US 5th Circuit held officer entitled to qualified immunity due to suspects resisting placement in vehicle

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Craig, et al. v. Martin, 19-10013, (5th Cir. Feb. 15, 2022)

Special guest author: Joshua Galicia, Law Offices of Ryan Henry, PLLC

This Fifth Circuit appeal stems from a series of §1983 claims, all of which were dismissed under the appellant’s motion for summary judgment except the officer’s assertion of qualified immunity for the excessive force claims. The Fifth Circuit reversed the trial court’s denial, determined the officer was entitled to qualified immunity and dismissed the claims.

Officer William Martin (“Martin”) received a call about a “disturbance” involving A.C., Jacqueline Craig’s (“Craig”) minor child. Martin responded alone. On scene, Martin activated his bodycam and began a conversation with Craig, which escalated in hostility until Craig was yelling at Martin. Craig’s adult child Brea Hymond (“Hymond”) was recording the event on her cell phone.  Craig’s minor children are J.H. and K.H. J.H. stepped in between Craig and Martin, to which Martin grabbed J.H. and pulled her out from between them. K.H. then shoved Martin from behind. Martin proceeded to tase Craig to the ground and then handcuffed her. Martin then restrained J.H. and proceeded to walk Craig and J.H. to his vehicle. K.H. stood in front of the passenger door, in an apparent attempt to prevent Craig and J.H. from being placed within. Martin ordered K.H. to move and, upon refusing to do so, struck K.H., after which she moved out of the way. J.H. then further resisted being placed in the vehicle by keeping her leg out until Martin kicked her leg once, after which she placed her leg inside the vehicle.  Finally, Martin placed Hymond under arrest, who had been verbally harassing Martin throughout the previous events. Hymond refused to identify herself, so Martin raised her handcuffed arms behind her back to gain compliance.  Craig, individually and on behalf of her minor children, K.H. and J.H., and Hymond sued Martin for unlawful arrest and excessive use of force. The trial court dismissed most of the claims, but denied Martin’s qualified immunity defense. Martin appealed.

The Fifth Circuit divided its analysis into two parts: whether the officer’s actions were excessive and, if they were, whether the actions “violated clearly established statutory or constitutional rights of which a reasonable [officer] would have known.” For the first part, the Fifth Circuit found that the officer’s actions were reasonable given the nature of the actions taken against Martin by each party, particularly that he was by himself for the majority of these interactions while each individual was performing said actions and that there was video evidence, which contradicted some of the appellees’ allegations in their pleadings. For the second part, even if the officer’s actions had been found to be excessive, the precedent cited by appellees was noted as failing to find caselaw which showed individuals who were actively resisting officers as was present in this case to the point that Martin should have known he was violating clearly established rights. The court reversed the trial court order, held Martin was entitled to qualified immunity, and dismissed the remaining claims.

If you would like to read this opinion click here. The panel consists of Chief Circuit Judge Owen and Circuit Judges Barksdale and Duncan. Opinion by Chief Circuit Judge Owen.

Fifth Circuit holds that there is no per se rule permitting pressure placed on a resisting suspect’s back and that reasonableness of use of force can change in a single interaction

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Vicki Timpa, et al. v. Dustin Dillard, et al., 20-10876, 2021 WL 5915553 (5th Cir. Dec. 15, 2021)

Special guest author Joshua Galicia

This is a §1983 excessive force and bystander liability case appealed from the District Court of the Northern District of Texas wherein the district court granted appellees’ motion for summary judgment, dismissing both claims on the grounds that the appellees had qualified immunity. The Fifth Circuit court partly reverse-in-part and affirmed-in-part

In Dallas, Texas, Anthony Timpa called 911 requesting assistance due to a possible mental health episode and stating he had ingested cocaine. A dispatcher requested DPD officers respond to the call and that the individual may be experiencing mental health issues. For mental health calls, DPD general instructs that “as soon as [a person is] brought under control, they are placed in an upright position (if possible) or on their side.” Additional instructions were provided for individuals suffering from a state of agitation normally brought about by drug use, including cocaine. In this case, Officers Dillard, Dominguez, Vasquez, and supervising officers Rivera and Mansell arrived after Timpa had been cuffed by private security guards. Timpa began to roll towards a roadway, so Officer Dillard placed his knee on Anthony’s back, keeping it there for approximately fourteen minutes. Around nine minutes in, Timpa ceased kicking, but continued moving his head back and forth then, for the final three-and-a-half minutes, Anthony became limp and unresponsive. After Dillard removed his knee and paramedics placed Timpa on a gurney, they determined that Timpa was dead. The Dallas County medical examiner conducted an autopsy and determined that Timpa had been suffering from “excited delirium syndrome” and had died from sudden cardiac arrest brought upon by the presence of cocaine in his system as well as stress associated with physical restraint. At trial, Plaintiffs’ medical expert testified that Timpa would have lived had he been restrained without force being applied to his back. Timpa’s family brought suit against Officer Dillard for excessive force and unlawful deadly force and the other four officers for bystander liability. On summary judgment, the district court granted the defendants qualified immunity for both the excessive force and bystander liability claims. The plaintiffs appealed.

