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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                                 Fifth Circuit

                                                                                FILED
                                                                          September 16, 2014
                                      No. 13-20022
                                                                             Lyle W. Cayce
                                                                                  Clerk
STEVE HOBART, Individually and as Representative of the Estate of Aaron
Hobart; PAM HOBART, Individually and as Representative of the Estate of
Aaron Hobart,

                                                 Plaintiffs-Appellees
v.

JESUS ESTRADA; BONNY KRAHN,

                                                 Defendants-Appellants




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-3332


Before OWEN, SOUTHWICK, and GRAVES, Circuit Judges.
JAMES E. GRAVES, Jr., Circuit Judge:*
       This is an appeal of the district court’s denial of a motion for summary
judgment on the basis of qualified immunity in an excessive force case arising
from the shooting death of a mentally ill teenager after the parents sought the
assistance of a Crisis Intervention Team officer in transporting the teenager to
the hospital. Because the district court did not err and we lack jurisdiction



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 13-20022
over this appeal with regard to Officer Jesus Estrada, we DISMISS as to the
first issue. A separate majority REVERSES the denial of summary judgment
as to Chief Bonny Krahn, granting him qualified immunity on the claim he
failed to train on the appropriate use of force.


                  FACTS AND PROCEDURAL HISTORY

      Aaron    Hobart    was   a   nineteen-year-old     who   suffered    from   a
schizoaffective disorder, which caused delusions. Aaron had been under the
treatment of various physicians and was taking medication, but stopped taking
the medication in November 2008. Aaron’s mental health was deteriorating
and on February 16, 2009, his mother, Pam Hobart (Mrs. Hobart), called the
office of his psychiatrist, Dr. C. Scott Moreland, to request an appointment. An
appointment was scheduled for February 18. Dr. Moreland’s office instructed
Mrs. Hobart to notify them if Aaron’s mental status changed and she was
instructed to take Aaron to the emergency room or call 911 if he became a
danger to himself or others.
      On February 18, 2009, Aaron refused to leave his room to visit the doctor.
Aaron’s father, Steve Hobart (Mr. Hobart) returned from work to find Aaron in
his room and speaking “belligerently and abusively” in a raspy alternate voice.
Dr. Moreland instructed Mrs. Hobart not to force Aaron to attend the
appointment that day and emailed instructions regarding the administration
of Aaron’s medication, for which Dr. Moreland called in a prescription to the
local pharmacy.      He also provided information on the Houston Crisis
Intervention Team (CIT). The CIT program educates police officers on mental
illness and tactics to verbally de-escalate situations involving individuals in
serious mental health crises.      The information provided by Dr. Moreland
indicated that the proper course of action in an emergency situation would be
to call 911 and request a CIT officer, who would have the appropriate training
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                                       No. 13-20022
and could take the patient to a facility for an emergency mental health
evaluation.
       Mr. Hobart tried unsuccessfully to get Aaron to take the medication,
despite informing Aaron that if he failed to take it he would be transported to
the hospital so it could be administered and he would not have access to his
laptop computer or his cellular telephone. As a result of Aaron’s deteriorating
mental health crisis, Mrs. Hobart called 911 and requested a CIT officer. Mrs.
Hobart advised the Stafford Police Department (SPD) that Aaron was
becoming very violent and delusional, that he needed medication and needed
to be in the hospital, but that he was not hurting anyone, did not have any
weapons, and was not under the influence of any substance. The operator
indicated that an officer would be dispatched to the home. SPD officers Garcia
and Claunch were the primary officers dispatched to the house, but Officer
Jesus Estrada was the first to arrive on the scene. Estrada, who was then 23
years old, admitted that he had been advised that Aaron was not armed and
that he was delusional.
       It is undisputed and evidenced by the patrol car dash cam video, that
Estrada, who did not wait for the primary responding officers to arrive, entered
the home by himself at approximately 15:07:59 and began conversing with
Mrs. Hobart. At approximately 15:08:15, Estrada shouted “Stop!” three times
and “Get back!” twice, while Mrs. Hobart screamed “Stop!” multiple times. At
approximately 15:08:20, twenty-one seconds after Estrada entered the home,
gunshots are heard. Estrada then began shouting, “Goddamnit!” “Shots fired!”
and “Oh my god!” and Mrs. Hobart was screaming. 1 Estrada fired six or seven
shots, four of which struck Aaron: one in the back of the right upper neck,


