     Case: 16-10202      Document: 00513760176         Page: 1    Date Filed: 11/15/2016




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

                                                                               FILED
                                                                         November 15, 2016
                                      No. 16-10202
                                                                            Lyle W. Cayce
                                                                                 Clerk
DAVID BLAIR, individually and as next friend of D. O., a minor; CYNTHIA
OLIVER, individually and as next friend of D. O., a minor; D. O., a minor,

               Plaintiffs–Appellants,

v.

THE CITY OF DALLAS; JESSE AQUINO, individually and in his official
capacities as a Dallas police officer; RICHARD CANTU, individually and in
his official capacities as a Dallas police officer,

               Defendants–Appellees.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CV-1515


Before CLEMENT, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiffs filed suit under 42 U.S.C. § 1983, claiming that Officers Jesse
Aquino and Richard Cantu of the Dallas Police Department violated Plaintiffs’
Fourth Amendment rights by firing gunshots at David Blair. The district court
entered partial summary judgment in favor of the officers and later dismissed
Plaintiffs’ claims against the City of Dallas. We AFFIRM.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                               I. BACKGROUND
      On the evening of October 2, 2013, Aquino and Cantu were patrolling a
Dallas neighborhood, mainly looking for criminal activity related to
prostitution. The officers were shining a spotlight on the street and sidewalks
while driving through the area. Blair was outside his apartment complex
talking on his cell phone when the officers passed. When the officers shined
the spotlight on Blair, he told the officers to get the light out of his eyes. The
officers reversed the car and asked Blair to repeat what he had said. Blair
again told the officers to get the light out of his eyes.
      After this exchange, Blair went into his apartment. Blair’s girlfriend,
Cynthia Oliver, and their three-year-old son, D.O., were inside the apartment
as well. The officers did not attempt to communicate with Blair at all as he
went inside. Instead, the officers exited their patrol car, unholstered their
weapons, and approached the apartment complex. The front door of Blair’s
apartment faced the wall of a neighboring church. As the officers entered the
area between the apartment complex and the church, Blair opened the screen
door to his apartment and attempted to step outside. Blair was holding a
flashlight that had a handle resembling a pistol grip. The officers saw a bright
light. They then fired multiple shots at Blair. Blair closed the screen door and
was not hit by the officers’ gunfire, but Blair, Oliver, and D.O. contend that
they were fearful for their lives during the incident.
      Plaintiffs Blair, Oliver, and D.O. filed the present action in district court
under 42 U.S.C. § 1983, claiming that Aquino and Cantu violated their Fourth
Amendment rights by subjecting them to excessive force and wrongful
detention. Plaintiffs also brought § 1983 claims under Monell v. Department of
Social Services, 436 U.S. 658 (1978), arguing that the City of Dallas violated
Plaintiffs’ rights by failing to adequately train the officers and enacting policies
or tolerating customs within the Dallas Police Department with deliberate
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                                  No. 16-10202
indifference to how those policies and customs abridged Plaintiffs’
constitutional rights.
      In response, the officers filed a motion for partial summary judgment
based on qualified immunity. The district court concluded that the officers
were entitled to qualified immunity, granted partial summary judgment, and
dismissed Plaintiffs’ claims against the officers. The City of Dallas then moved
to dismiss Plaintiffs’ Monell claims, and the district court granted the motion
to dismiss based on its determination that the officers did not violate Plaintiffs’
constitutional rights. Plaintiffs now appeal.
                                II. DISCUSSION
      “We review a summary judgment de novo, ‘using the same standard as
that employed by the district court under Rule 56.’” Newman v. Guedry, 703
F.3d 757, 761 (5th Cir. 2012) (quoting Kerstetter v. Pac. Sci. Co., 210 F.3d 431,
435 (5th Cir. 2000)). Summary judgment is appropriate “if 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). “A dispute is
‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict
for the nonmoving party,” and a “fact issue is ‘material’ if its resolution could
affect the outcome of the action.” Ramirez v. Martinez, 716 F.3d 369, 374 (5th
Cir. 2013). “Because this case arises in a summary judgment posture, we view
the facts in the light most favorable to [Blair], the nonmoving party.” City &
Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1769 (2015). In other words, “[t]he
evidence of the nonmovant is to be believed, and all justifiable inferences are
to be drawn in his favor.” Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014) (per
curiam) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
      Under the doctrine of qualified immunity, public officials are immune
from suit under § 1983 unless their conduct “violate[s] clearly established