The Fifth Circuit court found that Dillard’s arguments for entitlement to qualified immunity mischaracterized precedential case law regarding excessive force. Specifically, Dillard articulated a per se rule by the Fifth Circuit that ‘[the use of a] prone restraint [on] a resisting suspect does not violate the Fourth Amendment even when pressure is applied to the suspect’s back.’ In fact, the United States Supreme Court has specifically rejected any such rule. Further, the Fifth Circuit indicated that excessive/deadly force claims are not analyzed via a generalized view of the incident, but rather via a fact-intensive review of key points throughout, as changing circumstances could require an adjustment of what is considered reasonable force. Additionally, the Fifth Circuit court kept in mind that Dillard had received training specifically on interacting with suspects suffering a mental health episode and those under the influence of certain drugs, like cocaine. In this case, the court considered that Timpa himself called 911 seeking help, that he was already cuffed when Dillard arrived, that Dillard was aware that Timpa was obese (which naturally makes breathing harder when in the prone position), that Dillard was aware Timpa had stated he’d ingested cocaine (which exacerbates any breathing difficulties), that Timpa’s head movements (which Dillard argued was continued resistance) were actually signs that Timpa was attempting to breathe, and that Timpa had gone limp several minutes before Dillard removed his knee from Timpa’s back. Ultimately, the court found that there were genuine material fact issues as to excessive force as well as the use of deadly force.

As to bystander liability, the Fifth Circuit Court found that genuine issues of material fact existed for three of the four officers. Specifically, the court found that there were questions of fact whether the three officers knew Dillard was violating Timpa’s constitutional rights, whether they had reasonable opportunity to prevent Dillard from continuing to place his knee on Timpa’s back, and whether they chose not to act accordingly. The fourth officer left before Timpa stopped moving and did not return to the scene until after Dillard had removed his knee.

The Fifth Circuit reversed the trial court’s order as to Dillard and three of the other officers and affirmed the granting of summary judgment as to the fourth officer.

If you would like to read this opinion click here. Panel consists of Circuit Judges Clement, Southwick, and Wilett. Opinion by Circuit Judge Edith Brown Clement.

Texas Supreme Court holds officer entitled to official immunity for turning on his lights.

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City of San Antonio v Riojas, 20-0293 (Tex. Feb. 18, 2022)

The Texas Supreme Court held an officer who turned his lights on to warn motorists of a traffic slowdown was entitled to official immunity.

Officer Tristan noticed a traffic slowdown and turned on his lights to warn motorists behind him.  Tristan observed a white sedan cross multiple lanes of traffic and exit the expressway. Officer Tristan then pulled onto the shoulder and radioed another officer to stop the sedan for making an improper lane change. While these events were occurring, Armando Riojas was riding his motorcycle behind Officer Tristan’s vehicle but three lanes over and directly behind a car driven by Vela. When the car in front of her slowed, Vela braked in response. Riojas swerved to avoid a collision but lost control of his motorcycle. Witnesses accused Tristan of causing the crash, including accusing him of scaring everyone on the stretch of road by turning on his lights. Riojas sued the City, alleging that Officer Tristan was negligent in turning on his emergency lights.  The City filed a plea to the jurisdiction which was denied and which the court of appeals affirmed. They determined Tristan was not entitled to official immunity. The City appealed.

Riojas concedes that by turning on his lights, Officer Tristan was performing a discretionary function within the scope of his employment. Riojas contends, however, that the City has not proven conclusively that Officer Tristan was acting in good faith. The need–risk assessment required for official immunity should not place an onerous burden on law enforcement.  Further, the need–risk balancing requirement does not go beyond the pursuit and emergency-response contexts.  The purpose for official immunity is most salient in the context of street-level police work, which frequently requires quick and decisive action in the face of volatile and changing circumstances. As a result, to be entitled to official immunity, Tristan had to only establish a reasonably prudent officer, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed at the time. Riojas had to then show that no reasonable officer in Tristan’s position could have believed that the circumstances justified his conduct. Here, there was no suspect, no arrest, and no inherent danger to the public.  As this was not a pursuit case, the needs-risk analysis is not required or proper. Officer Tristian established his actions were reasonable and Riojas did not establish that no reasonable officer could have made the same call. As a result, Officer Tristan was entitled to official immunity as a matter of law, which in turn, removes the waiver of immunity from the City.

If you would like to read this opinion click here. Opinion by Chief Justice Hecht.