       1There are differing versions of the events, which will be discussed more fully herein,
that transpired during Estrada’s fifty-four seconds in the house, specifically during the first
twenty-one seconds when Aaron was killed.
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                                 No. 13-20022
which severed his spinal cord; one in the right lower back; one in the back of
the right hip; and one in the right middle back. At approximately 15:08:43 the
other officers arrived at the house and accompanied Estrada outside onto the
lawn, where he knelt down with his head on the ground and sobbed, repeatedly
saying, “Oh, my god” and later asking “what is wrong with me?” Dispatch
transcripts following the shooting repeatedly indicate that no officers were
injured during the incident.
      As a result of Aaron’s death, his parents filed an action against the City
of Stafford, Estrada, and Chief of Police Bonny Krahn for the unconstitutional
use of excessive and deadly force, assault and battery, bystander injury,
violations of the Americans with Disabilities Act and Section 504 of the
Rehabilitation Act, and various claims regarding department policy, failure to
supervise and failure to train.     The district court partially granted the
defendants’ motion for summary judgment on various claims. Of relevance to
this appeal, by orders dated April 29, 2011, April 17, 2012, and January 9,
2013, the district court denied the defendants/appellants’ motion for summary
judgment on the basis of qualified immunity, with regard to Estrada’s use of
excessive and deadly force and Krahn’s failure to train. Subsequently, Estrada
and Krahn filed this appeal.
                         STANDARD OF REVIEW
      This court reviews de novo a district court’s denial of a motion for
summary judgment on the basis of qualified immunity. Kovacic v. Villarreal,
628 F.3d 209, 211 (5th Cir. 2010). Summary judgment is appropriate when
“the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The denial of a motion for summary judgment on the basis of qualified
immunity is immediately appealable, to the extent that it turns on an issue of
law. Kovacic, 628 F.3d at 211. The limitation of the interlocutory appellate
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                                  No. 13-20022
jurisdiction to questions of law prohibits this court’s consideration of the
correctness of plaintiff’s version of the facts. Good v. Curtis, 601 F.3d 393, 397
(5th Cir. 2010).
             This means that the district court’s finding that a genuine
      factual dispute exists is a factual determination that this court is
      prohibited from reviewing in this interlocutory appeal. But the
      district court’s determination that a particular dispute is material
      is a reviewable legal determination.           Thus, a defendant
      challenging the denial of a motion for summary judgment on the
      basis of qualified immunity must be prepared to concede the best
      view of the facts to the plaintiff and discuss only the legal issues
      raised by the appeal.

Id. at 397-98. (Internal marks, citations and emphasis omitted). See also
Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) (“If a factual dispute must
be resolved to make the qualified immunity determination, that fact issue is
material and we lack jurisdiction over the appeal.”).
      This court has further said that it assigns greater weight, even at the
summary judgment stage, to facts evident from video recordings taken at the
scene. Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir.2011). “A court
of appeals need not rely on the plaintiff's description of the facts where the
record discredits that description but should instead consider ‘the facts in the
light depicted by the videotape.’ ” Id. (quoting Scott v. Harris, 550 U.S. 372,
381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)).         See also Poole v. City of
Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
                                 DISCUSSION
I. Whether the district court erred by failing to enter summary
judgment in favor of Police Officer Jesus Estrada on the basis of
qualified immunity.

      Excessive force claims are necessarily fact-intensive.           Deville v.
Marcantel, 567 F.3d 156, 167 (5th Cir. 2009).           To establish a Fourth

