Opinion
Civil Action No. EP-99-CA-76-EP.
July 10, 2000.
ORDER
On this date the Court considered Defendant, United States of America's Motion for Summary Judgment, filed April 17, 2000, the Plaintiffs' response to that motion and the Defendant's reply. After careful consideration, the Court will grant the motion in part and deny it in part. Also on this date the Court considered the Defendant City of El Paso's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, filed April 17, 2000, the Plaintiffs' response to that motion and the Defendant's reply. After careful consideration, the Court will grant the motion, Also on this date the Court considered Defendant City of El Paso's Motion to Strike and Objections to Plaintiffs' Summary Judgment Proof. The Court will deny this motion.
Background and Procedural History
On March 17, 1997, Maria Susana ("Suzy") Alvarez was shot and killed by her husband, Alejandro Alvarez, a United States Border Patrol agent. In killing his wife, Agent Alvarez used the duty weapon the Border Patrol had issued to him. Agent Alvarez was convicted of his wife's murder.
Suzy Alvarez's death was the culmination of a lengthy abusive relationship with her husband. She had gone to the El Paso police department several times with claims of abuse, even visiting a police station the night before she was killed. Mrs. Alvarez had also complained to the Border Patrol, her husband's employer.
Agent Alvarez did not have a particularly impressive employment record at the Border Patrol. He was originally hired in November 1988 and was stationed in Laredo, Texas. In 1992, he transferred to El Paso. In October 1994 he received a reprimand for conduct unbecoming a Service officer. According to the U.S.'s summary judgment evidence, this conduct appears to be aggravated assault against Suzy Alvarez. In March 1995, he received a three-day suspension for sleeping on duty. This was followed shortly by three more incidents of sleeping on duty and two unauthorized absences from work. In June 1995, he told the Border Patrol that he had a drinking problem for which he required help. Subsequently, he was counseled for poor performance, and was observed looking "gaunt and haggard" and reaching for the butt of his gun when asked if he was all right. (Def. U.S.A. Exhibit 5). In August 1995, he was admitted to a rehabilitation center, and on August 31, 1995, he was issued a firm choice letter indicating that he had to either receive effective alcohol treatment or he would be fired. The letter also indicated that he would be fired if he engaged in "any misconduct such as sleeping on duty, alcohol or drug related misconduct, or [had] alcohol or drug related performance deficiencies." On March 31, 1996, he was arrested for driving while intoxicated. This arrest resulted in a letter from the Border Patrol proposing Alvarez's removal as an agent. Despite this letter, he was not fired. He did, however, sign a last chance agreement in August 1996, indicating he would comply with Border Patrol regulations or else he would lose his job.
Szuy Alvarez had several dealings with the El Paso Police Department concerning her husband during the course of her marriage. In March 1993, she went to the East Valley Station with complaints of abuse. While there, the desk officer suggested that she deal with this problem through the civil justice system, so as not to injure the Border Patrol's reputation. In March 1994, she again went to the police. This time a complaint was filed. Arrest warrants were issued for Alejandro Alvarez but were eventually canceled. There is a fact issue about whether Suzy Alvarez actually requested that the charges be dropped. On June 15, 1994, police went to the Alvarez home because of a fight. Later, Suzy called the detective on the case and requested that charges be dropped. She again went to the police station on June 18, 1994 reporting that her husband had assaulted her and had pointed a gun at her and threatened to kill her. A complaint was filed, and a police report later indicates that Suzy Alvarez did not want to press charges on this complaint. Police were again called to the Alvarez home in April 1995, resulting in a written complaint being filed.
Additionally, Alejandro Alvarez had another series of incidents involving the El Paso police. On March 31, 1996, Juana Bellah, a woman who had dated Alejandro Alvarez shortly before the incident, called the police because Alejandro was drunk, beating on her door and yelling. He also threatened to kick in the door. Ms. Bellah called the police. Officers Lom and Wilburn arrived approximately two minutes later. Ms. Bellah told them that Mr. Alvarez was her ex-boyfriend, that he was a border patrol agent and that she wanted them to take him home. She testified at her deposition that the police officer's demeanor changed immediately once they heard he was a border patrol agent. The officers drove him home but left his car parked in her driveway. The officers dropped him off at his apartment, without turning him over to anyone.