14th Court of Appeals holds officer was not entitled to official immunity – proper focus is on the actions which caused the plaintiff’s injury, not on the overall investigation the officer was performing

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Nicholas Hulick v. City of Houston, 14-20-00424-CV  (Tex. App. Houston [14th Dist.], Feb. 1, 2022)

This is a Texas Tort Claims Act (“TTCA”)/ vehicle accident case where the Fourteenth District reversed the granting of the City’s plea to the jurisdiction based on the official immunity of its officer.

Officer Andrew De La Guardia responded to a service call involving a homeless suspect causing a disturbance on the street outside of a business. It was raining heavily while he was en route to the location. When he arrived, he drove around the area looking for the suspect, but was unable to find anyone matching the description.  When the rain became more severe he decided to turn around and head back to the station. Slowing to ten to fifteen miles per hour, he looked through the rain for oncoming traffic. Seeing none, the officer attempted to cross the westbound lanes of traffic but struck a motorcycle driven by Hulick.  Hulick sued.  The city filed a plea to the jurisdiction, arguing De La Guardia had official immunity at the time. Hulick appealed.

A governmental employee is entitled to official immunity: (1) for the performance of discretionary duties; (2) within the scope of the employee’s authority; (3) provided the employee acts in good faith.  If the employee is immune, the employee would not be liable under Texas law to the Plaintiff, therefore the City retains its immunity from suit.  The court analyzed whether the officer was performing a discretionary function at the time. An action is discretionary if it involves personal deliberation, decision, and judgment; on the other hand, an action that requires obedience to orders or the performance of a duty as to which the employee has no choice is ministerial. The court noted the City correctly observed that a law enforcement officer’s operation of a vehicle is a discretionary function in certain circumstances, including high-speed chase and responding to an emergency.  However, absent such special circumstances, an officer’s operation of a motor vehicle on official, non-emergency business is ministerial.  De La Guardia discontinued his search for the suspect at that time and was attempting to return to the station. While the City asserts he was performing an investigation (which is discretionary) the court held the focus should be on the actions which caused the injury (i.e. failing to yield the right-of-way to oncoming traffic).  The record did not support a finding of official immunity in this circumstance and the order granting the plea was reversed.

If you would like to read this opinion click here.  Panel consists of Justice Jewell, Justice Bourliot and Justice Poissant. Memorandum opinion by Justice Jewell.

Pro se appellant could not prevail on summary judgment appeal when he failed to appeal each ground for summary judgment.

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   Special contributing author Laura Mueller, City Attorney for Dripping Springs

Elezar Balli v. Officer Florentino Martinez, et al., No. 14-20-00030-CV (Tex. App.—Houston [14th Dist.] August 10, 2021) (mem. op.).

In this appeal from a trial court’s summary judgment in favor of the defendant officers, the 14th Court of Appeals affirmed the trial court’s judgment because the pro se plaintiff failed to challenge all grounds for the summary judgment and the court was required to affirm the summary judgment on the unchallenged grounds.

The plaintiff sued the officers of the Clute Police Department for tort and 1983 claims pro se after he was arrested for domestic violence and transported to jail.  While being transported the plaintiff struggled against the officers, knocked the officers down, bit the police chief, threatened the officers, hit his head on the inside of the back seat of the police car, and damaged the police car.  During the arrest, the officers tased the plaintiff.  The officers tried to use a pillow to protect the plaintiff’s head in the backseat of the car.  The defendant officers argued that: (1) the amount of force was objectively reasonable as a matter of law; (2) they were entitled to qualified immunity; and (3) the plaintiff’s conviction for assault for biting the police chief barred his claim for damages.  The trial court granted the defendant officers’ summary judgment without specifying the grounds and the plaintiff appealed the summary judgment.  The trial court also dismissed the state law claims since under Section 101.106(f) of the Texas Civil Practices and Remedies Code, the plaintiff was required to bring suit against the City rather than the officers.  The City and Police Chief were dismissed from the case because they were not properly served and the trial court had no jurisdiction over them as defendants.  The plaintiff did not appeal these holdings.

Under Texas Rule of Civil Procedure Rule 166a(c), for a summary judgment to be overturned, an appellant has to prove that any and all grounds for summary judgment were not meritorious.  If the appellant does not challenge every ground for which summary judgment was granted, then a court of appeals has to uphold the summary judgment.  The appellant in this case only appealed the issue that his conviction for assault barred his claim and failed to challenge the other two grounds.

The court of appeals affirmed the trial court’s summary judgment in favor of the defendant officers because the pro se plaintiff failed to appeal on all of the summary judgment grounds.

If you would like to read this opinion click here.   Panel consists of Justices Zimmerer, Bourliot, and Spain.  Opinion by Justice Jerry Zimmerer.

