Tammy CASS, Individually, and as Executor of the Estate of Marcus Cass, Deceased; Matthew Cass; Jerry Cass; Kyle Cass; Nathan Cass, Plaintiffs-Appellants, v. CITY OF ABILENE; Chief Of Police Stan Standridge; Chris Smith, Defendants-Appellees.
No. 14-11134
United States Court of Appeals, Fifth Circuit
Feb. 24, 2016
In sum, the TCPA is procedural and we may not apply it when sitting in diversity. Even if, however, it could be said that the TCPA is substantive, then there is no doubt that it must yield to the Federal Rules of Civil Procedure because it directly conflicts with the pre-trial dismissal mechanisms of Rules 12 and 56.
I respectfully dissent.
Kelley Kemper Messer, Esq. (argued), Assistant City Attorney, Stanley Earl Smith, Esq., City Attorney‘s Office, Abilene, TX, for Defendants-Appellees.
Before DAVIS, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:
Officer Chris Smith, a detective with the Abilene Police Department (APD), fatally shot Marcus Cass during the execution of a warrant to cоllect certain business records of Abilene Gold Exchange, where Cass worked. Cass‘s surviving family members (Appellants) sued the City of Abilene, along with Smith and Chief of Police Stan Standridge in their individual capacities, alleging retaliation in violation of the First Amendment and various Fourth Amendment violations. Appellants appeal the district court‘s summary judgment order dismissing their excessive force and retaliation claims against Smith and Standridge on the basis of qualified
I.
A.
Until his death on December 13, 2012, Marcus Cass—together with Charles Camp—managed Abilene Gold Exchange, one of about eight similar businesses in Abilene, Texas that purchased jewelry and precious metals for cash. Cass and Camp maintained firearms at several easily accessible locations in the store, and signs on the front door warned that the employees were armed. Although Camp had a thirty-year-old felony conviction for possessing marijuana, Cass had no criminal record and could legally possess firearms. Abilene Gold Exchange had cooperated with APD in solving past crimes, and on several occasions APD officers had walked into the store and spoken with its employees without incident.
Nevertheless, multiple APD officers tеstified in depositions that Camp and Cass displayed an “anti-police” attitude, and particularly that they were unhappy with the burden of complying with state and local law requiring reporting of Abilene Gold Exchange‘s purchases. Early in 2012, APD began developing a proposed city ordinance that would require purchasers of precious metals to—among other things—hold purchased items for at least eleven days to give officers time to recover stolen items. A week before Cass‘s death, the Abilene City Council held a public meeting to discuss the proposed ordinance. Chief of Police Stan Standridge was the primary proponent of the ordinаnce at the meeting. Cass spoke in opposition to the eleven-day holding requirement, as did Ronald DeLauney, the owner of another gold exchange store. Both Cass and DeLauney emphasized that because the price of gold is highly volatile, an eleven-day holding requirement could have severe consequences when the price dropped after they purchased items. Cass also stated that APD had earlier told him that the ordinance was already in effect, which he found “a little disturbing.” DeLauney testified in his declaration that “Chief Standridge became visibly angry during Marcus Cass’ testimony.” After hearing from Standridge, Cass, DeLauney, and others, the city counсil narrowly adopted the ordinance with a compromise holding period of seven days.
Five days later, Smith, a detective newly assigned to APD‘s property crimes unit, called Abilene Gold Exchange as part of his investigation into a recent jewelry theft. Smith testified in his deposition that Camp answered the phone, Smith identified himself and told Camp what he was looking for, including the names of some individuals Smith was investigating, and Camp “was obviously upset, got upset on the phone, [and] started ranting and yelling at [Smith].” Smith testified that this reaction was unusual and made him suspicious, and that when Smith discussed it with his colleagues, they informed him that Abilene Gold Exchange should have
Based on his research, Smith suspected that Abilene Gold Exchange might be fencing stolen property and that he had probable cause to obtain a warrant for the reporting violations. On December 12, the day after he spoke with Camp, Smith submitted an affidavit to а state district judge and obtained a warrant authorizing him to search Abilene Gold Exchange‘s physical and electronic records for evidence pertaining to the reporting violations.
The next morning, the property crimes unit met to discuss executing the warrant, as is customary in APD. Although Smith‘s initial plan had been to simply walk in with another officer and serve the warrant, other officers who “were more familiar with the Gold Exchange” raised concerns about officer safety due to Cass and Camp‘s “anti-police” attitude, the presence of readily-accessible weapons in the store, and the possibility that Cass and Camp might be “hiding something” that would cause them to shoot police officers.2 Camp‘s felony conviction was also discussed as a factor to consider. Lieutenant Gary Bone, the head of the Criminal Investigation Division which included the property crimes unit, decided that for the safety of the officers, a team in body armor led by a uniformed officer would enter the business quickly with guns drawn to secure the premises and execute the warrant.
