Opinion
SA-23-CV-847-FB (HJB)
07-03-2024
ALEXIS TOVAR, individually and as next friend of D.P., a minor, and PHILLIP REYES as next friend of A.R. and J.R., minors, Plaintiffs, v. THE CITY OF SAN ANTONIO, TEXAS; ALFRED FLORES; ELEAZAR ALEJANDRO; and NATHANIEL VILLALOBOS Defendants.
To the Honorable United States District Judge Fred Biery:
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Henry J. Bemporad United States Magistrate Judge
This Report and Recommendation concerns the 12(b)(6) Motion to Dismiss by Defendants Alfred Flores, Eleazar Alejandro, and Nathaniel Villalobos (“ the Officer Defendants”). (Docket Entry 12). Pretrial matters have been referred to the undersigned for consideration. (See Docket Entry 20.) For the reasons set forth below, I recommend that the Officer Defendants' motion be GRANTED, but that Plaintiffs be permitted an opportunity to amend their complaint.
I. Jurisdiction.
Plaintiffs claim that the Officer Defendants violated 42 U.S.C. § 1983 because they used excessive force, in violation of the Fourth Amendment, when they shot and killed Melissa Perez. (See Docket Entry 2, at 29.) The Court has original jurisdiction over § 1983 claims pursuant to 28 U.S.C. § 1331. The undersigned issues this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
Because Defendants seek dismissal at the pleadings stage, the Court assumes the veracity of all the well-pleaded facts in Plaintiffs' First Amended Complaint, and attachments thereto. See United States ex rel. Vavra v. Kellogg Brown & Root, Inc., 727 F.3d 343, 344 n.2 (5th Cir. 2013). As such, the factual background is taken directly from Plaintiffs' First Amended Complaint, and the arrest warrant affidavit for the Defendant Officers that is attached thereto. See Sewell v. Monroe City Sch. Bd., 974 F.3d 577, 581 (5th Cir. 2020).
In the late hours of June 22, 2023, Melissa Perez (“Perez”) was suffering from a schizophrenic episode. (Docket Entry 2, at 3.) She was at home when it happened, at the Rosemont at Miller's Pond Apartments, in San Antonio, Texas. (Id.) In the throes of that episode, Perez was cutting the wires to fire alarms at the apartment complex, believing the FBI was using them to spy on her. (Id.) The San Antonio Fire Department (“SAFD”) responded to a call about Perez, and made contact with her in the parking lot of the complex. (Id.) Perez identified herself and explained why she was destroying the fire alarms. (Id. at 3-4.) SAFD reported the incident to the San Antonio Police Department (“SAPD”). (Id. at 4.)
SAPD officers arrived at the apartment complex on June 23, 2023, at around 12:27 A.M., and made contact with Perez in the parking lot. (Docket Entry 2, at 4.) She again identified herself and explained the reasons for her actions. (Id.) At some point during the encounter, Perez began to move toward her apartment. (Id.) When one of the officers ordered her to stay put, she made a run for it. (Id.) She fled into her apartment and locked the door behind her. (Id.) After she refused the officers' orders to come out, the officers called for backup. (Id.)
At around 1:40 A.M., at least eight additional SAPD officers arrived at Perez's apartment. (Docket Entry 2, at 5.) One group of officers remained at the front door; the rest positioned themselves by the rear patio. (Id.) One of the officers removed a screen from an open window and began to reach into the apartment, at which point Perez threw a candle at him. (Id.) The candle struck the officer in the left forearm. (Docket Entry 2-1, at 1.)The officer unholstered his pistol and told Perez, “you're going to get shot,” to which she responded, “shoot me!” (Docket Entry 2, at 5.) The officers then backed away from the window and waited for about 20 minutes while additional officers arrived. (Id.; Docket Entry 2-1, at 1.)
This detail, and several others, are taken from the arrest warrant affidavit which Plaintiffs attached to their First Amended Complaint as Exhibit A. (See Docket Entry 2-1.) Plaintiffs refer to the affidavit in their original and amended complaints and specifically aver that they “agree with and re-allege the allegations made in this affidavit.” (Docket Entry 2, at 9; Docket Entry 32, at 9.)