Eastland Court of Appeals holds deputies entitled to qualified immunity after takedown broke suspects jaw as video did not show constitutional level violations

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Peter Klassen v. Gaines County, Texas, and Gaines County Deputy Sheriffs Ken Ketron and Clint Low, 11-19-00266-CV (Tex.App.—Eastland July 15, 2021)

This is an excessive force/§1983 case where the Eastland Court of Appeals affirmed the trial court’s granting of the County’s and deputy’s dispositive motions.

Deputies responded to a disturbance involving possible aggressive actions by Klassen. Klassen was ordered to the ground and, while one of the deputies was attempting to put Klassen into the prone position, Klassen moved his hands and the deputy used his body weight to move Klassen into position. This caused Klassen to strike his chin on the ground, knocking out several teeth and breaking his jaw. Klassen sued.  The deputies filed a motion to dismiss t under the Tort Claims ACT (“TTCA”), which the trial court granted. They then filed a motion for summary judgment for the remaining federal and state claims. The trial court granted the motion as to the state claims, leaving the federal claims pending. Klassen then filed an amended petition which was almost exactly the same as the previous petition except that he, relevantly, attached as an exhibit an expert’s opinion that the force used was excessive. In response, appellees filed another motion to dismiss and a motion for summary judgment in the alternative, which the trial court granted. Klassen appealed the granting of the motion.

The Court of Appeals specifically noted that the trial court stated in its order that it examined the entire record when it dismissed Klassen’s claims, as such an analysis indicates that the trial court dismissed the claims under its motion for summary judgment as opposed to a motion to dismiss under the pleadings. When doing so, the standard for determining whether a trial court made an appropriate holding when it considered certain summary judgment evidence is a review for an abuse of discretion. In this case, the Court found no such abuse.

The Court found dismissal of the deputies was proper under the TTCA. Second, the Court found there was no excessive force after reviewing the video.   Third, the Court found that qualified immunity shielded the deputies as Klassen was unable to establish specific actions constituted a violation of clearly established law. The Court found Klassen had suffered no “constitutional injury” via the excessive force claim, so the county could not be held liable for any failure to train its deputies.

If you would like to read the memorandum opinion click here. Panel consists of Chief Justice Bailey and Justices Trotter and Williams. Opinion by Justice Williams.

U.S. Supreme Court holds officers “seized” suspect by shooting her even if the suspect was still able to flee and escape.

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Torres v Madrid, et al., No. 19–292. (U.S. March 25, 2021)

This is an excessive force/§1983 case where the U.S. Supreme Court held the proper inquiry into a “seizure” by excessive force (i.e. gunshots) is whether the challenged conduct objectively manifests an intent to restrain as opposed to force applied by accident or for some other purpose.

Four New Mexico State Police officers arrived at an apartment complex in Albuquerque to execute an arrest warrant for a woman accused of white-collar crimes. They approached Torres in her vehicle, but she did not notice them until one attempted to open the door. Torres testified she only saw individuals had guns and believed they were carjackers. She drove off at an accelerated rate, but the officers shot at her thirteen times. She was temporarily paralyzed. She plead no contest to aggravated fleeing and other related charges. She later sued two of the officers for excessive force under §1983. The District Court granted summary judgment to the officers, and the Court of Appeals for the Tenth Circuit affirmed.  They relied on Circuit precedent providing that “no seizure can occur unless there is physical touch or a show of authority,” and that “such physical touch (or force) must terminate the suspect’s movement” or otherwise give rise to physical control over the suspect. Torres appealed.

The Court performed a detailed analysis of the term “seizure.”  The Court held a seizure requires the use of force with intent to restrain. Accidental force will not qualify.  It stated “… the appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain, for we rarely probe the subjective motivations of police officers in the Fourth Amendment context.” The seizure does not depend on the subjective perceptions of the seized person.  The Court held the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.  The Court emphasized this rule is narrow. There is a distinction between seizures by control and seizures by force. A seizure by acquisition of control involves either voluntary submission to a show of authority or the termination of freedom of movement. Seizure by force is the application of force with intent to restrain (viewed from an objective standard). However, not all seizures are unreasonable, so the Court remanded the case back for a reasonableness determination.

If you would like to read this opinion click here. Chief Justice ROBERTS delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined. BARRETT, J., took no part in the consideration or decision of the case.

Beaumont Court of Appeals holds City is not liable for alleged failure to create a police report, failure to investigate, or failure to prosecute as asserted by Plaintiff

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Caryn Suzann Cain v. City of Conroe, Tex., et al., 09-19-00246-CV, 2020 WL 6929401 (Tex. App.—Beaumont Nov. 25, 2020)

 This is an interlocutory appeal from the trial court’s order granting the City’s motion to dismiss, plea to the jurisdiction, and traditional motion for summary judgment.

