receiving the jailer‘s cаll and then called 911. Id. at 203, 209. The court held that even though the jailer immediately called his supervisor, he should have known to call emergency assistance. The court stated, “[W]e now make clear that promptly failing to call for emergency
There are differences between that case and ours. First, Hayes was not a jailer but a police officer on duty. Second, unlike the jailer, Hayes eventually did call 911, albeit six minutes later. Those differences, however, are not distinct enough to rendеr Hayes‘s actions so different from the Cope defendant‘s unconstitutional conduct. Hayes knew that he had shot Allen five times. He called for backup but waited six minutes before calling for medical aid. The risk would have been apparent.
Plaintiffs must also show that the constitutional violation was clearly established at the time of Hayes‘s actions. Cope was decided after Hayes pulled Allen over and could not establish the law for Hayes. The Cope court, in a summary judgment posture, held that “[e]xisting case law . . . was not so clearly on point as to ‘place[] the statutory or constitutional question beyond debate.‘” Id. (quoting Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011) (en banc)). “Until today, we have nоt spoken directly on whether failing to call for emergency assistance in response to a serious threat to an inmate‘s life constitutes deliberate indifference.” Id. Still, the Cope court noted that Dyer had previously held “existing precedent showed that officers who, ‘despite being aware of the detainee‘s dire condition[,] did nothing to secure medical help’ at all were on ‘fair warning’ that their behavior was deliberately indifferent.” Id. (quoting Dyer, 964 F.3d at 384-85) (omission in original). Hayes‘s conduct was significantly more severe than that of the Cope defendant—unlike in Cope, where the jailer did not necessarily know the extent of the victim‘s injuries, Hayes knew he had shot Allen.
Plaintiffs have therefore pleaded sufficiеnt facts to make it at least plausible that Hayes‘s actions were a violation of clearly established law. As alleged, Hayes stood by for six minutes without performing any medical care
Race Discrimination
Plaintiffs contend that Hayes pulled Allen over because he was black, thus violating the Equal Protection Clause. To make out an equal protection violation, a party cannot merely prove disparate impact—he must “prove ‘the existence of purposeful discrimination’ motivating the state action which caused the complained-of injury.” Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997) (citing, inter alia, McCleskey v. Kemp, 481 U.S. 279, 292-93 (1987)). Specifically, “[d]iscriminatory purpose in an equal protection context implies that the decisionmaker selected a particular course of action at least in part because of, and not simply in spite of, the adverse impact it would have on an identifiable group.” Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995) (quoting United States v. Galloway, 951 F.2d 64, 65 (5th Cir. 1992)).
Plaintiffs allege nothing regarding Hayes‘s intent. Their entire allegation is that data in the Houston area tends to show that black drivers are stoрped at a higher rate and that a higher rate of searches of black drivers is unwarranted. We agree with the district court that at best, such data shows disparate impact, not discriminatory purpose. The dismissal of that claim is affirmed.
V.
Plaintiffs also bring a
The city is a municipality and cannot be held liable under
The Fifth Circuit interprets Monell as requiring a plaintiff to identify “(1) an official policy (or custom), of which (2) a policy maker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose ‘moving force’ is that policy (or custom).” Pineda v. City of Hous., 291 F.3d 325, 328 (5th Cir. 2002) (quoting Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001)).
The first requirement can be shown by “a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by an official to whom the lawmakers have designated policy-making authority” or thrоugh a “persistent, widespread practice.” Webster v. City of Hous., 735 F.2d 838, 841 (5th Cir. 1984) (en banc) (per curiam). Under the second requirement, a plaintiff must show “[a]ctual or constructive knowledge of [a] custom” that is “attributable to the governing body of the municipality or to an official to whom that body ha[s] delegated policy-making authority.” Id.; see also Valle v. City of Hous., 613 F.3d 536, 542 (5th Cir. 2010). Finally, a plaintiff must allege “moving force” causation by showing first, “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.” Valle, 613 F.3d at 542 (quoting Bd. of the Cnty. Comm‘rs v. Brown, 520 U.S. 397, 404 (1997)).