Reinforcements arrived on the scene at about 2:02 A.M. (Docket Entry 2, at 5; Docket Entry 2-1, at 1.) Among them were the Officer Defendants: Sergeant Alfred Flores, Officer Eleazar Alejandro, and Officer Nathaniel Villalobos. (Docket Entry 2-1, at 1.) After being briefed on the situation, the Officer Defendants approached the back of Perez's apartment. (Id. at 2.) Officer Alejandro attempted to enter the apartment through the back door on the patio, but it was locked. (Docket Entry 2, at 5-6.) Sergeant Flores and Officer Villalobos stood nearby, next to the patio door and an adjacent window “blocked by a television.” (Docket Entry 2-1, at 2.) No one else appeared to be present in the apartment. (Docket Entry 2, at 7.)
Moments after Officer Alejandro attempted to open the patio door, he saw Perez “pick up a hammer . . . and charge toward the door while swinging the hammer and striking the window near” Sergeant Flores and Officer Villalobos, and breaking it. (Docket Entry 2, at 6; Docket Entry 2-1, at 2.) Officer Alejandro opened fire in response, shooting five rounds at Perez through the locked patio door, but missing her each time. (Docket Entry 2, at 6.) Perez briefly retreated into a hallway. (Id.) Then, with hammer in hand, she “rushed toward” Sergeant Flores and Officer Villalobos “a second time,” yelling “hey, hey,” at which point all three Officer Defendants opened fire. (Docket Entry 2, at 7; Docket Entry 2-1, at 2.) Perez was struck by “[b]ullets from all three weapons,” and she died on the scene. (Docket Entry 2, at 7.) The Officer Defendants were suspended without pay and charged with criminal offenses in state court: Officers Flores and Alejandro were charged with murder; Officer Villalobos was charged with aggravated assault with a deadly weapon. (Docket Entry 2, at 8; Docket Entry 2-1, at 2.) Indictments were returned on those charges on December 14, 2023, and they remain pending in the 187th Criminal District Court, Bexar County, Texas. See State Court Cause Nos. 2023-CR-11510A, 2023-CR-11510B, and 2023-CR-11510C.
The Court may take judicial notice of the public records setting out the Officer Defendants' pending state criminal charges pursuant to Federal Rule of Evidence 201.
Plaintiffs filed a civil complaint in this Court less than a month after the shooting on July 7, 2023. (See Docket Entry 1.) They amended their complaint on July 25, 2023. (See Docket Entry 2.) In their complaint, Plaintiffs seek money damages for violations of 42 U.S.C. § 1983. (See Docket Entry 2, at 29.) They claim that the Officer Defendants violated Perez's Fourth Amendment right to be free from unreasonable seizures because the deadly force they used when they shot and killed her was excessive under the circumstances. (See id. at 29-30.)
On February 13, 2024, the Court ordered Plaintiffs to file a motion seeking leave to file a second amended complaint no later than March 29, 2024 solely for the purpose of adding the Estate of Melissa Perez as a party. (See Docket Entry 29.) The Court also stayed the case pending the issuance of this Report and Recommendation. (See id. at 1.) Plaintiffs never filed a motion for leave, but they did file a Second Amended Complaint. (See Docket Entry 32.) As the Second Amended Complaint merely adds Perez's estate as a plaintiff, it does not moot the Officer Defendants' motion. See Amaya v. Crowson & Crowson, LLP, No. 3:13-CV-130-DCG, 2013 WL 12126243, at *2 (W.D. Tex. June 6, 2013) (“The filing of an Amended Complaint moots a pending 12(b)(6) motion, unless the objections raised by the motion remain unresolved by the Plaintiff's amendments.”).
The Officer Defendants moved to dismiss Plaintiffs' First Amended Complaint on November 9, 2023, asserting qualified immunity from suit. (See Docket Entry 12.) According to the Officer Defendants, they did not violate Plaintiff's constitutional rights because the deadly force they used was not excessive under the circumstances. (See id. at 8-10.) In any event, the Officer Defendants argue, even if they are mistaken about the constitutionality of their actions, they are nevertheless immune because the law at the time did not clearly establish that deadly force they used was excessive under the circumstances they faced. (See id. at 11-13.) Plaintiffs have responded to the motion (Docket Entry 16), and the Officer Defendants have filed a reply (Docket Entry 23).