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                                 No. 13-20022
Amendment violation, the question is whether the officer’s actions are
“objectively reasonable” in light of the facts and circumstances. Graham v.
Connor, 490 U.S. 386, 397 (1989). To overcome an officer’s claim of qualified
immunity, the Hobarts must show “(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.” Ontiveros v. City of
Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009).
      Aaron’s death was caused by an injury which resulted from the deadly
force employed by Estrada, so the issue is whether the use of that deadly force
was unreasonable. This court gauges the objective reasonableness of the force
by balancing the amount of the force used against the need for force. Carnaby,
636 F.3d at 187-188. The factors to be considered include “the severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting arrest or attempting
to evade arrest by flight.” Deville, 567 F.3d at 167.
      Estrada testified in his deposition that when he entered the house at the
invitation of Mrs. Hobart, he thought the disturbance was over because
everything was quiet and normal. After speaking with Mrs. Hobart, the two
walked down the hall approximately five feet from the front door and he saw
Aaron approximately thirty to forty feet away standing in his bedroom facing
away from Estrada. Estrada said that Aaron turned, saw him, loudly “roared,”
raised his arms to waist level and began to charge. Estrada testified that he
was unable to get out of Aaron’s way or out of the house, and that Aaron began
“attacking” him. In his statement to police, Estrada characterized this as, “he
fucking nailed me, dude.” Estrada testified that he was thinking “oh, shit. Oh,
shit” because he was “fixing to either get hit or we’re fixing to have a fight.”
Estrada testified that he attempted to remove his ASP baton, but was unable
to because he was hit in the face. However, when confronted with his prior
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                                 No. 13-20022
statement, Estrada said that the baton was actually stuck in his holster, which
he later discarded and replaced. Estrada also testified that he was unable to
use his OC (pepper) spray, although he did not know how long it would have
taken to get his OC spray out of his holster.
      Of particular significance, Estrada testified that he was “punched in the
face” to the point that he was “disoriented for a second or two” and then unable
to make a calm, rational decision. Estrada was unable to remember when he
came back to his senses, although he did have the wherewithal to shout “Stop!”
and “Get back!” and pull his duty weapon during this time. With regard to the
“attack,” Estrada testified that he never actually saw Aaron hit him, but rather
he remembered “hearing – or hearing and feeling the thumps on my head”
which he attributed to being punched in the left side of the head. Estrada
admitted that he did not know how he got hit and that he informed the staff at
the hospital that he did not know how he got hit. Significantly, regarding when
he decided that Aaron had hit him in the head, Estrada testified that he
decided, “Once I learned from my attorney” that Aaron had hit him because
“there was no weapons involved.”
      While Estrada remembered pulling his duty weapon and seeing a “fist,”
he remembered only “what I knew in my ears was the concussions (sic) of
bullets” and did not realize he was shooting or at whom he was shooting.
Estrada said he believed his life was in danger because “I remember seeing
stars, sir, and dark – darkness coming into what I knew was my vision” which
meant he was about to be “knocked out.” However, Estrada was unable to
remember his location at the time of the shooting, where Aaron or the Hobarts
were positioned in the home, how many times he shot Aaron or the location of
the entry wounds on Aaron’s body, or how many other shots were fired or where
they landed, including one that went through the front door seconds before the
primary officers arrived. Estrada was also unable to explain the location of
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                                No. 13-20022
blood indicating that Aaron was shot farther up the hallway than where he
was found.
      After shooting Aaron, who was collapsed in a pool of blood with a severed
spinal cord, Estrada also remembered “feeling the thump whenever I – I fell
on my back,” yelling, and attempting to close his hand around his gun to shoot
Aaron some more because “I thought he was – he was coming – coming for me
again.” Estrada’s reaction was actually to the arrival through the front door
seconds later of the other officers who were then grabbing Estrada by his vest
to take him outside.
      In his statement to police, Estrada also said that he remembered Aaron
being bigger than him. In fact, Aaron was about four inches shorter and some
thirty pounds lighter than Estrada.
      During his deposition, Mr. Hobart testified that he was sitting on the
floor in Aaron’s room while Aaron paced back and forth. Aaron was speaking
belligerently and in a hoarse, alternate, whispered voice.        Mr. Hobart
attempted to get Aaron to take the medication prescribed by his doctor, and
when Aaron refused, Mr. Hobart explained to Aaron that he would have to be
taken to the hospital where the medication would be administered. Mr. Hobart
said he also told Aaron that he would lose the ability to access his cellular
telephone or his laptop while in the hospital. Mr. Hobart said that, after
hearing Estrada’s voice, “I remember thinking to myself that the Crisis
Intervention Team had likely arrived and that they were going to be burly men
with a straightjacket ready to take Aaron to the hospital.”      Shortly after
hearing Estrada’s voice, Aaron moved toward the doorway of his bedroom and
Mr. Hobart testified that, “I reached the conclusion that he was trying to exit
and that the guys ready to receive him would probably need some notice, so I
called out, ‘Here he comes.’” Mr. Hobart was still seated in Aaron’s room when
Aaron exited and by the time Mr. Hobart went into the hallway, Aaron had
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                                 No. 13-20022
already been shot. Mr. Hobart observed Estrada in a sitting or near sitting
position, speaking forcefully and cursing.
            I turned my gaze towards Aaron and I saw that his body was
      prone, facedown. His head was turned towards the front of the
      house. The most striking thing in my field of vision was a big hole
      in the back of his head – in the back of his head. I was almost
      transfixed by that.
            I thought, how does he get shot in the back of the head? And
      being that he’s shot in the back of the head is where all this blood
      on the floor is coming from probably, because I know the head
      takes a lot of our blood supply, and I had to get over there and plug
      that hole, put some pressure on it.
            But I was also thinking, a bullet to the brain, either he’s
      going to die or he’s going to be in a coma. If he’s in a coma in that
      deteriorating mental state that he’s in, it’s going to be a long hell
      for him. And I just knew that I had to go plug the hole.
      . . .
            I was next to him kneeling towards the interior of the foyer
      with my hand, my right hand over the hole in the back of his head.


      Mr. Hobart also testified that Estrada did not render any first aid to
Aaron, and that shortly thereafter two additional officers entered the home.
      Mrs. Hobart testified during her deposition that when Estrada arrived
she was under the belief that she was “getting a CIT person” who was going to
explain things and go “through a certain procedure, so I was trusting that they
knew what was going to happen next.” She further testified that Aaron was
flailing his arms as he went toward the front door and that his arms hit
Estrada’s arms, but she never saw Aaron hit Estrada in the head. She testified
that Aaron flailed his arms for four or five seconds, then stopped, and that it
was approximately two or three seconds after he stopped that Estrada began
firing.
            After they had pivoted around and the officer now was pretty
      much where Aaron was and now Aaron was closer to the door and
      there was a separation of two or three feet. And that’s when the

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                                 No. 13-20022
      officer pulled his gun, and that is when I had shifted my weight to
      go in-between them, and that’s when he pulled his gun. And that’s
      when I backed up behind him, right at the point of where the
      hallway was. . . .