Plaintiff, Caryn Suzann Cain, filed a pro se civil suit against the Conroe Police Department alleging police negligence in the department’s investigation and disposal of her complaints regarding disputes with her neighbors. Cain asserted the City failed to render police assistance and file an incident report after she was allegedly assaulted by her neighbor’s dog, and that the Department showed bias towards her neighbor, a state correctional officer, who allegedly continued to harass her over a period of eighteen months.  Cain later § 1983 claims against the City.  In response, the City defendants filed a motion to dismiss under §101.106(e) of the Civil Practice and Remedies Code, a plea to the jurisdiction, and traditional motion for summary judgment.  The trial court granted all motions.

The officers were entitled to dismissal of the tort claims under §101.106(e).  Next, under the TTCA if an injury does not arise from a city employee’s operation or use of a motor-driven vehicle, then the city is not liable for its employee’s negligence. “Arises from” requires a plaintiff to show a direct connection between the injury and the employee’s vehicle operation or use.  Simply using a patrol vehicle’s radio is not actionable. Similarly, the court noted mere involvement of tangible personal property in an injury does not, by itself, waive immunity.  The tangible personal property must do more than create the condition that makes the injury possible. Here, no tangible personal property was negligently used to result in any of the alleged injuries. Next, to allege a valid constitutional rights violation under § 1983 against the City, Cain was required to assert a deprivation was caused by a policy, custom, or practice of the City. A municipality is not liable under § 1983 for the unconstitutional acts of its non-policymaking employees.  The Court determined Cain did not allege sufficient facts showing an unconstitutional policy or custom was being implemented. Finally, the Due Process Clause does not require the State to protect life, liberty, and property of its citizens against invasion by private actors, and it generally confers no affirmative right to government aid.  Thus, Cain’s allegation that the City failed to protect her against her neighbor did not constitute a due process violation.

If you would like to read this opinion click here.  Panel consisted of Chief Justice Steve McKeithen and Justices Hollis Horton and Leanne Johnson.  Opinion by Chief Justice McKeithen.  Docket page with attorney information can be found here.

 

Beaumont Court of Appeals held Plaintiff failed to overcome emergency responder exception under Texas Tort Claim Act in vehicle accident case

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Texas Dept. of Pub. Safety v. Kendziora, 09-19-00432-CV (Tex.App.—Beaumont, Nov. 5, 2020)

This is an interlocutory appeal from the denial of Texas DPS’s plea to the jurisdiction in a case involving a car accident while a DPS trooper (“Chapman”) was responding to an emergency. The Beaumont Court of Appeals reversed the denial.

Chapman was responding to a call reporting one hundred people fighting at a sports complex. En route, he approached a red light with his lights and siren activated, activated his airhorn, and slowed to a near stop while clearing the intersection. He looked both ways while crossing the intersection and cleared multiple lanes before being struck by Kendziora. Kendziora filed suit under the Texas Tort Claims Act (“TTCA”) for personal injuries sustained from that collision. DPS put forth the emergency exception defense under TTCA, which preserves immunity if the employee was in compliance with applicable law or was not acting recklessly. Chapman testified that he considered the nature of the emergency in deciding to respond immediately and urgently, while still ensuring vehicles at the intersection were stopped before proceeding. Kendziora testified that she did not hear any sirens or see any police lights prior to the collision.

The Court of Appeals held that Kendziora failed to raise a fact issue as to whether Chapman acted recklessly when he entered the intersection. She did not present any evidence showing Chapman failed to slow as necessary before entering the intersection or that he acted recklessly. Kendziora argued that the dashcam video is evidence of the reckless actions, but the video was not tendered or admitted into evidence in the lower court and was not part of the appellate record.

If you would like to read this memorandum opinion click here. Panel consists of Chief Justice McKeithen, Justice Kreger, and Justice Johnson. Opinion by Chief Justice McKeithen.

U.S. 5th Circuit holds qualified immunity applies in university disciplinary hearings where the outcome depends on the credibility of a witness

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U.S. 5th Circuit holds qualified immunity applies in university disciplinary hearings where the outcome depends on the credibility of a witness

Ralph Clay Walsh, Jr. v. Lisa Hodge, et al., 19-10785, 2020 WL 5525397 (5th Cir. Sept. 15, 2020)

This is an appeal from Walsh’s §1983 claim alleging a violation of procedural due process in a disciplinary hearing.

Walsh, a former university professor, was accused of sexual harassment by a student at a conference. The university hired an attorney who investigated the claim and concluded that the student’s claim was substantiated. The dean of the university recommended termination. Walsh appealed and was sent a letter containing the procedure for the appeal. During the appeal, the attorney who investigated the claim was questioned but not the student. Walsh was terminated, then filed a §1983 claim against the university and various professors and school administrators asserting he was not allowed to confront his accuser. The individual defendants moved for summary judgment on grounds of qualified immunity which was partially granted and partially denied. Defendants appeal the denial.