III. Legal Standards.
Claims may be dismissed under Rule 12(b)(6) “on the basis of a dispositive issue of law,” Neitzke v. Williams, 490 U.S. 319, 326 (1989), or a plaintiff's failure to allege “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
In reviewing a Rule 12(b)(6) motion, the Court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. United States ex rel. Vavra, 727 F.3d at 344. However, the Court does not extend this presumption of veracity to “conclusory allegations, unwarranted factual inferences, or legal conclusions.” Arnold v. Williams, 979 F.3d 262, 266 (5th Cir. 2020) (citations omitted). In ruling on a 12(b)(6) motion to dismiss, the factual information available to the Court is limited to “the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011); see also Gomez v. Galman, 18 F.4th 769, 775 (5th Cir. 2021).
IV. Analysis.
Qualified immunity is a broad defense “protect[ing] all but the plainly incompetent and those who knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). “When a defendant invokes qualified immunity, the burden shifts to the plaintiff to demonstrate the inapplicability of the defense.” Lincoln v. Turner, 874 F.3d 833, 847 (5th Cir. 2017). To survive a motion to dismiss based on a defendant's assertion of qualified immunity, a plaintiff must “have alleged facts sufficient to plausibly show that (1) the defendant's conduct violated a constitutional right and (2) the constitutional right was clearly established at the time of the alleged misconduct.” Harmon v. City of Arlington, Tex., 16 F.4th 1159, 1163 (5th Cir. 2021) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). “If a plaintiff fails to establish either prong, the public official is immune from suit.” Bright v. City of Killeen, Tex., 532 F.Supp.3d 389, 397 (W.D. Tex. 2021) (citing Zarnow v. City of Wichita Falls, 500 F.3d 401, 407 (5th Cir. 2007)).
In considering qualified immunity, courts have discretion to address the prongs of the defense in any order. Pearson, 555 U.S. at 236. Sometimes, it is appropriate to start with the “clearly established” prong, so as to avoid “expending ‘scarce judicial resources' to resolve difficult and novel questions of constitutional or statutory interpretation that will ‘have no effect on the outcome of the case.'” al-Kidd, 563 U.S. at 735. However, it is often “the better approach . . . to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all.” Cope v. Cogdill, 3 F.4th 198, 204 (5th Cir. 2021). Indeed, when courts “avoid scrutinizing the alleged offense by skipping to the simpler second prong, . . . the inexorable result is ‘constitutional stagnation' fewer courts establishing the law at all, much less clearly doing so.” Zadeh v. Robinson, 928 F.3d 457, 479 (5th Cir. 2019) (Willett, J., concurring in part and dissenting in part).
In light of the tragic outcome of Plaintiff's encounter with the Officer Defendants in this case, and the need for clarification of the law in this area, this Report and Recommendation considers first whether a constitutional violation occurred before addressing whether the law was clearly established on the issue.
A. Constitutional Violation.
“The Fourth Amendment's right to be free from unreasonable seizures governs excessive-force claims.” Roque v. Harvel, 993 F.3d 325, 332 (5th Cir. 2021). To state an excessive-force claim, a plaintiff must plausibly allege (1) an 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. Darden v. City of Fort Worth, Tex., 880 F.3d 722, 727 (5th Cir. 2018) (citations omitted). “Excessiveness and unreasonableness are intertwined concepts that are considered together.” Ometu v. City of San Antonio, No. SA-21-CV-925-OLG (HJB), 2023 WL 9502070, at *7 (W.D. Tex. Nov. 15, 2023) (citing Darden, 880 F.3d at 728), report and recommendation adopted, No. SA-21-CV-00925-OLG, 2024 WL 390388 (W.D. Tex. Feb. 1, 2024).
Ordinarily, the Court considers three factors in determining whether an officer's use of force was reasonable: “(1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.” Degollado v. Solis, 617 F.Supp.3d 668, 676 (S.D. Tex. 2022) (citing Joseph ex rel. Est. of Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020)). However, “[t]he threat-of-harm factor typically predominates the analysis when deadly force has been deployed.” Harmon, 16 F.4th at 1164. Thus, “[a]n officer's use of deadly force is not excessive . . . when the officer reasonably believes that the suspect poses a threat of serious harm to the officer or to others.” Id. (quoting Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009)).