The available officers of the property crimes unit, led by Sergeant Kenneth Robinson and joined by patrol officer Tim Pipes, caravanned to Abilene Gold Exchange and parked down the street, out of sight of the business. Pipes was in his regular police uniform, and the оther three officers who would enter the business were wearing street clothes under bullet-proof vests. Smith‘s vest was solid black; the only indication of his identity as a police officer was his badge, which was attached to his belt on Smith‘s right side. Smith was also wearing dark sunglasses, which he did not remove upon entering the building. Unlike Smith, the other two officers on the entry team, Chris Collins and Chris Adams, had “POLICE” written in large white letters across their bullet-proof vests. Collins carried an assault rifle and the other officers entered with drawn handguns. Other officers waited at the back of the building.
The raid was captured on Abilene Gold Exchange‘s three video cameras. Pipes
The videos of the raid do not include audio recording, and the parties dispute what the officers said as they entered. Smith, Pipes, Adams, and Collins each testified that they personally yelled some variation of “police” and “search warrant.” Officer Cati Shriver, who remained outside until after Cass had been shot, testified that she was “maybe 50 feet” from the door and heard someone yelling loudly “Police, search warrant” just before the two gunshots. Bill Adams, a bystander, testified in his declaration that he was standing “about 20 to 25 feet from the front door of [Abilene Gold Exchange]” when the raid occurred, and that “I was expecting to hear [the officers] yell ‘police’ [or] ‘search warrant,’ but did not hear them yell anything. A few seconds later, I heard two gunshots.” In a declaration made in connection with his subsequent criminal prosecution, Camp gave the following account:
On the morning of December 13, 2012, the warrant was executed in a military fashion with all officers entering rapidly and yelling instructions.... While the police claimed they yelled “police, search warrant,” the only statement heard by Camp as he sat at a desk in an adjoining office was “get your hands up.” Camp never heard anyone yell “police, search warrant.” Camp contends the police were yelling loudly and it was difficult to discern the words they were yelling.
It is undisputed that Camp was compliant with the officers’ instructions throughout the raid.
After the shooting, the officers quickly secured the premises, handcuffed Cass, and began administering first aid. Paramedics arrived within minutes, but Cass succumbed to his wounds. In the following hours, APD officers obtained separate warrants for Abilene Gold Exchange and the neighboring business, and conducted a thorough search of the premises. Camp was arrested for unlawful possession of a firearm, and was later indicted for not paying approximately $150 in state taxes for purchases made over the internet. Appellants argue that APD has harassed and intimidated parties and witnesses to the shooting in an effort to cover up its misconduct.
Standridge was in San Antonio on the day of Cass‘s death and there is no sum-
B.
Cass‘s widow, children, and mother sued the City of Abilene, along with Smith and Standridge in their individual capacities, alleging under
The district court sustained Smith and Standbridge‘s evidentiary objections and granted their summary judgment motion in full. The district court determined that Appellants’ excessive force claim failed because Smith‘s use of force was a reasonable response to Cass‘s drawing his gun on Smith and Standridge was uninvolved in the shooting. The district court agreed that “the style and manner of executing the search warrant” was not “the wisest plan,” but that it was “at best negligent conduct and cannot form the basis of a constitutional violation.” The district court also determined that no genuine issue of material fact existed regarding the officers’ announcement that they were police officers. Finally, the district court rejected Appellants’ First Amendment retaliation claim because there was no evidence that Smith was aware of Cass‘s protected speech when obtaining and executing the warrant and because Standridge, who was aware of the speech, was uninvolved in the decisions relating to the warrant.
In light of its summary judgment ruling, the district court denied as moot Smith and Standridge‘s motion for judgment on the pleadings and signed a final judgment dismissing with prejudice all claims against Smith and Standridge in their individual capacities.
Appellants appeal the district court‘s summary judgment ruling.4
A.
“A grant of summary judgment is reviewed de novo, applying the same standard on appeal that is applied by the district court.” Tiblier v. Dlabal, 743 F.3d 1004, 1007 (5th Cir. 2014). A district court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
B.
Qualified immunity protects government officials from civil liability in their individual capacity to the extent that their conduct does not violate clearly established statutory or constitutional rights. Trent v. Wade, 776 F.3d 368, 377 (5th Cir.), reh‘g denied, 801 F.3d 494 (2015). “A good-faith assertion of qualified immunity alters the usual summary judgment burden of proof,” shifting it to the plaintiff to show that the defense is not available. Trent, 776 F.3d at 376 (internal quotation marks omitted); accord McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc).