      The district court found that there is conflicting evidence on whether
Estrada had probable cause to believe that Aaron posed a significant threat of
death or serious physical injury to Estrada or to others and that a reasonable
jury could find that Estrada lacked such probable cause. As the district court
found, the video recorded only audio from within the house and does not show
what actually occurred inside the home. Mrs. Hobart was an eyewitness to the
events that led up to the shooting. Moreover, Estrada admitted that he did not
see Aaron hit him.
      The record contains photographs, purportedly taken the night of the
shooting despite sunlight being visible through the window in some of the
photographs, which establish that Estrada suffered no bruising or apparent
injury. The photographs do show some minor redness underneath Estrada’s
left sideburn, which the Hobarts’ attorney aptly described as similar to razor
burn, and some acne-like bumps on Estrada’s back, although Estrada does not
claim that Aaron hit him in the back or the lower face. Further, in one of the
photographs, Estrada is using the business card of his criminal defense lawyer,
who was hired and waiting for him at the hospital within about twenty minutes
of the shooting, to measure the size of the very small area under his sideburn.
Estrada argues in his brief that the injuries to his head required hospital
treatment and that the district court ignored material evidence that
“establishes Officer Estrada had bruising, substantial swelling and symptoms
of traumatic brain injury as a result of Hobart’s attack.” Notably, Estrada fails
to provide any citation to the record in support of this claim. Further, the
record does not support any such claim. While Estrada was taken to the

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                                 No. 13-20022
hospital, where he was treated and released, Estrada testified that he did not
know what prescription he received, for what amount or for how long he took
it. Also, the photographs do not show an “egg sized contusion” that Estrada
asserts was seen by another detective.       Also, again, dispatch transcripts
following the shooting repeatedly indicate that no officers were injured during
the incident.
      Mrs. Hobart specifically requested that a CIT officer be dispatched when
she called 911. She clearly told the dispatcher that Aaron was becoming
delusional and violent, but that he was not hurting anyone, needed medication
and needed to be hospitalized. The district court thus found that, “based on
the 911 call, there was reason for Officer Estrada or other police officials to
believe that Hobart could potentially be violent, but not that he had committed
any crime or hurt anyone.” The district court also found that the video does
not support Estrada’s claim that Aaron made any noise such as a “roar” or that
Estrada’s life was in jeopardy. Specifically, the court said:
      Accordingly, if a jury were to credit Mrs. Hobart’s testimony, it
      could reasonably conclude that Officer Estrada faced only minor
      physical contact from Aaron, and that such contact ended and the
      two men were separated for multiple seconds prior to Officer
      Estrada pulling out his gun and shooting Aaron approximately six
      times. Under that factual scenario, Officer Estrada would lack
      probable cause to believe that Aaron posed a significant threat of
      death or serious physical injury to Officer Estrada or to others, and
      shooting Aaron in the manner that he did would be clearly
      excessive and unreasonable.

      The district court thus found summary judgment inappropriate based on
the genuine issues of material fact. The district court further found that
Estrada was not entitled to qualified immunity because the plaintiffs had
provided evidence of a factual scenario under which Estrada’s use of force



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                                   No. 13-20022
would constitute a constitutional violation of clearly established law and was
objectively unreasonable.
      The district court’s thorough and well-reasoned orders are entirely
supported by the record. As the district court noted, regardless of whether an
officer’s mental state caused him to panic such that he unreasonably
determined that a threat was present, that would not render his determination
reasonable. As stated previously herein, Ontiveros provides the standard that
must be met in an excessive force case such as this. Ontiveros, 564 F.3d 382.
Again, Aaron’s death was caused by an injury which resulted from the deadly
force employed by Estrada, so the issue is whether the use of that deadly force
was unreasonable. Again, this court gauges the objective reasonableness of
the force by balancing the amount of the force used against the need for the
force. Carnaby, 636 F.3d at 187. Based on the analysis above, the applicable
law and the record in its entirety, Estrada has failed to establish that his use
of deadly force was reasonable. See Deville, 567 F.3d at 167-169; Flores v. City
of Palacios, 381 F.3d 391, 399 (5th Cir. 2004); and Bazar v. Hidalgo County,
246 F.3d 481 (5th Cir. 2001).        Therefore, he is not entitled to summary
judgment on the basis of qualified immunity. Further, this appeal is based on
a factual dispute. As stated previously, “if a factual dispute must be resolved
to make the qualified immunity determination, that fact issue is material and
we lack jurisdiction over the appeal.” Manis, 585 F.3d at 843. Neither the
record nor the video discredits the plaintiffs’ version of the facts, therefore, this
court does not have jurisdiction over the appeal. Accordingly, we dismiss as to
Estrada.




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                                  No. 13-20022
II. Whether the district court erred by failing to enter summary
judgment in favor of Chief of Police Bonny Krahn on the basis of
qualified immunity.
LESLIE H. SOUTHWICK, Circuit Judge:
      The Hobarts stated claims against the City of Stafford and Chief Krahn,
contending the City had a policy of inadequately training its police officers and
that Chief Krahn was liable for his role in implementing the City’s allegedly
deficient policies. They point to three distinct subjects on which the Stafford
Police Department’s training was deficient: (1) training on the appropriate use
of force, (2) Officer Estrada’s CIT training, and (3) training on the proper
method of dispatching mental health calls. The district court granted qualified
immunity to Chief Krahn on the second and third claims. The Hobarts have
not cross-appealed, and thus the court’s grant of qualified immunity for Chief
Krahn on those theories of liability is undisturbed.
      The court denied Chief Krahn qualified immunity on the claim that he
had failed to train officers on the appropriate use of force. Thus, the single
basis remaining for Chief Krahn’s liability, and the subject of our review, is
whether the district court erred in denying Chief Krahn qualified immunity on
the claim he failed to train SPD officers on the appropriate use of force.
      “Under section 1983, supervisory officials are not liable for the actions of
subordinates on any theory of vicarious liability.” Thompson v. Upshur Cnty.,
245 F.3d 447, 459 (5th Cir. 2001) (citation omitted). To establish Section 1983
supervisory liability against Chief Krahn, the Hobarts must show that “(1) the
police chief failed to supervise or train the officer; (2) a causal connection
existed between the failure to supervise or train and the violation of the
plaintiff’s rights; and (3) the failure to supervise or train amounted to
deliberate indifference to the plaintiff’s constitutional rights.” Roberts v. City
of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005).