Alejandro Alvarez's brother had been Officer Lom's partner in the police department
Ms. Bellah then left her house. Once she returned, she discovered that her house had been burglarized. She again called the police, telling them that she suspected that Alejandro Alvarez had committed the crime. Two different officers arrived at her house. While the officers were investigating the burglaries, Mr. Alvarez drove up to her house. Once he pulled into the driveway, the officers smelled alcohol and asked Mr. Alvarez to get out of his car. He refused to cooperate, became aggressive, and was arrested for driving while intoxicated and resisting arrest.
The evening before she was murdered, Ms. Alvarez went to the El Paso Shelter for Battered Women but was turned away because of a policy of not accepting women into the shelter unless they had a police escort. She then went with her sister, brother-in-law, and children to the East Valley police station in El Paso. Although there are fact disputes about details of this visit, when viewed in the light most favorable to the Plaintiffs, they arrived at the station around 6 p.m. Ms. Alvarez requested a police escort to the shelter. It is undisputed that she originally told the officer at the front desk that her husband had not abused her in the immediate past. Her sister, Dolores Olivas, however, told the officer that Mr. Alvarez had previously taken his wife to the desert, pointed a gun at her head and threatened to kill her. Once her sister showed the officer a burn on Ms. Alvarez's arm, Ms. Alvarez told the officer that her husband had caused the burn. At some point, the officer called for a police escort, but refused to take Ms. Olivas to pick up diapers and milk for Ms. Alvarez's baby. Ms. Alvarez decided to go back home and return to the station for an escort the next day when her husband would be at work. The desk officer did not try to change her mind and held the door open for her on her way out. She and her family left the station around 6:53 or 6:58. The next day, after having left Alejandro Alvarez, she was killed at her mother's house.
Mrs. Alvarez's estate, her children and her mother bring suit against the City of El Paso (the "City") and the United States of America. They sue the United States under the Federal Tort Claims Act, 28 U.S.C. § 2674 ("FTCA") for negligently entrusting Agent Alvarez with a firearm. They sue the City under 42 U.S.C. § 1983 for violation of due process and equal protection rights. They also sue the city for negligence.
In its motion for summary judgment, the United States argues that it is entitled to sovereign immunity under the discretionary function exception of the FTCA, 28 U.S.C. § 2680 (a). In its motion the City argues that it is immune from the state law claims and that the Plaintiffs cannot establish either their Due Process or Equal Protection claims. The City also filed a motion to strike various pieces of the Plaintiffs' summary judgment evidence. This motion is denied because the Court finds the evidence actually used in ruling on the motion for summary judgment to be admissible.
Summary Judgment Standard
In the usual case, the party who seeks summary judgment must show by affidavit or other evidentiary materials that there is no genuine dispute as to any fact material to resolution of the motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986); Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990); Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. See Celotex Corp., 477 U.S. at 325; Lavespere, 910 F.2d at 178.
Once the moving party has carried that burden, the burden shifts to the nonmoving party to show that summary judgment is not appropriate. See Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir. 1991). The nonmoving party cannot discharge this burden by referring to the mere allegations or denials of the nonmoving party's pleadings; rather, that party must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324; Fields, 922 F.2d at 1187. In order for a court to find there are no genuine material factual issues, the court must be satisfied that no reasonable trier of fact could have found for the nonmoving party or, in other words, that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Liberty Lobby, 477 U.S. at 249-50; FED. R. CIV. P. 56(e).
Where the party opposing the motion for summary judgment will have the burden of proof on an essential element of his case at trial and does not, after adequate time for discovery, make a showing sufficient to establish the existence of that element, summary judgment may be entered against him. Celotex, 477 U.S. at 322-24; Fontenot, 780 F.2d at 1194-95.