A plaintiff seeking to overcome qualified immunity must show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011). Courts of appeal are free to decide which of the two prongs of the qualified immunity analysis to address first. Id.; see also Camreta v. Greene, 563 U.S. 692, 131 S.Ct. 2020, 2032, 179 L.Ed.2d 1118 (2011) (“[I]t remains true that following the two-step sequence—defining constitutional rights and only then conferring immunity—is sometimes beneficial to clarify the legal standards governing public officials.“). The second prong is satisfied only if “the state of the law at the time of the incident provided fair warning to the defendants that their alleged [conduct] wаs unconstitutional.” Tolan v. Cotton, — U.S. —, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (internal quotation marks omitted).
III.
A.
The district court correctly concluded that Standridge is entitled to qualified immunity on all of Appellants’ claims because there is no summary judgment evidence that he was involved in the alleged constitutional violations. The uncontroverted summary judgment evidence is that: (1) Standridge did not direct Smith or any other APD employee to investigate Cass, Camp, or Abilene Gold Exchange or to obtain or execute a warrant on them; (2) Standridge did not participate in the preparation of and request for the warrant
B.
Appellants’ claims against Smith, who personally investigated Abilene Gold Exchange, procured the warrant, and shot Cass, merit closer examination. As articulated in their briefs and at oral argument, Appellants’ three clаims are that: (1) Smith retaliated against Cass for speaking out against APD‘s proposed ordinance in violation of the First Amendment; (2) Smith used excessive force in violation of the Fourth Amendment when he fatally shot Cass; and (3) the unnecessarily forceful execution of the warrant violated Cass‘s Fourth Amendment rights.
1.
“The First Amendment prohibits not only direct limits on individual speech but also adverse governmental action against an individual in retaliation for the exercise of protected speech activities.” Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002). To establish a First Amendment retaliation claim, a plaintiff must show that: (1) he was engaged in constitutionally protected activity; (2) the defendant‘s actions caused him to suffer аn injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the defendant‘s adverse actions were substantially motivated by the constitutionally protected conduct. Id.
It is undisputed that Appellants have established the first two elements of their claim against Smith. Cass‘s public opposition to APD‘s proposed reporting ordinance was protected speech under the First Amendment. Smith‘s procurement of a warrant to inspect Abilene Gold Exchange‘s business records, and the execution of that warrant through a tactical raid with drawn guns would likely deter an ordinary person from further similar speech. Appellants argue that the investigation and raid on Abilene Gold Exchange were substantially motivated by Cass‘s protected speech at the city council meeting a week before his death. Smith counters that Appellants cannot prove retaliation because the warrant was supported by probable cause and Smith did not make the decision to tactically execute the warrant.
The evidence is uncontroverted that Smith, in the course of investigating a property theft, discovered that Abilene Gold Exchange had submitted over two dozen entries on Leads Online after the forty-eight hour window allowed by the Texas Occupatiоns Code, and that it had not reported any transactions in the past three weeks, despite having been open for business. Based on these facts, the state district judge correctly found probable cause to believe that Abilene Gold Exchange had committed a Class B misdemeanor under
Appellants argue, however, that even if the warrant was based on probable cause, the decision to execute the warrant as a surprise tactical raid with guns drawn was motivated by Cass‘s protected speech. It is undisputed that Smith originally intended to serve the warrant with a simple walk-in, and Appellants argue that he changed his mind and decided to execute a raid only after learning of Cass‘s public opposition to the proposed ordinance, such that “the only logical inference is that Smith‘s decision to change the execution plan was motivated by ... his fellow officer‘s views regarding Cass’ comments at the recent City Council meeting.”
Appellants’ retaliation claim against Smith fails because it is premised on the incorrect assumption that it was “Smith‘s decision to change the execution plan.” Instead, the officers present at the meeting—including Smith and Bone—uniformly testified that the decision to conduct a raid rather than calmly walk in with the warrant was made by Bone, who as head of the whole Criminal Investigation Division was two levels above Smith in the chain of command. Appellants offer no contrary evidence. This is fatal to their claim, because even assuming arguendo that the decision was retaliatory,5 Smith was not the decision-maker, and he cannot be held liable for retaliation on the basis of Bone‘s decision to execute the warrant with more
2.
Appellants argue that Smith‘s use of deadly force against Cass was excessive under the Fourth Amendment. The use of deadly force is subject to the Fourth Amendment‘s reasonableness requirement. Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). “In the Fifth Circuit, to succeed on an excessive force claim, the plaintiff bears the burden of showing: (1) an injury (2) which resulted directly and only from the use of force that was clearly excessive to the need and (3) the force used was objectively unreasonable.” Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000) (citation and internal quotation marks omitted). “The [u]se of deadly force is not unreasonablе when an officer would have reason to believe the suspect poses a threat of serious harm to the officer or others.” Carnaby v. City of Houston, 636 F.3d 183, 188 (5th Cir. 2011) (quoting Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003)); accord Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir. 2008). “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (U.S. 1989). “[T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397. “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgmеnts—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 396-97.