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                                  No. 13-20022
      It is not disputed that the City delegated policymaking authority for the
police department to Chief Krahn. The policies are contained in the “General
Orders,” which are the written guidelines of the department which contain all
SPD policies with respect to the conduct of police officers – including the use of
force. Regarding the department’s policy on use of force, Sergeant Claborn
testified that Estrada’s actions complied with department policy and that
officers were trained to fire until a threat is over if they are losing
consciousness. Claborn did not suggest that officers were trained to adjust
their use of force based on the severity of the situation, or to use the least
amount of force necessary. Chief Krahn also testified that Estrada complied
with department policy on the night of Aaron’s death. The record indicates an
internal investigation found Estrada’s conduct was within the guidelines of the
SPD. During his deposition, Officer Estrada was repeatedly unable to provide
the appropriate policy or procedure with regard to the use of force. He testified
that it was appropriate to use deadly force wherever he deemed necessary.
      As we conclude in Part I of this opinion, Officer Estrada has failed to
establish that his use of deadly force was reasonable. The evidence indicates,
nevertheless, that Estrada’s use of force was in compliance with department
policy. We agree with the district court that a factual question exists regarding
the sufficiency of the training SPD officers received with respect to the
appropriate use of force. The denial of qualified immunity for Chief Krahn,
however, also requires proof that the failure to train on the appropriate use of
force amounted to deliberate indifference.
       “Deliberate indifference is a stringent standard, requiring proof that a
municipal actor disregarded a known or obvious consequence of his action.”
Valle v. City of Houston, 613 F.3d 536, 547 (5th Cir. 2010) (citation omitted).
Deliberate indifference may be found in two types of situations: (1) a general
failure to provide adequate training in light of the foreseeable serious
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                                   No. 13-20022
consequences that could result, and (2) a municipality fails to act in response
to the specific need to train a particular officer. See City of Canton v. Harris,
489 U.S. 378, 390 (1989); Brown v. Bryan Cnty., 219 F.3d 450, 457 (5th Cir.
2000).   We deal with the first — that Aaron’s death was a foreseeable
consequence of the lack of training of all officers on appropriate force. To
establish deliberate indifference, a plaintiff must usually show a pattern of
similar violations. See Valle, 613 F.3d at 547. Even without evidence of a
pattern of similar incidents resulting from a deficient training policy, a
plaintiff can still establish deliberate indifference under the single incident
exception. Id. at 549. This exception is narrow and requires proof “that the
highly predictable consequence of a failure to train would result in the specific
injury suffered, and that the failure to train represented the moving force
behind the constitutional violation.” Id. (citation omitted).
      The Hobarts argued to the district court — in their response to Chief
Krahn’s motion for summary judgment on the basis of qualified immunity —
that their evidence established a pattern of similar violations “in that the
person in charge of training with respect to the use of force testified that the
city had trained for years to use subjective evaluation for use of force and that
it is not required to use the least amount of force necessary.” Although they
cite to evidence that there was a pattern of failing to train, they did not cite to
evidence of a pattern of similar incidents concerning the use of excessive force.
They also mention the single incident exception, but only in the context of their
claim for failure to train on CIT procedures. No evidence is put on by the
Hobarts explaining application of the single incident exception to their claim
for failure to train on the use of force.
      The district court correctly identified that, because the Hobarts had not
introduced evidence of similar incidents, they must establish deliberate
indifference under the single incident exception. The court then explained that
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                                   No. 13-20022
the single incident exception required evidence that Chief Krahn “had
sufficient notice . . . that the failure to train [officers on the appropriate use of
force] was likely to lead to a violation of the Fourth Amendment rights of those
[they] would encounter.” Brown, 219 F.3d at 460. The court acknowledged
that the present case was distinguishable from Brown — which concerned the
training of a single deputy — because the allegation here is that the use of
force training provided to all officers was constitutionally deficient.
Nevertheless, the court relied on Brown and the Supreme Court’s decision in
City of Canton to conclude that a jury could find that the need to train officers
on the constitutional limitations on the use of force was “so obvious, that failure
to do so could properly be characterized as deliberate indifference to
constitutional rights.” City of Canton, 489 U.S. at 390 n.10 (quotation marks
omitted). This conclusion was based solely on evidence that the City knew its
officers would find themselves in situations where they were required to
determine the appropriate level of force to use and equipped its officers with
firearms, allowing them to use deadly force. Id. On appeal, the Hobarts repeat
this analysis, citing the evidence that the Chief knew his officers were armed
and would find themselves in situations requiring a determination on the
appropriate use of force as evidence of the obviousness of the need to train on
the use of force and demonstrating Chief Krahn’s deliberate indifference. They
cite no additional evidence supporting application of the exception.
       In Valle v. City of Houston, we indicated that, typically, application of
the single incident exception requires evidence of the proclivities of the
particular officer involved in the excessive use of force.        613 F.3d at 549
(collecting cases applying or denying application of the exception). While our
case law does not absolutely require evidence of character traits or proclivities
of the officer responsible for the single constitutional violation, “such evidence
certainly is probative in determining that a ‘highly predictable’ consequence of
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                                   No. 13-20022
sending the particular officer[] into a particular situation would be a
constitutional violation.” Id.    Notably, the district court here conducted the
Valle analysis of Officer Estrada’s proclivities in assessing whether the failure
to train on CIT procedures was undertaken with deliberate indifference under
the single incident exception. The court did not conduct a similar inquiry
discussing Valle and evidence of Officer Estrada’s history or proclivities for
using excessive force in the context of the claim for failure to train on the use
of force.
      “This court has been wary of finding municipal liability on the basis of a
single incident to avoid running afoul of the Supreme Court’s consistent
rejection of respondeat superior liability.” Id. In fact, we are aware of only one
instance in which we found a single incident sufficient to support municipal
liability; that case included “an abundance of evidence about the proclivities of
the particular officer involved in the excessive use of force.” Id. Here, the
district court applied the exception based solely on evidence that the training
was deficient, and that officers will naturally find themselves in situations
requiring an assessment on the appropriate use of deadly force. Thus, the
court in effect concluded, because Chief Krahn must know the risks of not
training properly on the use of deadly force, he could be found deliberately
indifferent for not providing better training.        We conclude that is far too
expansive an application of what is supposed to be an extremely narrow rule.
It converts general knowledge of the dangers inherent if poor training is given
on the use of force to specific deliberate indifference on the part of this police
chief to the risks his office’s training created.
      Deliberate indifference flows from knowledge of the effects of decisions
or conditions and taking no steps to correct the shortcomings, which is why the
single-incident exception rarely can succeed.         Instead of showing a prior
incident that would have created the knowledge, the Hobarts have done
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                                   No. 13-20022
nothing more than show deficient training on the use of force. In the absence
of a prior incident, the training deficiencies must have been so obvious that the
shooting here would have appeared to Chief Krahn as a “highly predictable
consequence.” Valle, 613 F.3d at 549. The Hobarts have not brought to our
attention any case, and we are aware of none, supporting a finding of deliberate
indifference based on no more than this. See id. (requiring more proof of the
possibility of recurring situations than that sending in a non-CIT trained
officer to a situation involving mental health individuals would likely
constitute the use of excessive force).
      We find no evidence to support that Chief Krahn was aware that a
shooting such as this was a highly predictable result of the training being
provided. It was incumbent on the Hobarts to present such evidence. They did
not do so in the form of a pattern of violations or the proclivities of Officer
Estrada. The Hobarts also did not offer any other evidence to support that
deficiencies in the training made Chief Krahn deliberately indifferent when he
did not provide better training.
      Accordingly, the district court erred in concluding the failure to train on
the appropriate use of force was undertaken by Chief Krahn with deliberate
indifference. Chief Krahn is entitled to qualified immunity on the claim he
failed to train on the appropriate use of force.
      We DISMISS the appeal of the district court’s denial of summary
judgment for Officer Estrada on the basis of qualified immunity.                 We
REVERSE the district court’s denial of summary judgment for Chief Krahn on
the claim for failure to train on the appropriate use of force and GRANT Chief
Krahn qualified immunity.