Discretionary Function — FTCA
The FTCA generally waives the United States' sovereign immunity for tort claims, such that the United States is liable "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. Within this broad waiver of sovereign immunity, the FTCA provides an exception for claims involving the exercise of discretionary functions. This exception provides that sovereign immunity is not waived for:
The Fifth Circuit has held, therefore, that for a claim of negligence to be actionable under the FTCA, the ditty involved in the claim must be created by state law. Johnson v. Sawyer, 47 F.3d 716, 729 (5th Cir. 1995). An FTCA claim cannot be based on a violation of federal statute, even when the plaintiffs are claiming that the violation of a federal statute constitutes negligence per se under state tort doctrine, Id. Therefore, Plaintiffs' claim that the United States was negligent per se based on its violation of 18 U.S.C. § 44 and Tide VII of Public Law 90-351 is not actionable under the FTCA.
Any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.28 U.S.C. § 2680 (a).
Exceptions to the FTCA's waiver of sovereign immunity are to be construed in favor of the government. McNeily v. United States, 6 F.3d 343, 347 (5th Cir. 1993).
Whether the discretionary function exception applies is determined by a two-part test. To be a discretionary function, first there must be an element of judgment or choice involved. Gaubert, 499 U.S. at 322-23. If a statute, regulation or policy requires a particular course of action, then this first prong is not met because the government employee has no choice but to comply. Id. at 322. Secondly, the judgment or choice must be based on public policy considerations. Id. at 323.
Negligent Supervision and Retention
The claims that the United States negligently supervised and retained Agent Alvarez relate to two kinds of decisions made about him. Particularly, the Plaintiffs argue that the United States was negligent in the discipline it took against Alvarez. Additionally, they argue that the United States should have acted differently concerning Alvarez's drug use. In terms of the issues addressed by the United States' motion, the Plaintiffs point to two policies: the Standard Schedule of Disciplinary Offenses and Penalties for Employees of the U.S. Department of Justice and the Immigration and Naturalization Service's Drug Free Workplace Program.
Courts of Appeal have frequently held that employment decisions, such as whom to hire or how to supervise an employee are discretionary functions. See, e.g. Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1217 (D.C. Cir. 1997) ("hiring, training, and supervision choices ..are choices `susceptible to policy judgment'"); Tonelli v. United States, 60 F.3d 492 (8th Cir. 1995) (dismissing negligent hiring claims and stating that "issues of employee supervision and retention generally involve the permissible exercise of policy judgment and fall within the discretionary function exception).
Nevertheless, the general understanding that there is no discretion to violate policy must apply in the employment context, as well. The Plaintiffs point to several policies which they argue were violated by the United States. Although most of these policies give the Border Patrol discretion in their decisions involving the supervision and retention of employees, a fact question exists as to whether the drug program provided any discretion not to discipline Alejandro Alvarez.
Upon a finding of drug use, the employee must be receive some kind of disciplinary action, although the extent of the disciplinary action appears to be subject to the supervisor's discretion. See also Supervisor's Guide at 7. Additionally, the INS' Drug Free Workplace — Applicant and Employee Drug Testing Program provides that "[u]pon a finding of illegal drug use, action shall be taken as specified in Chapter 4, paragraph K. of the DOJ plan."
The Court notes that this statement is from the section of the policy concerning random testing.
The DOJ Plan describes that an DOJ employee may be "found" to use drugs "on the basis of any appropriate evidence." ( Id. at K.1) This evidence includes direct observation or evidence from an arrest or conviction. In this case, there is a fact question as to whether the INS had "any appropriate evidence." The Plaintiffs have presented evidence that the records from Agent Alvarez's stay at a rehabilitation center were sent to INS office of security in DC. These records indicated a daily use of cocaine and heroin. This could possibly be a finding of drug use.
Therefore, although the extent of the discipline is left to the supervisor's discretion, there was no discretion not to impose some discipline upon a finding of drug use. Therefore, there is a fact question as to whether the United States is entitled to immunity, and therefore the Plaintiffs' claims based on negligent supervision and retention can survive based on the question whether the Border Patrol had a finding of drug use which would require some disciplinary action to be taken against Agent Alvarez.