The 5th Circuit rested their analysis on a two-pronged test: 1) whether Walsh suffered a procedural due process violation as a matter of law, then 2) whether Defendants’ conduct was objectively unreasonable in light of clearly established law at the time of the incident. The 5th Circuit found the first prong to be satisfied as, even when balancing private and public interests, Walsh had a right to have his accuser present to answer questions and raise the issue of credibility. Regardless, the 5th Circuit did not find that there was clearly established law for procedures necessary to protect a professor’s interest in avoiding career destruction after being accused of sexual harassment.   The 5th Circuit goes on to acknowledge that its sister circuits, as well as federal regulatory agencies, are split on the matter. Therefore, “[b]ecause of…conflicting, inconclusive language in past cases, [the 5th Circuit] cannot find that Defendants ‘knowingly violate[d] the law.’” The 5th Circuit ultimately reversed the district court’s denial of the qualified immunity argument in the summary judgment motion and rendered judgment in favor of the individual Defendants.

If you would like to read this opinion, click here. Panel consists of Justices Davis, Jones, and Engelhardt.

The First Court of Appeals held employment discrimination claims cannot be brought under the TCHRA in state court where the same claims were previously dismissed in federal court.     

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Suran Wije v. David A. Burns and Univ. of Texas, No. 01-19-00024-CV (Tex. App.—Houston [1st Dist.] September 3, 2020) (mem. op.).

In this employment discrimination claim, the plaintiff sued a University official and the University for discrimination after he was unable to be re-employed by the University.  The Court of Appeals held that the University retained its immunity.

The plaintiff was an employee at the University from 2000-2005.  While there he made complaints regarding IT issues to his boss.  Years after resigning from the University in 2005, the plaintiff attempted to get a new position at the University but was unsuccessful.   The plaintiff found out he had been “blacklisted.” He sued the University in federal court after receiving a right to sue letter from the EEOC.  The plaintiff alleged that he was being discriminated against by the University and that his personnel file had misinformation in it.  The federal court dismissed his claims with prejudice and so he filed his claims in state court.  The claims included TCHRA claims, a 1983 claim, fraud, defamation, and negligence claims under the Texas Tort Claims Act. The trial court granted the University’s plea to the jurisdiction and the plaintiff appealed.

The State and state agencies, like the University, retain their immunity from federal sec. 1983 claims.  Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014).  University officials also retain immunity.  The TCHRA contains an election of remedies and disallows suits under the TCHRA if the claims involved have already been adjudicated by a different court.  Tex. Labor Code § 21.211; City of Waco v. Lopez, 259 S.W.3d 147, 155 (Tex. 2008).  The Texas Tort Claims Act claims must be negligence claims that cause injury to a person or damage to property under its narrow waiver and does not allow for intentional tort claims. Tex. Civ. Prac. & Rem. Code Ch. 101.   The Court of Appeals held that the University’s immunity had not been waived for any of the claims because: (1) they retain immunity for sec. 1983 claims; (2) his TCHRA claims were barred because they had already been brought to another court; and (3) neither his negligence or intentional tort claims met the requirements of the Texas Tort Claims Act.

If you would like to read this opinion click here.   Panel consists of Justices Goodman, Landau, and Hightower.  Opinion by Justice Richard Hightower.

U.S. 5th Circuit holds no deliberate indifference alleged requiring jailers to protect inmate from attack by another inmate

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Torres v. Livingston, 19-40470, 2020 WL 4933063 (5th  Cir. Aug. 24, 2020).

This is an appeal from a dismissal of an inmate’s § 1983 claims which the U.S. 5th Circuit affirmed.

Christopher Torres worked as an inmate janitor in an administrative segregation unit.  While working, another innate requested an officer to pick up photos that were on the floor just outside his cell. The officer, as a matter of routine in fulfilling inmate requests, directed Torres to go ahead and pick up the photos. While bending over to pick up the photos, the inmate stabbed Torres in his neck. Torres sued a correctional officer and several staff members and administrators per 42 U.S.C. § 1983 for allegedly failing to protect him from an inmate attack.

To hold an officer liable under the Eighth Amendment it mush be shown that the officer acted with deliberate indifference to the inmate’s health or safety. The U.S. Fifth Circuit found that Torres did not offer any facts suggesting the jailor knew of and disregarded a substantial risk to his health and safety. As a result, Torres failed to state § 1983 claim. Additionally, Torres’s failure to allege facts amounting to a constitutional violation for a failure to train or supervise.

If you would like to read this opinion click here. The panel consists of Justices Smith, Willett and Duncan.  Opinion by Justice Smith.