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                                     No. 13-20022
GRAVES, Circuit Judge, dissenting, in part, as to Issue II:

      The separate majority essentially eliminates the applicability of the
single incident exception to claims for failure to train on the use of deadly force
and reverses the denial of summary judgment to Chief Krahn. I disagree.
Because I would affirm the district court’s denial of summary judgment and
dismiss Krahn’s appeal, I respectfully dissent only as to Issue II.
      This court has said that “[s]upervisory officials may be held liable only
if: (i) they affirmatively participate in acts that cause constitutional
deprivation; or (ii) implement unconstitutional policies that causally result in
plaintiff’s injury.” Mouille v. City of Live Oak, Texas, 977 F.2d 924, 929 (5th
Cir. 1992).
      Krahn asserts that the City’s police officer training program exceeds
constitutional standards, that he was not deliberately indifferent, and that he
was not objectively unreasonable. 1       The Hobarts assert that they have
presented evidence that Estrada’s excessive force actions were entirely
consistent with SPD policy and that Krahn was deliberately indifferent in
failing to train Estrada on the use of deadly force.
      In a failure to train case, the Hobarts can prove deliberate indifference
either by showing a pattern of tortious conduct providing notice of inadequate
training or by using, as is applicable here, the single incident exception. See
Board of County Comm'rs of Bryan Cnty v. Brown, 520 U.S. 397, 405-408, 117
S.Ct. 1382, 137 L.Ed.2d 626 (1997). Under the single incident exception, a
single violation of rights may be sufficient to prove deliberate indifference. Id.
at 408-409.