Alternatively, the Plaintiffs also appear to argue that the supervisors should have tested under the reasonable suspicion testing program. The Department of Justice Drug-Free Workplace Plan provides that "first-line supervisors shall . . . [i]nitiate a reasonable suspicion test after first making appropriate factual observations and document those observations and obtaining approval from the second line supervisor." (DOJ Plan at Ch. 3 G. 2.) Additionally, the plan provides that:
Reasonable suspicion testing may be based upon, among other things:
(1) Observable phenomena, such as direct observation of drug use or possession and/or the physical symptoms of being under the influence of a drug;
(2) A pattern of abnormal conduct or erratic behavior . . .
(4) Information provided either by reliable and credible sources or independently corroborated
(DOJ Plan at Ch. 4, A. 3).
Nothing in this provision makes ordering reasonable suspicion testing mandatory. Although a fact question exists whether there were observable phenomena, a pattern of abnormal conduct or erratic behavior, or whether the INS in DC had received information under paragraph (4), a resolution of these questions in the Plaintiffs' favor would not take the decision out of the discretionary realm
Negligent Entrustment of Firearm
Although neither side points to any cases on point, the decision whether to entrust a border patrol agent with a firearm would generally appear to be a discretionary function. Whether to issue an agent a firearm involves a choice or judgment, and the enforcement of laws at the border would implicate policy.
The Court has found no statute, regulation, or policy that would remove the United States' discretion in this regard. The Plaintiffs point to several violations of the INS Firearm Policy by Agent Alvarez, but these violations do not address the issue of whether the INS had discretion to entrust him with a firearm. Whether Agent Alvarez violated the policy by carrying his gun does not address the issue of the United States' discretion. Therefore, the United States is entitled to claim immunity based on the discretionary function.
Therefore, the United States is entitled to immunity based on the discretionary function exception to the FTCA for the negligent entrustment claim.
City of El Paso
The Plaintiffs bring several claims against the City for violation of due process, violation of equal protection and negligence. To establish a claim under 42 U.S.C. § 1983, the Plaintiffs must establish both a violation of the Constitution or the laws of the United States and that the violation was committed by a person acting under color of state law.
Substantive Due Process
As a general rule, in the absence of a "special relationship" the state has no obligation under the Due Process Clause of the Fourteenth Amendment to provide protection from a private person. DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 200 (1989). DeShaney is applicable to this case, and therefore, it would appear that there is no cause of action based on the City's failure to protect Ms. Alvarez. The Plaintiffs argue, however, that they have a claim under the Due Process Clause based on the theory of state-created danger.
The Fifth Circuit has held that a special relationship only arises when a party is involuntarily confined through the affirmative use of state power. Walton v. Alexander, 44 F.3d 1297, 1306 (5th Cir. 1995).
Although the Fifth Circuit has never recognized a due process claim based on state-created danger, it also has not eliminated the possibility of such a claim. Piotrowski v. City of Houston, 51 F.3d 512, 515 (5th Cir. 1995); Johnson v. Dallas Indep. Sck Dist., 38 F.3d 198, 201 (5th Cir. 1994). For liability under this theory, a state actor must have created a dangerous environment, he must know of its dangerousness and he must have created an opportunity that would not have existed otherwise for the third party's crime to occur. Johnson, 38 F.3d at 201.
The Plaintiffs argue that when the City entered into a contract with the El Paso Shelter for Battered Women to provide transportation to the shelter they increased Ms. Alvarez's vulnerability to private violence. They also argue that this contract removed her ability to engage in self-help because it resulted in the Shelter's refusal to accept women who arrive at the shelter without a police escort. However, the contract between the City and the shelter cannot form the basis of a state created danger claim because the "`state-created danger' theory is inapposite without a known victim." Saenz v. Heldenfels Bros., 183 F.3d 389, 391 (5th Cir. 1999) (holding that a sheriff's decision to permit a drunk driver to stay on the road does not implicate due process because the due process clause concerns deliberate deprivations and the sheriff was not aware that the eventual victims of the driver were on the road). Furthermore, the City's contract with the shelter was for the police to provide an escort to the shelter and an escort to allow the victim to pick up personal items. (Plaintiff's App. at kk). There is no evidence that it was anything but purely the shelter's policy not to accept women without an escort. ( Id. at N, KK) There is no evidence that the City had anything to do with the creation of this policy. Therefore, the City did not create the danger caused by the shelter's policy.