The ratification theory provides another way of holding a city liablе under
Claims Against the City of Houston for Events on the Night of the Shooting
Plaintiffs’ briefing raises a catalogue of claims against the city. Many are predicated on a failure-to-train contention, a notoriously difficult theory on which to base a Monell claim, as it requires plaintiffs to prove that the municipality was aware of an impending rights violation but was deliberately indifferent to it. City of Canton v. Harris, 489 U.S. 378, 389 (1989) (“Only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality—a ‘policy’ as defined by our prior cases—can a city be liable for such a failure under
But plaintiffs also allege a Monell violation via the theory of ratifica-
Though we lack caselaw on how a municipality might “ratify” the use of excessive force, the same analysis holds true. To succeed on a claim of excessive force via the ratification theory, plaintiffs would need to show that the city granted the certificate of bravery because the force was excessive. In other words, the constitutional violation itself must have been ratified. Even accepting all of plaintiffs’ contentions as true—as we must under Twombly—there are no allegations that the city was aware of the factors that potentially made Hayes‘s use of force unreasonably excessive. Without such allegations, plaintiffs cannot make out a showing of liability via ratification. Plaintiffs’ ratification claims are thus dismissed.
Spoliation of Evidence
Plaintiffs allege that the city “altered and edited videos of the November 4, 2015 shooting for purposes of avoiding liability and accountability,” the chain of custody is “questionable,” the city withheld evidence, and officers planted the gun that was later found in the car.
To make out this claim, plaintiffs would have to satisfy the Monell requirements or establish ratification to overcome the city‘s municipal im-
VI.
Plaintiffs’ remaining claims can be quickly disposed of.
Claims Against Morelli and Arroyo
All claims against Morelli and Arroyo were properly dismissed as time-barred. Plaintiffs had sought leave to add these defendants to their Second Amended Complaint on August 25, 2020, contending that the statute of limitations was tolled by fraudulent cоncealment. Before the district court ruled on that motion, plaintiffs filed the live complaint, incorporating Morelli and Arroyo into the pleadings without further reasoning.
Limitations for a suit brought under
Plaintiffs contend, however, that they satisfy
Plaintiffs attempt to use Univ. of Tex. Health Sci. Ctr. at San Antonio v. Bailey, 332 S.W.3d 395 (Tex. 2011), to argue that it would. There, the plaintiff was allowed to substitute the defendant‘s government employer as the named defendant even after limitations had run. Id. at 402. The plaintiffs misread Bailey.
Bailey is based on
So too here. The Texas law providing the statute of limitations does
Claims Brought Under the TTCA & Due Process Claims
Plaintiffs have not properly raised their TTCA or Due Process claims on appeal or in their reply to defendants’ response brief. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000). We therefore decline to address them here.
Americans with Disabilities Act Claims
The district court dismissed the claims against the city, Hayes, and Morelli for discrimination on the basis of mental health because “the [ADA] does not apply to the police‘s response to people with mental disabilities before the scene is secured,” and “Allen [gave] no legal support to the contrary.” See Hainze v. Richards, 207 F.3d 795, 801 (5th Cir. 2000).
On appeal, plaintiffs cite cases from other circuits that support a general right of action under the ADA for “(i) discrimination based on disparate treatment or impact, or (ii) denial of reasonable modifications or accommodations.”13 Even if plaintiffs were cоrrect that other circuits would allow a claim against police officers—a proposition that is far from clear—the law in this circuit is unequivocal: The ADA “does not apply to an officer‘s on-the-street responses to . . . incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer‘s securing the scene and ensuring
VII.
Plaintiffs request reassignment to a different district judge. We take judicial notice, however, that the current judge has taken senior status and has reassigned all of his pending cases; he will no longer be assigned this case on remand. Amended Division of Work Order for 2023, No. 2023-3 (S.D. Tex. Feb. 10, 2023). The request is therefore denied as moоt.
Plaintiffs have further alleged that the district court denied proper discovery. Because the case was in the motion-to-dismiss posture, not in the summary judgment posture, these claims are of no moment.
* * * * *
The claims of excessive force, unlawful arrest, and denial of medical care as brought against Hayes are REVERSED and REMANDED. The dismissal of the remaining claims is AFFIRMED. Plaintiffs’ request for reassignment is DENIED as moot. We intend no indication as to what actions the newly assigned district judge should take, or what decisions that judge should announce, on remand.