The video evidence in this case shows that as Smith crossed the doorway to Cass‘s office, he saw Cass approaching him and drawing his handgun, at most a few yards from Smith. As Cass continued to raise his gun and pointed it at Smith, Smith fired twice, causing Cass to drop his gun and slump to the floor. The encounter lasted no more than a couple seconds; neither man had time for reflection. As the district court correctly concluded, “[n]o reasonable juror could conclude that at the time of the shooting Defendant Smith did not reasonаbly perceive a threat to himself and the other officers.” Indeed, we have held that officers were entitled to qualified immunity for their use of deadly force when facing less immediate threats. See, e.g., Ramirez, 542 F.3d at 128-31 (reversing denial of summary judgment on qualified immunity grounds where officer shot plaintiff who held gun but did not raise, discharge, or point it at officers).
Appellants argue that “[t]he district court erred in allowing the Individual Defendants to create a dangerous, deadly situation and then avoid liability for their acts due to the alleged ‘necessity’ of having to respond with deadly force to the very situation they created.” We agree that by choosing to conduct the raid with surprise and with guns drawn, APD created a dangerous situation that led to Cass‘s death. Nevertheless, our precedent forecloses consideration of this context in evaluating Appellants’ excessive force claim:
The excessive force inquiry is confined to whether the officer was in danger at the moment of the threat that resulted
in the officer‘s shooting. Therefore, any of the officers’ actions leading up to the shooting are not relevant for the purposes of an excessive force inquiry in this Circuit.
Harris v. Serpas, 745 F.3d 767, 772 (5th Cir. 2014) (internal citation, quotation marks, and modifications omitted), cert. denied, — U.S. —, 135 S.Ct. 137, 190 L.Ed.2d 45 (2014). Because Smith reasonably believed himself to be in immediate danger when he shot Cаss, the shooting did not violate the Fourth Amendment and Smith is entitled to qualified immunity on Appellants’ deadly force claim.
3.
In a distinct Fourth Amendment excessive force claim, Appellants argue that APD‘s execution of the warrant was unreasonable, creating a dangerous situation with a high likelihood of serious bodily injury or death. Appellants cite evidence that Abilene Gold Exchange had a history of cooperating with police, none of the officers had ever been threatened by an employee of the business, and the alleged crime upon which the warrant was predicated—failure to properly report purchases of precious mеtals—was only a Class B misdemeanor. Appellants also argue that a fact issue exists as to whether the police announced themselves upon entry.
Viewing this evidence in the light most favorable to Appellants, a reasonable juror could find APD‘s use of force, coupled with the failure to announce, to be objectively unreasonable in violation of the Fourth Amendment.6 Smith argues that the raid was justified by the presence of guns, Camp‘s felony conviction, a general sentiment that Camp and Cass had an “anti-police attitude,” and the suspicion that Abilene Gold Exchange might be involved in criminal activity more serious than the bookkeeping violations that were the subject of the warrant. However, neither an unsubstantiated suspicion that crime may be afoot nor a general consensus among officers that business owners have an “anti-police attitude” justifies a surprise tactical raid on a lawful business, particularly one with a history of cooperating with the police. Nor does the mere presence of guns or a decades-old nonviolent conviction automatically permit the use of force employed here by APD. See Gould v. Davis, 165 F.3d 265, 272 (4th Cir. 1998) (rejecting officers’ argument that mere presence of handguns in house justified forceful entry and denying qualified immunity despite officers’ having obtained no-knock warrant). Viewing the evidence in the light most favorable to Appellants, various APD officers had entered Abilene Gold Exchange on numerous occasions as part of criminal investigations without ever being threatened, giving APD no reason to expect a violent response. On these facts, a reasonable juror could find that Smith‘s use of force violated Cass‘s Fourth Amendment rights and unnecessarily created a dangerous situation that made Cass‘s death likely.
However, Appellants also have the burden to show that Smith violated Cass‘s clearly established rights. Appellants’ entire argument on this second prong of the qualified immunity test is that “it is clearly established in the law that citizens are protected against unjustified, excessive police force.” This general statement is insufficient to meet Appellants’ burden. See Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2084, 179 L.Ed.2d 1149 (2011) (“We have repeatedly told courts ... not to
We note that the district court did not reach the “clearly established” prong. Moreover, Smith entirely failed to argue that Cass‘s right was not clearly established, and on an ordinary affirmative defense, Smith would bear the burden of proving the defense. Nevertheless, our precedent dictates that “once a defendant invokes qualified immunity, the burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity.” Kovacic v. Villarreal, 628 F.3d 209, 214 (5th Cir. 2010). We conclude that on this record, Appellants have not shown a violation of clearly established law so as to satisfy this burden.
IV.
For the foregoing reasons, we AFFIRM the judgment of the district court.