“The Court must confine its threat assessment to the moment prompting the officer's use of deadly force.” Degollado, 617 F.Supp.3d at 676 (citing Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011) (“The excessive force inquiry is confined to whether the [officer or another person] was in danger at the moment of the threat that resulted in the [officer's use of deadly force].”) (emphasis in original)). “[A]n officer's conduct leading to that point is not considered.” Crane v. City of Arlington, Tex., 50 F.4th 453, 466 (5th Cir. 2022). And “court[s] must ‘be cautious about second-guessing [a] police officer's assessment' of the threat level.” Harmon, 16 F.4th at 1163 (quoting Ryburn v. Huff, 565 U.S. 469, 477 (2012) (per curiam)).
The 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.” Harmon, 16 F.4th at 1163 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). After all, “officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation.” Harmon, 16 F.4th at 1163 (quoting Graham, 490 U.S. at 396-97).
Pursuant to the legal standards set out above, the question before the Court is whether Plaintiffs have plausibly alleged that the Officer Defendants' use of deadly force was excessive.The answer is “yes” if the Court can reasonably infer from the facts alleged that a reasonable officer in the Officer Defendants' shoes would not have believed that Perez posed an immediate threat of serious harm when she charged at them with a hammer for a second time separated by a wall, a glass door, and a window she had broken moments earlier when she charged at them the first time.
Because Plaintiffs allege that the Officer Defendants “worked in concert with each other” (see Docket Entry 2, at 30), the Court “need not separately address the qualified immunity analysis for each officer.” Amador v. Vasquez, 961 F.3d 721, 727 n.5 (5th Cir. 2020) (citation omitted); cf. Darden, 880 F.3d at 731 (“In cases where the defendants have not acted in unison, ‘qualified immunity claims should be addressed separately for each individual defendant.'”) (citations omitted).
“Use of deadly force is not unreasonable when an officer would have reason to believe that the suspect poses a threat of serious harm to the officer or others.” Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003) (citing Tennessee v. Garner, 471 U.S. 1 (1985)). On the one hand, deadly force is not excessive even in response to suspects without firearms, when those suspects charge toward officers or others with another dangerous weapon in close proximity. See e.g., Rockwell, 664 F.3d at 991-92 (“[I]t was reasonable for the officers to believe that Scott posed a significant and imminent threat of serious physical harm, . . . [and] respond to that threat with deadly force, ....after Scott charged out of his room with a deadly weapon in each hand in the direction of the officers.”). Indeed, in some cases a suspect need not even move toward officers or others before officers may resort to deadly force. Compare Mace, 333 F.3d at 624-25 (holding that deadly force was not excessive where officer shot an “intoxicated, violent[,] and uncooperative individual who was wielding a sword within eight to ten feet of several officers in a relatively confined space, . . . [after he] rais[ed] his sword toward the officers”); with Degollado, 617 F.Supp.3d at 678 (holding that shooting suspect was excessive because he “stood a ‘significant' distance [away] from the officers and other bystanders, ....[and] neither threatened to use his knife, nor . . . ma[d]e a[ny] threatening gesture[s]”). Thus, if the factual allegations were simply that Perez charged at the Officer Defendants with a hammer and that they shot her before she could close the distance and land an attack, there would be hardly any question about the constitutionality of the Defendants' use of deadly force. However, this case is complicated by the fact that Perez was separated from the Officer Defendants by “a wall, a [broken] window blocked by a television, and a locked door.” (Docket Entry 2-1, at 2.) The crucial question, then, is whether the presence of these barriers between Perez and Defendants were such that a reasonable officer on the scene would not have believed that she posed a serious threat of harm at the moment Defendants opened fire.
To begin with, it is unclear from the factual allegations what the full extent of the damage was to the window that Perez broke when she charged at the Officer Defendants the first time. (See Docket Entry 2, a 6 (“Perez broke her window with a hammer.”); Docket Entry 2-1, at 2 (“Victim pick[ed] up a hammer . . . and charge[d] toward the closed patio door while swinging the hammer and striking the window....”).) The window may have been merely cracked, completely shattered eliminating any barrier between Perez and the Officer Defendants where the glass used to be or something in between. However, viewing the factual allegations in the light most favorable to Plaintiffs, the undersigned infers that the window was cracked but not shattered, such that the glass separating Defendants from Perez was still intact when she charged them the second time.