      1  The majority concedes that the only issue remaining is whether Krahn was
deliberately indifferent.
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                                           No. 13-20022
       The majority misapprehends the holding in Valle v. City of Houston, 613
F.3d 536 (5th Cir. 2010), as indicating that “typically, application of the single
incidence exception requires evidence of the proclivities of the particular officer
involved in the excessive use of force.” Not only is there no such requirement
under Valle, but such a requirement would defeat the very notion of a single
violation. 2 Contrary to the majority’s holding here, Valle actually says that,
although such evidence may be probative in determining a highly predictable
consequence for municipal liability in a situation involving sending a
particular officer into a particular situation, there is no requirement of any
such evidence. Id. at 549. See also Brown v. Bryan Cnty., Okla., 219 F.3d 450,
459 (5th Cir. 2000) (“[L]iability can attach for a single decision not to train an
individual officer even where there has been no pattern of previous
constitutional violations.”). Moreover, the United States Supreme Court has
made it clear that, “once a municipal policy is established, ‘it requires only one
application ... to satisfy fully Monell's[ 3] requirement that a municipal
corporation be held liable only for constitutional violations resulting from the
municipality's official policy.’” Pembaur v. City of Cincinnati, 475 U.S. 469,
478 n.6, 106 S.Ct. 1292 (quoting Oklahoma City v. Tuttle, 471 U.S. 808, 822,
105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)). Thus, any requirement of evidence
showing a history of violations pursuant to the policy contradicts controlling
precedent.
       More importantly, while the majority is correct that the single incident
exception is narrow, Valle does not in any way suggest that death is not a
highly predictable consequence of failure to train on the use of deadly force.


       2 Likewise, there is no requirement that the district court engage in any analysis of
such evidence in assessing a claim for failure to train on the use of deadly force. I also note
that the use of force is a recurring police function with highly predictable consequences.
       3 Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56

L.Ed.2d 611 (1978),
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                                      No. 13-20022
Further, in this case, the failure to train on the use of deadly force would clearly
represent the moving force behind the constitutional violation stemming from
unreasonable use of deadly force. Moreover, this is consistent with Supreme
Court precedent, which clearly supports the conclusion that Krahn was
deliberately indifferent. See City of Canton v. Harris, 489 U.S. 378,109 S.Ct.
1197, 103 L.Ed.2d 412 (1989):
      [Krahn] has armed [his] officers with firearms, in part to allow
      them to accomplish this task. Thus, the need to train officers in
      the constitutional limitations on the use of deadly force can be said
      to be so obvious, that failure to do so could properly be
      characterized as deliberate indifference to constitutional rights.

      Id. at 390 n.10 (internal marks and citation omitted). See also Brown,
219 F.3d at 459 (“Thus, when the city arms its officers to carry out this task,
there is thus the obvious need to train officers in the constitutional limitations
on the use of deadly force. This need for training is so obvious that the failure
to train is deliberate indifference to constitutional rights.”).
      The majority’s use of language indicating that the only instance in which
we have found a single incident sufficient included “an abundance of evidence
about the proclivities of the particular officer involved in the excessive use of
force” is of no import. While this court did include such an observation in Valle,
613 F.3d at 549, the majority’s use of it here is a misapprehension of what
occurred in Brown. In Brown, although this court did discuss the officer’s
“personal record of recklessness and questionable judgment,” we clearly
concluded, as set out above, that liability can attach for a single incident even
when there is no such pattern. Brown, 219 F.3d at 463. Furthermore, even if




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                                          No. 13-20022
evidence about the proclivities of the officer was required, evidence of such
exists here. 4
       During his deposition, Estrada was repeatedly unable to provide the
appropriate policy or procedure, specifically with regard to the Use of Force
Continuum and/or dealing with mentally ill persons. Estrada also did not
know whether he had ever had any field training dealing with mentally ill
persons. Estrada testified that it was appropriate to use deadly force wherever
he deemed it necessary. Further, Estrada testified that none of his supervisors
had ever indicated that he used excessive force in the shooting of Aaron Hobart,
he was never reprimanded, and nobody ever discussed the incident with him –
other than to have him see a doctor – or reviewed the levels of force and the
applicability for the use of each one.            However, Estrada did receive CIT
training after the shooting. 5 Estrada was also unable to explain the meaning
of things like “high-risk affair” and “exigent circumstances.” Estrada testified
that it was the policy and practice of the City of Stafford for him to enter the
scene by himself. He also testified that mentally ill people or drug addicts who



       4  Estrada’s training record indicates that, during field training in October, November
and December of 2007, he was repeatedly rated below the minimum acceptable rating in
common sense and judgment, officer safety, department policies and procedures, and
communications. He was also rated below the minimum acceptable rating for control of
conflict at least once. There was no evidence presented of any subsequent evaluations or
training.
        5 The Texas Commission on Law Enforcement Officer Standards and Education

