Suspect unable to dispute officer’s evidence suspect reached towards waistband and perceived weapon so officer is entitled to immunity

 Salazar-Limon v. City of Houston 15-20237 (5th Cir. June 15th  2016)

This is a §1983 excessive force case where the U.S. 5th Circuit affirmed the granting of an officer’s qualified immunity.

Salazar was driving with three other men in his truck and had been drinking. Officer Thompson observed Salazar’s truck weaving between lanes and speeding in excess of the posted limit so initiated a traffic stop. While the basis for the next series of events is disputed, the undisputed evidence established 1) Officer Thompson tried to handcuff Salazar; 2) Salazar resisted; 3) a brief struggle ensued (in which neither party was injured); and 4) after the brief struggle, Salazar pulled away, turned his back to Officer Thompson, and walked away. However, when Salazar reached towards his waistband covered by a shirt, Thompson feared he was retrieving a weapon and shot him. Salazar became partially paralyzed. Thompson found out afterward Salazar was not armed. Salazar was charged with, and pleaded nolo contendere to, resisting arrest and driving while intoxicated.  Salazar sued but his claims were dismissed by Thompson’s and the City’s motion for summary judgment. Salazar appealed.

“In order to overcome a qualified immunity defense, a plaintiff must allege a violation of a constitutional right, and then must show that ‘the right was clearly established . . . in light of the specific context of the case.’”  Moreover, “[t]his [plaintiff’s] burden is not satisfied with ‘some metaphysical doubt as to the material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” “The ‘[u]se of deadly force is not unreasonable when an officer would have reason to believe the suspect poses a threat of serious harm to the officer or others.’” Unless Salazar presented competent summary judgment evidence that he did not reach toward his waistband (for what Officer Thompson perceived to be a weapon), Officer Thompson’s decision to shoot was not a use of unreasonable or excessive deadly force.  Salazar did not present any such evidence. Therefore, Thompson was properly granted qualified immunity. And since Salazar has not shown a violation of his constitutional rights, all of his Monell claims against the City of Houston fail as a matter of law.

To read the opinion click here. Panel consists of Circuit Justices Reavley, Jolly and Elrod. The opinion was delivered by Justice Jolly. Salazar’s attorney is listed as Sean M. Palavan and the attorney listed for the City and Thompson is Robert William Higgason.