The presence of the barriers between Perez and the Officer Defendants distinguishes this case from cases which are otherwise quite similar. In Mace, for instance, an officer's use of force was not excessive when he shot a suspect who was “intoxicated, agitated, breaking windows, shouting, and brandishing a[] . . . sword.” 333 F.3d at 624. Perez is not alleged to have been intoxicated, but she was certainly agitated, shouting, brandishing a hammer, and breaking a window. In Rockwell, officers did not use excessive force when they shot a suspect who “was armed” with two knives, “suffered from mental-health problems, had previously exhibited violent behavior,” and was “running toward them.” Perez similarly was armed, was in the throes of a schizophrenic episode, had previously acted violently breaking the window near the Officer Defendants and throwing a candle at another officer earlier and she was running toward Defendants when they fired their weapons at her. However, these similarities are not enough to show that the Officer Defendants acted reasonably.
In Mace, the Fifth Circuit emphasized that the shooting occurred within “the close quarters of a mobile home park, which limited the officers' ability to retreat.” 333 F.3d at 624 . Thus, the officer's decision to shoot was justified because his ability to retreat was limited and the suspect was “no more than ten feet away” and “raising his sword.” Id. Similarly, in Rockwell, the officers were “in a small hallway” when the suspect charged “out of his room and toward the[m].” 664 F.3d at 991. Here, by contrast, in addition to the barriers between Perez and the Officer Defendants, there is no allegation that the “quarters” for the encounter were not significantly “close” Defendants may have been able to retreat from the patio to maintain a safe distance between themselves and Perez. There is certainly no allegation that the Officer Defendants were somehow trapped on the patio with no way of escape but through Perez's apartment. Combined, these facts plausibly suggest that Defendants had time to safely extricate themselves from the situation through retreat.
The barriers also provided the Officer Defendants with extra time and cover to consider and pursue other, nonlethal means of incapacitating Perez. The Court “considers the speed with which an officer resorts to force where officers deliberately, and rapidly, eschew lesser responses when such means are plainly available and obviously recommended by the situation.” Crane, 50 F.4th at 464. The Officer Defendants were among the last group of officers to arrive on the scene. (See Docket Entry 2-1, at 1-2.) Plaintiffs allege that the Officer Defendants attempted to enter Perez's apartment from the back patio door, at which point she charged at them and broke the adjacent window with her hammer. (See Docket Entry 2, at 5-6; Docket Entry 2-1, at 2.) Immediately, Officer Alejandro opened fire “shooting five rounds in the direction of Perez through the locked door.” (Docket Entry 2, at 6; see Docket Entry 2-1, at 2.) Then, when Perez charged a second time repeating the act which broke the window but left Defendants unharmed they all fired their weapons and killed her. (See Docket Entry 2, at 6-7; Docket Entry 2-1, at 2.) There are no allegations that the Officer Defendants first attempted to use any nonlethal methods e.g., tasers or pepper spray before resorting to shooting Perez. See, e.g., Rockwell, 664 F.3d at 991 (noting that officer first “discharged his pepperball gun” at the suspect “in an attempt to prevent him from cutting or stabbing any of the officers”). Of course, if the door was locked and the window unshattered, then tasers and the like would not have been a realistic option to immediately incapacitate Perez. But the factual allegations also do not reveal any pressing need to incapacitate Perez immediately; she was alone in her apartment and separated from the Officer Defendants and other officers by physical barriers.
The Court is sensitive to the fact that the circumstances in which the Officer Defendants had to act were “tense, uncertain, and rapidly evolving.” Graham, 490 U.S. at 396-97. However, there were physical barriers between Defendants and Perez, and Defendants had easy access to a path of retreat. The barriers would have provided additional time for the Officer Defendants to extricate themselves from the situation if necessary, or to proceed patiently and attempt to first use nonlethal means of incapacitating Perez. Thus, based on the facts alleged, a reasonable officer in the Officer Defendants' shoes would not have believed that Perez posed an immediate threat of serious physical harm when they shot her. The decision to “eschew lesser responses” and immediately incapacitate Perez by shooting her through the protective barriers was, therefore, an excessive use of force. Crane, 50 F.4th at 464.