(TCLEOSE) mandates that officers complete CIT training. The parties dispute whether
Estrada completed CIT training prior to the shooting of Aaron Hobart. Krahn testified that
TCLEOSE began mandating CIT training in 2005 or 2006 and that all officers were required
to have completed mandated training by August 2008. Krahn was responsible for the CIT
training. Any officer who did not receive CIT training in their original program was required
to take a special training program. Estrada did not take the special training, but testified
that he received CIT training through the basic police academy. However, Estrada’s training
record clearly states that he completed zero hours of CIT training. Thus, there is a question
of whether Estrada received any CIT training prior to Aaron’s shooting. There is also a
question as to the actual order in place at the time regarding dealing with mentally ill
persons.
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                                      No. 13-20022
are hallucinating are not treated any differently than regular people who are
being arrested.
      In his deposition, Krahn testified that he has had the authority to adopt
departmental policies and procedures for more than ten years. These policies
are contained in the “General Orders” or written guidelines of the department.
The SPD has a General Order regarding the handling of mentally ill persons,
but, as the district court found, it is not clear whether this is a final version of
that order because it is not the same version as found in the then-applicable
General Orders.
      Krahn was responsible for ensuring his officers received proper training.
Krahn was also the policymaker responsible for promulgating the General
Orders of the SPD. The record indicates that an internal investigation found
that Estrada’s conduct in using deadly force was within the guidelines of the
SPD. Estrada said that he was trained to shoot his gun if he began seeing
“stars” or “black.” Sergeant Dustin Claborn testified that officers, if going
unconscious, are indeed trained to fire until the threat is over, regardless of
their surroundings and regardless of whether the officer reasonably believes
his life is in danger. Claborn also testified that Estrada’s actions complied with
department policy.     Krahn likewise testified that Estrada complied with
department policy, which was promulgated by Krahn. Estrada was repeatedly
unable to provide the appropriate policy or procedure with regard to the use of
force. As discussed in Part I, Estrada has failed to establish that his use of
deadly force was reasonable.
      With regard to Krahn, the district court found summary judgment
inappropriate based on genuine issues of material fact. The district court
further found that Krahn was not entitled to qualified immunity because the
plaintiffs had provided evidence of a factual scenario under which no
reasonable officer in “Krahn’s circumstances would have believed it to be
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                                     No. 13-20022
lawful to fail to train police officers on the appropriate use of force.” Further,
“[i]t would be illogical to suggest that the deliberately indifferent failure to
train police officers about appropriate levels of force was not clearly established
at the same time, and the Court concludes that it was.” The district court also
found that a question of fact remained as to whether officers were properly
trained on the use of force. In light of these facts, the court opined that “a jury
could find that the need to train SPD officers in the constitutional limitations
on the use of force, and the use of deadly force in particular, was ‘so obvious’
that failure to do so could properly be characterized as ‘deliberate indifference’
to constitutional rights.”   The district court’s thorough and well-reasoned
orders are entirely supported by the record.             The separate majority
acknowledges that a factual question exists regarding the sufficiency of the
training of SPD officers with regard to the appropriate use of force, but then
finds the failure to train does not amount to deliberate indifference. I disagree.
      The majority concedes that the Hobarts have cited evidence of a “pattern
of failing to train.” The majority then concludes that the Hobarts put on no
evidence explaining the application of the single incident exception to their
claim for failure to train on the use of deadly force. However, the Hobarts
clearly did offer such evidence. And the district court clearly applied the single
incident exception, finding that the use of deadly force “was so obvious that
failure to do so could properly be characterized as deliberate indifference.”
(Internal marks omitted) (citing City of Canton, 489 U.S. at 390 n.10). As it is
undeniable that the use of deadly force is one of the “recurring situations
presenting an obvious potential for such a violation,” I would conclude that the
district court is correct. Bryan County, 520 U.S. at 409 (citing Canton, 489
U.S. at 390).
      Both Estrada and Krahn assert that Estrada’s use of deadly force was
reasonable pursuant to the training, or lack thereof, by Krahn and that he was
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                                      No. 13-20022
following the policy promulgated by Krahn. Estrada has failed to establish
that his use of deadly force was reasonable, and, thus, he is not entitled to
summary judgment on the basis of qualified immunity. It clearly follows that
Krahn would obviously be deliberately indifferent in not training Estrada in
the appropriate use of deadly force. See Bryan County, 520 U.S. at 409-410
(the “high degree of predictability” that failure to train on the use of deadly
force would violate citizens’ rights supports an inference of causation – that
the “indifference led directly to the very consequence that was so predictable.”).
      As Estrada has failed to establish that his use of deadly force was
reasonable, the evidence that Estrada was in compliance with department
policy promulgated by Krahn is sufficient to affirm the district court’s denial
of summary judgment on this issue. Moreover, because Krahn’s failure to train
on the use of deadly force establishes deliberate indifference, he is not entitled
to summary judgment on the basis of qualified immunity. However, based on
the record in its entirety, there are several factual disputes. Again, “if a factual
dispute must be resolved to make the qualified immunity determination, that
fact issue is material and we lack jurisdiction over the appeal.” Manis, 585
F.3d at 843. Thus, this court also lacks jurisdiction over Krahn’s appeal and I
would dismiss.




                                           25