San Antonio Court of Appeals holds a fact question exists as to whether a deputy’s U-turn caused following traffic to skid into oncoming traffic

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Webb County v. Juan C. Garcia, 04-19-00891-CV (Tex. App. – San Antonio, July 22, 2020)

This is a motor vehicle accident case under the Texas Tort Claims Act (“TTCA”) where the San Antonio Court of Appeals affirmed the denial of the County’s plea to the jurisdiction.

Webb County Sheriff’s Deputy Mauro Lopez witnessed Saldivar pass a vehicle from a no-passing lane on a three-lane highway. Deputy Lopez applied his brakes to make a U-turn prior to initiating his lights and siren. The video from Deputy Lopez’s dash camera shows he slowed from 70 miles per hour to 16 miles per hour in seven seconds. During this time, he began moving into the center turn lane, effectively blocking all traffic behind him. This caused traffic behind Lopez to hit their brakes suddenly, which caused an 18-wheeler truck to jackknife. It skidded into the westbound lane, directly into Saldivar’s path. Saldivar’s truck and the 18-wheeler collided, killing Saldivar and all passengers. The families sued and the County filed a plea to the jurisdiction. The plea was denied and the County appealed.

The County asserted Deputy Lopez did not control the 18-wheeler which caused the accident, so no waiver of immunity exists. The TTCA waives immunity if the injury “arises from the operation or use of a motor-driven vehicle”. The TTCA does not define the term “arises from” but case law states it requires a nexus between the operation or use of the motor-driven vehicle or equipment and cause of the plaintiff’s injuries. The Texas Supreme Court has “described the threshold as something more than actual cause but less than proximate cause.” The necessary causal nexus requires a showing that the use of the vehicle actually caused the injury.  Deputy Lopez testified that a vehicle going far below the speed limit poses a hazard to vehicles traveling behind it. The police crash report notes witnesses stated it was Deputy Lopez’s drastic reduction in speed which caused following traffic to have to take evasive measures. Taking the pleadings in a light most favorable to the non-movants, the court held  the evidence in this case raises a fact question about whether Deputy Lopez’s operation or use of his vehicle was “directly, causally linked to the accident and the damages sustained.” The court next considered whether Deputy Lopez possessed official immunity. Such immunity is governed by the needs/risk analysis. The court agreed Deputy Lopez was performing a discretionary duty in choosing to pursue the perceived traffic violation. However, Webb County did not conclusively establish that a reasonably prudent officer could have determined Deputy Lopez’s actions were justified under these circumstances. There was no detailed analysis of the need for immediate apprehension vs the risks related to the U-turn at that point and in that manner. Finally, as to the County’s assertion under the emergency responder exception, routine traffic stops were not listed as emergency calls in the department manual, Deputy Lopez did not activate his lights or siren, he did not call dispatch to notify the situation was an emergency, and nothing indicates there was an immediate need to pull in front of oncoming traffic as opposed to waiting for traffic to be more cleared or by activating lights/sirens. The plea was properly denied.

If you would like to read this opinion click here. Panel consists of Chief Justice Marion, Justice Martinez, Justice Watkins.  Opinion by Justice Watkins.

Possible suspension of officer’s license does not toll the statute of limitations for Sec. 1983 claims against an officer

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Haule  v.  Travis County and Spinner, No.  03-19-00250-CV (Tex.App.–Austin May 28, 2020) (mem. op.).

[Special guest summary author Laura Mueller, City Attorney for Dripping Springs, Texas]

This case involves claims under §1983 and state law claims based on Haule’s attempt to report a crime to Travis County Officer Michael Spinner.  The court of appeals held that the statute of limitations had run against all of Haule’s claims.

Haule attempted to file a criminal complaint against the Caldwell County District Attorney based on a previous prosecution.  She called the Travis County Sheriff’s Office, claiming that the District Attorney had told her that he would put her in jail if she complained to the State Bar of Texas.  The Sheriff’s Office sent Officer Spinner to take her statement.  In his report, Officer Spinner referred to Haule as potentially mentally ill and intoxicated.  After Haule complained about Officer Spinner’s report, the Sheriff’s Office responded to Haule’s complaint in a letter stating that: (1) her claim was not sustained; (2) that the Travis County Sheriff’s Office did not have authority over the Caldwell County District Attorney; and (3) that she should contact the Caldwell County Sheriff’s Office or the Attorney General’s Office.  Seven years after receiving the letter from Travis County, Haule filed suit in Travis County District Court, alleging Section 1983 claims and general state law claims that appeared to include negligence, fraud, malicious prosecution, and defamation against Travis County and Officer Spinner.  The County filed a motion for summary judgment that the claims were frivolous, and the district court granted the motion.  Haule appealed.