B. Clearly Established Law.
As Plaintiffs have carried their burden as to the first prong of the qualified immunity analysis, Officer Defendants are entitled to qualified immunity only if the law at the time of the shooting did not clearly establish that the Officer Defendants' use of deadly force under the circumstances was excessive. A defendant's conduct violates clearly established law only when, at the time of the challenged conduct, “‘[t]he contours of [a] right [are] sufficiently clear' that every ‘reasonable official would [have understood] that what he is doing violates that right.'” al-Kidd, 563 U.S. at 741 (alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The law is clearly established when there is “controlling authority or a robust consensus of persuasive authority that defines the contours of the right in question with a high degree of particularity.” Clarkston v. White, 943 F.3d 988, 993 (5th Cir. 2019). Thus, to satisfy their burden at this prong, Plaintiffs “must identify a case in which an officer acting under similar circumstances was held to have violated the Constitution, and explain why the case clearly proscribed the conduct of that individual officer.” Cope, 3 F.4th at 205.
Whether the law was clearly established “depends substantially upon the level of generality at which the relevant ‘legal rule' is to be identified.” Anderson, 483 U.S. at 739. What matters is “whether the violative nature of particular conduct is clearly established.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (emphasis in original) (quoting al-Kidd, 563 U.S. at 742). And “[s]pecificity is especially important in the Fourth Amendment context, where . . . it is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation the officer confronts.” Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018) (quoting Mullenix, 577 U.S. at 12). Thus, in excessive force cases, “police officers are entitled to qualified immunity unless existing precedent ‘squarely governs' the specific facts at issue.” Kisela, 584 U.S. at 104 (quoting Mullenix, 577 U.S. at 12).
In their First Amended Complaint, Plaintiffs generally contend that, prior to the shooting at issue here, it was clearly established law that the use of deadly force is excessive “when the officers do not have probable cause to believe that the suspect posed a threat of serious physical harm, either to the officer or to others.” (Docket Entry 2, at 29 (emphasis added).) Plaintiffs cite no caselaw to support this assertion, but it is essentially a restatement of the holding in Garner. See 471 U.S. at 11 (“Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”). Crucially, however, the Supreme Court and Fifth Circuit have rejected these sorts of generalized propositions as insufficiently precise to clearly establish the law in excessive-force cases. See, e.g., Kisela, 584 U.S. at 105 (rejecting use of broad formulation of Garner's holding); White v. Pauly, 580 U.S. 73, 80 (2017) (same); Mullenix, 577 U.S. at 13 (same); Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam) (same); Harmon, 16 F.4th at 1167 (same); Morrow v. Meachum, 917 F.3d 870, 878 (5th Cir. 2019) (same).
In their motion, the Officer Defendants contend that they are entitled to qualified immunity unless the law at the time of Perez's death clearly established “that an officer could not use deadly force against a suspect that [sic] was charging at officers or others while brandishing a hammer.” (Docket Entry 12, at 14.) The Officer Defendants liken the circumstances of this case to those in City of Tahlequah, Okla. v. Bond, 595 U.S. 9 (2021), to show that no such rule was clearly established when they shot Perez. In Bond, the defendant officers shot a cornered suspect who was “fidgeting” and “nervous” and had refused to be pat down for weapons after the suspect “grabbed a hammer, . . . turned around to face the officers, . . . grasped the handle of the hammer with both hands, as if preparing to swing, . . . pulled it up to shoulder level . . . [and stepped] out from behind a piece of furniture so that he had an unobstructed path to [an] Officer, . . . [and] then raised the hammer higher back behind his head and took a stance as if he was about to throw the hammer or charge at the officers.” Id. at 11. The Supreme Court held that those officers were qualifiedly immune because, regardless of the constitutionality of their conduct, they “plainly did not violate any clearly established law.” Id. at 13. The Officer Defendants argue a fortiori that, because the officers in Bond were entitled to qualified immunity even though the hammer-armed suspect never charged at them, their own entitlement to qualified immunity is even stronger because Perez actually did charge at them with a hammer twice. (Docket Entry 12, at 13.)