Additionally, the Plaintiffs argue that the police department's refusal to escort her immediately to the shelter, when combined with the agreement between the City and the shelter, created a danger in violation of the Constitution. Again, there is no evidence that the City played any role in creating the shelter's policy. Furthermore, the Plaintiffs have produced no evidence that time Ms. Alvarez was waiting, and would have to wait, for an escort was a dangerous environment created by the police. The Plaintiffs make much of the officer's escorting of Ms. Alvarez from the station (described elsewhere as holding the door open), but this act, which came after Ms. Alvarez had decided to leave did not create a dangerous situation Therefore, the Plaintiffs' claims for due process violations must fail.
Additionally, the Plaintiffs' response includes a section entitled "El Paso Police Department Deliberately Ignored Texas Criminal Law Mandates." In this section, the argue they the City violated various aspects of Texas law by not protecting Suzy Alvarez, by not arresting Alejandro Alvarez without a warrant and by not filing a written report. The Plaintiffs do not argue how these violations apply to their claims. These violations do not implicate a fundamental right, nor do they form the basis of a procedural due process claim.
Equal Protection
Although in the absence of a special relationship or perhaps in the situation of state-created danger, there is no constitutional right to police protection, the police may not "selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause. DeShaney, 489 U.S. at 197 n. 3. Generally, equal protection claims are concerned with discrimination on the basis of a class. Wheeler v. Miller, 168 F.3d 241, 251 (5th Cir. 1999). To establish an equal protection claim, the Plaintiffs must first establish that others similarly situated were treated differently. Id. at 252. Further, this discrimination must have been intentional. Edwards v. Johnson, 209 F.3d 772, 779 (5th Cir. 2000). The two groups the Plaintiffs allege were deprived of their rights to equal protection of the laws are: 1) victims of domestic violence and 2) victims of acts of domestic violence committed by law enforcement personnel.Several courts have recognized that victims of domestic violence can be a class protected by the equal protection clause. See e.g. Shipp v. McMahon, 199 F.3d 256 (5th Cir. 2000); Navarro v. Block, 72 F.3d 712, 717 (9th Cir. 1996). When recognized, this claim is often tied to the idea that discrimination against victims of domestic violence is discrimination against women, a well-established protected class. Shipp, 199 F.3d at 262 (describing claims that a sheriff's office "afforded less protection to women victims of domestic violence than other victims"). The Court will assume without deciding, that the second category, that of victims of domestic abuse committed by law enforcement officers can form the basis of an equal protection complaint, as well.
Policy
Respondeat superior cannot form the basis of a municipality's liability under Section 1983. Monell v. Department of Soc. Servs., 436 U.S. 658, 691 (1978). Vicarious municipal liability, then, only arises when the injury is based on the municipality's policy or custom. H Policy can either be officially adopted by a lawmaking official or it can include "a persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy." Bennet v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984).
The Plaintiffs have not presented evidence of policy to support municipal liability for Ms. Alvarez's dealings with police officers. They have not provided evidence of a widespread practice common enough to be policy. They have pointed to no evidence that any policy maker was involved in any of the times Ms. Alvarez sought police protection or aid.
The Plaintiff did not sue any of the officers in their Individual capacities.
The Plaintiffs have not clearly established what the policy at issue is. See Plaintiff's Response at 7 ("custom and practice of shielding Alejandro Alvarez, a fellow law enforcement officer, from arrest and further intervention from the criminal justice system"); Id. at 8 ("policy of shielding agents or police relatives"); Id. at 10 ("policy or custom of discriminatory or disparate treatment of domestic violence victims"); Id. at 11. ("widespread practice of favoritism and shielding of law enforcement domestic abuse"); Id. at 17 ("custom of treating law enforcement domestic abuse less seriously than other crimes").