The court of appeals reviewed all of the claims under each statute of limitations to determine whether any of the claims, even if substantiated, remained viable.  The court first discussed Haule’s briefing and noted that it was unclear that Haule’s claims were able to be pursued.  However, based on the information provided, the court reviewed the statute of limitations for §1983 claims, fraud, defamation, and others and determined that all of the statute of limitations had passed.  Haule argued that the statute limitations should be tolled because: (1) the report stating that she was mentally ill and/or intoxicated was “ongoing” and (2) Officer Spinner’s license was suspended during the period in question.   The court stated that the report was not ongoing and that even if Officer Spinner’s license had been suspended, it would not toll the statute of limitations. The district court’s judgment was affirmed.

If you would like to read this opinion, click here. The panel consists of Chief Justice Rose, Justices Baker and Triana.

U.S. 5th Circuit adopts 1st Amendment unbridled discretion/prior-restraint standards in federal suit against Texas Governor

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Freedom from Religion Foundation, Inc. v. Greg Abbott Governor of the State of Texas, 18-50610, (5th Cir – April 3, 2020)

This is a First Amendment case regarding immunity and viewpoint discrimination where the U.S. 5th Circuit adopted a specific prior restraint test.

The Texas State Preservation Board (“the Board”) is a state agency that preserves and maintains the Texas Capitol and its grounds. Governor Abbott is the chairman of the Board, which allows private citizens to display exhibits within the Texas Capitol building. Such displays must have a public purpose. FFRF is a non-profit organization that advocates for the separation of church and state and educates on matters of nontheism. FFRF learned that a Christian nativity scene had been approved by the Board and displayed in the Texas State Capitol. FFRF submitted an application to the Board regarding a Bill of Rights nativity exhibit, which was also approved. FFRF’s depiction was displayed, but the day before its final display date, Governor Abbott sent a letter to then Executive Director of the Board, Mr. Welch, urging him to “remove this display from the Capitol immediately.” The letter explained that the exhibit was inappropriate for display because “[s]ubjecting an image held sacred by millions of Texans to the Foundation’s tasteless sarcasm does nothing to promote the morals and the general welfare,” “the exhibit promotes ignorance and falsehood insofar as it suggests that George Washington, Benjamin Franklin, and Thomas Jefferson worshipped (or would worship) the bill of rights in the place of Jesus[.]”  This letter resulted in the removal of the FFRF display prior to its scheduled removal date. When FFRF submitted another application for the same display, it was told the display did not promote a public purpose. FFRF sued for declaratory and injunctive relief.  The district court granted FFRF summary judgment on certain grounds and denied it on others.  The parties appealed/cross-appealed.

Governor Abbott and Mr. Welsh argue that the district court’s declaratory judgment is retrospective and therefore barred by sovereign immunity (including 11th  Amendment immunity). They further asserted no prospective relief was proper because the dispute is not ongoing. A litigant may sue a state official in his official capacity in federal court as long as the lawsuit seeks prospective relief to redress an ongoing violation of federal law. FFRF alleged constitutional violations against Abbott and Welsh in their official capacities. Further, they established an ongoing violation and Abbott and Welsh did not technically appeal the viewpoint discrimination finding. Speech cannot be prohibited on the basis of offensiveness, and the defendants have only presented arguments through counsel that their behavior will change.  The district court had jurisdiction to entertain the suit, and the controversy is ongoing.  The district court did not, however, have jurisdiction to award FFRF purely retrospective relief.  The declaration that FFRF’s rights were violated in the past is prohibited to the extent it is an individual claim. The U.S. 5th Circuit remanded for the trial court to determine proper prospective relief.  Next, the court analyzed the unbridled discretion arguments regarding public purpose determinations (i.e. prior restraint arguments). Unbridled discretion runs afoul of the First Amendment because it risks self-censorship and creates proof problems in as-applied challenges. Even in limited and nonpublic forums, investing governmental officials with boundless discretion over access to the forum violates the First Amendment. However, in situations such as where space is limited, certain discretion should be afforded. Because discretionary access is a defining characteristic of a limited public forum, the government should be afforded more discretion to use prior restraints on speech in limited public forums than in traditional public forums. The possibility (including imposed checks and balances) of viewpoint discrimination is key to deciding unbridled discretion claims in the context of limited or nonpublic forums. A reasonableness test would be insufficient, by itself.  In a matter of first impression for the 5th Circuit, the court held that prior restraints on speech in limited public forums must contain neutral criteria sufficient to prevent (1) censorship that is unreasonable in light of the purpose served by the forum and (2) viewpoint-based censorship. Because the district court only considered whether the public purpose criteria at issue in this case was reasonable, the issue was remanded.

If you would like to read this opinion click here. Panel consists of Davis, Graves, and Higginson, Circuit Judges. Vacated and Remanded in part; Reversed and Remanded in part. Memorandum Opinion by Higginson, Circuit Judge. Attorney for Appellant is Kyle Douglas Hawkins, of Austin, Texas. Attorney for Appellee is Samuel Troxell Grover, of Madison, Wisconsin.