In their response, Plaintiffs argue that Bond is inapposite because, unlike the suspect there, “Perez did not have an unobstructed path to the [o]fficers” because “she was in her house,” separated from the Officer Defendants by a television, a window, some drywall, and a locked door, making it “impossible for her to throw or swing the hammer in a way that threatened the [o]fficers.” (Docket Entry 16, at 17.) Plaintiffs therefore propose a different rule which must have been clearly established by the time the Officer Defendants shot Perez: that it is an excessive use of force to “shoot[] a mentally ill woman in her own home behind a locked door who was saying ‘hey hey.'” (See Docket Entry 16, at 17.) While Plaintiffs' objection to the Officer Defendants' description of the relevant right to be clearly established is well-taken, their alternative proposal is likewise deficient for its failure to include the fact that Perez charged with a hammer in her hand after having already done so once and breaking a window separating her from the Officer Defendants. Plaintiffs cite ten cases which they purport clearly established the law in their favor. (See id. at 11-14, 16-17.) Crucially, however, in none of the cited cases were the suspects alleged to have rushed at the officers with a weapon before being shot. Those cases are therefore inapposite.
Garner, 471 U.S. at 11; Crane, 50 F.4th 454; Roque, 993 F.3d 325; Amador, 961 F.3d 721; Cole v. Carson, 935 F.3d 444 (5th Cir. 2019) (en banc); Mason v. Lafayette City-Parish Consol. Gov., 806 F.3d 268 (5th Cir. 2015); Reyes v. Bridgwater, 362 Fed.Appx. 403 (5th Cir. 2010); Lytle v. Bexar Cnty., Tex., 560 F.3d 404 (5th Cir. 2009); Bacque v. Leger, 207 Fed.Appx. 374 (5th Cir. 2006); and Baker v. Putnal, 75 F.3d 190 (5th Cir. 1996).
In short, neither party has identified any controlling authority, or any robust consensus of persuasive authorities, involving a mentally unstable suspect armed with a weapon like a hammer, repeatedly rushing at the officers while separated by barriers that more-or-less readily can be broken or removed. And after conducting its own research, the undersigned is aware of no cases with the requisite factual similarities to clearly establish that the Officer Defendants' actions were constitutionally excessive. Normally, this would resolve the matter in the Officer Defendants' favor: under the qualified immunity doctrine, it is Plaintiffs' burden to identify caselaw clearly establishing the relevant right, not the Officer Defendants' burden to identify caselaw disproving the existence of such a right. See McClelland v. Katy Indep. Sch. Dist., 63 F.4th 996, 1005 (5th Cir. 2023) (“Once the defense of qualified immunity has been raised, the plaintiff has the burden of demonstrating . . . the right was ‘clearly established' at the time.”); Lincoln, 874 F.3d at 849 (“At this [pleading] stage, . . . [the plaintiff] has the burden to demonstrate that the law was clearly established in this area on the date of the incident.”).
In this case, however, Plaintiffs in their response to the motion to dismiss seek to retract two allegations they previously incorporated by reference to the arrest warrant affidavit: (1) that Perez initially charged at Defendants with a hammer, breaking one of the windows between them; and (2) that she then charged toward them a second time with the hammer before being shot. (See Docket Entry 16, at 5-7.) Removal of these allegations could substantially affect the “clearly established” prong of the qualified immunity analysis. Thus, while qualified immunity appears to bar suit against the Officer Defendants in the current pleading, Plaintiffs should be afforded an opportunity to amend their pleading before the Officer Defendants are dismissed from suit.
The undersigned noted above that the Officer Defendants have been indicted in state court on charges of murder and aggravated assault. The parties do not address how these serious state charges might impact upon the application of qualified immunity in federal court; accordingly, the Court need not address the matter at this time.
V. Conclusion and Recommendation.
For the foregoing reasons, I recommend that the Officer Defendants' Motion to Dismiss (Docket Entry 12) be GRANTED. However, Plaintiffs should be afforded an opportunity to amend their complaint to allege plausible facts necessary to overcome qualified immunity.
VI. Notice of Right to Object
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the Clerk of Court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this Report and Recommendation must be filed within 14 days after being served with a copy of the same, unless this time period is modified by the District Court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The parties shall file any objections with the Clerk of the Court and serve the objections on all other parties. An objecting party must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the party from a de novo review by the District Court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to, proposed findings and conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).