Regarding their argument that the City had a policy of treating victims of domestic violence worse than victims of other crimes, the Plaintiffs present an affidavit of a former domestic violence instructor who taught a seminar which "a large group" of El Paso police officers attended. She stated that she "witnessed negativity and obvious resistance from the officers to treating victim complaints as reports of crime. Several officers openly and loudly stated in the presence of supervisors that they would not do anything at a domestic violence call because the female victim would later drop charges and it would be a waste of police time." (Gina Orona-Ruiz Aff. at ¶ 9). However, she gave no indication of the reaction of the supervisors. Comments made by individual officers are not policy.
The Plaintiffs point to three different incidents when Ms. Alvarez went to the police as indicative of policy. (pp 9-10). However, the three items, even when combined, do not show the existence of a fact issue on the question of policy. Three is Isolated incidents do not establish a persistent, widespread practice sufficient to establish a custom or policy. The three incidents the Plaintiffs particularly point to are as follows 1.) the statement made by a desk officer when Ms. Alvarez went into make a complaint in March 1993 that she should handle the matter civilly instead of through the police was not policy so as not to "give the Border Patrol a bloody nose" 2.) a detective, in June 1994, when obtaining a warrant, did not tell the magistrate about Mr. Alvarez's use of a weapon resulting in the issuance of a warrant for a misdemeantor rather than for a felony because a felony would cost Mr. Alvarez his job; and 3.) the incidents at the police station the evening before her murder.
Although the Plaintiffs argue that the shielding of Mr. Alvarez from legal consequences of his action extended to the policymaker level within the police department, they provide no evidence directly in support of this contention. Instead, they rely upon post-incident investigations of the behavior of Officers Lom and Wilburn and investigations following Mrs. Alvarez's murder. Subsequent investigations, and specifically the results of those investigations, can be used to establish policy. Grandstaff v. City of Borger, 767 F.2d 161, 171 (5th Cir. 1985). However, in this case, the subsequent investigations fall short of establishing a fact question about the existence of a policy.
An internal investigation was conducted following Mr. Alvarez's arrest at Juana Bellabs' house. This investigation was based on Officer Lom's and Wilburn's decision to drop Agent Alvarez off at his apartment instead of turning him over to a responsible adult and their failure to document the incident. The later decision that the disciplinary charges be dropped on this one incident does not establish a fact issue about the existence of a policy.
The Plaintiffs argue that the shortcomings of the polices' internal post-murder investigation established a municipal policy. This investigation, conducted by Captain Nava, a station commander, was arguably not as thorough as it could have been. However, the Plaintiffs do not establish any connection between this investigation and any City policy of discrimination against the victims of law enforcement domestic abuse or of domestic abuse in general. In connection to the investigation, the Plaintiffs also point to a statement made by a police spokesman to the effect that Mrs. Alvarez had only waited at the station for five minutes. However, the Plaintiff never establish any connection between this statement and any policy of violating the equal protection rights of victims.
Additionally, the Plaintiffs argue that the City's failure to train its police officers can be used to establish its liability. A municipality's failure to train police can subject it to Section 1983 liability only when the failure to train shows deliberate indifference to residents' constitutional rights. City of Canton v. Harris, 489 U.S. 378, 389 (1989). The Plaintiffs point to no evidence to create a fact question whether any lack of training was the result of deliberate indifference. Therefore, failure to train its police cannot make the City liable in this case for the acts of its employees.
