Cynthia GALVAN, Individually and as Next Friend of S. G., a Minor, Plaintiff-Appellant, v. CITY OF SAN ANTONIO; Officer Richard Smith, Badge # 0352, Individually and In His Official Capacity; Officer Richard Garcia, Badge # 1428, Individually and In His Official Capacity, Defendants-Appellees.
No. 08-51235
United States Court of Appeals, Fifth Circuit
June 1, 2010
309
Tim Maloney, Maloney & Campolo, San Antonio, TX, for Plaintiff-Appellant. David Michael Williams, City Attorney‘s Office, Mark Ralls, Gonzales, Hoblit, Ferguson, LLP, San Antonio, TX, for Defendants-Appellees.
No. 08-51235.
United States Court of Appeals, Fifth Circuit.
June 1, 2010.
Tim Maloney, Maloney & Campolo, San Antonio, TX, for Plaintiff-Appellant.
David Michael Williams, City Attorney‘s Office, Mark Ralls, Gonzales, Hoblit, Ferguson, LLP, San Antonio, TX, for Defendants-Appellees.
PER CURIAM:*
This case arises from the death of Sergio Galvan, who died after a struggle with Officers Richard Smith and Richard Garcia of the San Antonio Police Department on March 23, 2007. The issue before us is whether the district court properly granted summary judgment to the officers, dismissing Cynthia Galvan‘s (the widow of Sergio Galvan)
We review a district court‘s grant of summary judgment de novo and apply the same standards as the district court. See Beck v. Tex. State Bd. of Dental Exam‘rs, 204 F.3d 629, 633 (5th Cir.2000); see also
When the moving party asserts qualified immunity on summary judgment, the burden shifts to the non-moving party to show that qualified immunity does not apply. See Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.2007). Determining a defendant‘s entitlement to qualified immunity consists of two separate inquiries: First, we ask whether the facts alleged, taken in the light most favorable to the party asserting the injury, show that the defendant‘s conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). We then ask whether the right violated was clearly established at the time. Id. Although it is “often appropriate” to answer these two questions sequentially, courts may decide which of the two prongs to address first. Pearson, 129 S.Ct. at 818. Ms. Galvan has not met her burden of establishing excessive force under the first part of the test. Hence, we need not address whether the officers’ conduct violated a clearly established right. Hathaway, 507 F.3d at 320.
In order to establish an excessive-force violation under the Fourth Amendment, Ms. Galvan must show an “(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.” Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir.2005). Allegations of excessive force by police officers during arrest are analyzed for “objective
The officers, without contradiction, testified in depositions and affidavits about the following events leading up to Mr. Galvan‘s death: Around 3:00 a.m. on March 23, 2007, they responded to a 911 call about shots fired in a “rough” neighborhood--the area where the Galvans lived. There were also 911 hangup calls from the Galvans’ residence. Upon arrival, the officers heard screaming and yelling in the distance. When the officers discovered that Mr. Galvan was the source of the screaming, they identified themselves and offered their assistance. Mr. Galvan ran. During the ensuing chase, Mr. Galvan threw something. When the officers caught up, Smith attempted to communicate with Mr. Galvan, offering to help. Mr. Galvan responded by charging at Smith. Smith attempted to fend him off with two shots of pepper spray, but to no avail. Mr. Galvan then grabbed the cannister from Smith, and in the ensuing struggle, both fell to the ground. At that point, both officers attempted various open empty-handed techniques to subdue Mr. Galvan, but again, without success. Garcia then warned Mr. Galvan that he would use the Taser, which he did because Mr. Galvan continued to struggle. Despite the Taser use, Mr. Galvan continued struggling, but eventually, the officers were able to handcuff his hands behind his back while he has face-down. According to the officers, Mr. Galvan was very strong, and it is undisputed that he was on cocaine at the time.
In sum, when confronted with a rapidly evolving, volatile situation, the officers reacted with measured and ascending responses—verbal warnings, pepper spray, hand- and arm-manipulation techniques, and then the use of a Taser. They did not use force until Mr. Galvan attacked Smith. Under such circumstances, we find that the force used by the officers was reasonable. Ms. Galvan does not contend otherwise; instead, she disputes the officers’ version of the events—namely, that her husband violently resisted arrest. Having carefully reviewed the record, we agree with the district court that Ms. Galvan has not produced evidence to create a genuine issue of material fact on this matter, as is her burden. Accordingly, we hold that the officers did not violate the Fourth Amendment by using excessive force. See Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
AFFIRMED.