Finally, the Plaintiffs have established the existence of a fact question whether the act of not filling out complaint reports for domestic violence calls, as required by state law, was widespread enough to be a custom or policy, even though the writing of such a report was required by the City's written policy. Police officers did not write a report each time Mrs. Alvarez went to the police. Similarly, another domestic violence victim indicated that officers did not prepare a complaint report every time that the police came to her house to answer calls about abuse or threats of violence. (Tracey Yanez aff. at ¶ 4). The Plaintiffs also include statistics indicating that in 1996 and 1997 reports were not filed every domestic violence call dispatched. (Plaintiffs' Ex. HH). This evidence raises a fact issue concerning whether the City had a. policy of not filing complaint reports on every call of domestic violence. If true, this probably was in violation of Texas law. Nevertheless, the policy of not filing complaint reports is not relevant to the Plaintiffs' claim that the City discriminated against victims of domestic abuse committed by law enforcement. More importantly, if the policy in question is only that of not filing complaint reports in domestic violence cases, the Plaintiffs have a causation problem. The Plaintiffs make no allegation that making a written report, in and of itself would have prevented Agent Alvarez from committing murder. Although the Plaintiff produces a statement by the police department that "[e]ffevtive, aggressive misdemeanor arrest and prosecution can prevent violence from escalating to felony level or homicide," they have produced no information that a report would necessarily lead to an arrest and prosecution. Nor do they produce any evidence suggesting that the writing of a report on March 6, 1997 or on earlier dates would have prevented Agent Alvarez from murdering his wife.
Nothing in the summary judgment evidence indicates that Ms. Yanez's husband was involved with law enforcement
Therefore, because there is no evidence of any policy other than not creating written reports, summary judgment will be granted in favor of the City on the Plaintiffs' equal protection claims.
Texas Tort Claims Act
The City argues that the state law tort claims against it are barred by the Texas Tort Claims Act ("TTCA"). The TTCA limits municipal liability solely to claims for property damage, personal injury or death caused by 1) the operation or use of motor vehicles and equipment; or 2) the condition or use of tangible personal property or real property. TEX. CIV. PRAC. REM. CODE § 101.021.
First the Plaintiffs argues that the TTCA should be interpreted extremely broadly in this domestic violence case. In support of this, the Plaintiff cites to the Texas Family Violence Prevention Act, which requires that officers responding to family violence calls create written crime reports. They also point of a Texas policy that policy should maximum protection to victims of domestic violence. Despite this, in the absence of any indication that Texas courts have interpreted or would interpret the Texas Tort Claims Acts in this manner, the Court cannot create such a broad exception to sovereign immunity.
Additionally, the Plaintiffs argue that their state law claims fall under the categories provided in the TTCA in three ways. They argue that using a patrol car to drive Mr. Alvarez home in March 1996 constituted a misuse of a motor vehicle. They further argue that Officer Durand's use of the police department's computer system and printer to print copies of all documents was a misuse of tangible personal property. Finally, they argue that by not arresting Alvarez, the police failed to use their handcuffs, guns, car and police station.
Them is evidence that Officer Durand printed Alejandro Alvarez's case file from the computer system in April 1996 even though he was not assigned to the case.
The Plaintiffs' arguments that their state law claims fall under the TTCA waiver of sovereign immunity must fail. The use of the patrol car to drive Mr. Alvarez home in March 1996 is not the proximate cause of Mrs. Alvarez's murder on March 17, 1997. Similarly, the Plaintiffs have pointed to no causal connection between Officer Durand's use of police department computers and the murder of Suzy Alvarez. Finally, non-use of police equipment does not constitute use under the TTCA. Kassen v. Hatley, 887 S.W.2d 4, 16 (Tex. 1994). To find that the Plaintiffs' negligence claims are caused by the use of property or motor-driven vehicles would be to stretch the language of the TTCA beyond the limits that Texas courts have provided or are likely to provide. Regardless of how strong their negligence claims might be, the Plaintiffs cannot overcome the City's immunity from tort claims.
Conclusion
Accordingly, it is ORDERED that Defendant, United States of America's Motion for Summary Judgment (Docket No. 64) is granted in part and denied in part such that the Plaintiffs' claims for negligent supervision and retention remain for trial, that Defendant City of El Paso's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (Docket No. 67) is GRANTED, that Defendant City of El Paso's Motion to Strike and Objections to Plaintiffs' Summary Judgment Proof (Docket No. 76) is DENIED, that Defendant City of El Paso's Motion to Strike and Objections to Plaintiffs' Designated Expert Witnesses (Docket No. 84) is DENIED AS MOOT and that Plaintiffs' Motion to Exclude Testimony of Defendant City of El Paso's Expert Robert Taylor, Ph.D. (Docket No. 86) is DENIED AS MOOT.