statutory or constitutional rights of which a reasonable person would have
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known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “In resolving questions
of qualified immunity at summary judgment, courts engage in a two-pronged
inquiry.” Tolan, 134 S. Ct. at 1865; see also Saucier v. Katz, 533 U.S. 194, 200
(2001). Under the first prong, a court decides “whether the facts that a plaintiff
has alleged . . . make out a violation of a constitutional right.” Pearson v.
Callahan, 555 U.S. 223, 232 (2009). Under the second prong, “the court must
decide whether the right at issue was ‘clearly established’ at the time of
defendant’s alleged misconduct.” Id. A “defendant cannot be said to have
violated a clearly established right unless the right’s contours were sufficiently
definite that any reasonable official in the defendant’s shoes would have
understood that he was violating it.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023
(2014). “We do not require a case directly on point, but existing precedent must
have placed the statutory or constitutional question beyond debate.” Ashcroft
v. al-Kidd, 563 U.S. 731, 741 (2011). “Courts have discretion to decide the order
in which to engage these two prongs.” Tolan, 134 S. Ct. at 1866.
A.    Excessive Force
      Plaintiffs first contend that factual disputes exist with regard to whether
the officers’ use of force against Blair was objectively reasonable. A claim of
excessive force in the course of a seizure or arrest is “properly analyzed under
the Fourth Amendment’s ‘objective reasonableness’ standard.” Scott v. Harris,
550 U.S. 372, 381 (2007) (quoting Graham v. Connor, 490 U.S. 386, 388 (1989)).
Thus, under the first prong of the qualified immunity analysis, the district
court was required to determine whether the facts Blair alleged made out “(1)
an injury that (2) resulted directly and only from the use of force that was
excessive to the need, and that (3) the force used was objectively unreasonable.”
Hogan v. Cunningham, 722 F.3d 725, 734 (5th Cir. 2013) (quoting Flores v.
City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004)). “The first step in assessing
the constitutionality of [the officers’] actions is to determine the relevant facts.”
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Scott, 550 U.S. at 378; see also Tolan, 134 S. Ct. at 1866. A “‘judge’s function’
at summary judgment is not ‘to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial.’” Tolan,
134 S. Ct. at 1866 (quoting Anderson, 477 U.S. at 249). Summary judgment is
appropriate only if there are no genuine disputes as to the material facts. Id.
“[O]nce we have determined the relevant set of facts and drawn all inferences
in favor of the nonmoving party to the extent supportable by the record, . . . the
reasonableness of [the officers’] actions . . . is a pure question of law.” Scott, 550
U.S. at 381 n.8.
      Although Blair notes that there are factual disputes in the record
regarding “Blair’s demeanor towards the officers” and “whether Blair pointed
the flashlight at the officers before they opened fire,” he goes on to state that
these factual disputes are “not relevant to the arguments presented in this
appeal.” Instead of arguing the district court disregarded these factual issues
or failed to view the evidence in the light most favorable to him, Blair confines
his appeal to the argument that the district court improperly disregarded an
expert affidavit. This contention alone is unavailing.
      The Supreme Court has made clear that “so long as ‘a reasonable officer
could have believed that his conduct was justified,’ a plaintiff cannot ‘avoi[d]
summary judgment by simply producing an expert’s report that an officer’s
conduct leading up to a deadly confrontation was imprudent, inappropriate, or
even reckless.’” Sheehan, 135 S. Ct. at 1777 (emphasis added) (quoting
Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002)); see also Bazan ex rel.
Bazan v. Hidalgo Cty., 246 F.3d 481, 493 (5th Cir. 2001) (“The excessive force
inquiry is confined to whether the [officer] was in danger at the moment of the
threat that resulted in the [officer’s use of force].”). The affidavit from William
P. Flynn, a former law enforcement officer and an instructor at a police
academy, primarily discusses whether the actions taken by the officers before
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                                     No. 16-10202
they fired their weapons were reasonable. With respect to the shooting itself,
the affidavit states that “during the actual shooting . . . both Officer Cantu’s
and Officer Aquino’s conduct against David Blair . . . was objectively
unreasonable, unconstitutional and contrary to recognized and practiced police
policies and procedures.” However, the affidavit does not explain why it may
have been unreasonable for the officers to believe they were in danger when
Blair opened his apartment door with flashlight in hand.
         Moreover, “[e]ven if an officer acts contrary to her training, . . . that does
not itself negate qualified immunity where it would otherwise be warranted.”
Sheehan, 135 S. Ct. at 1777. Flynn’s affidavit argues that the officers acted
contrary to recognized police policies and procedures, but that contention is not
enough by itself to create a material fact issue. Accordingly, we hold that Blair
has failed to demonstrate that there is a genuine dispute as to any material
fact.
B.       Wrongful Seizure
         Plaintiffs next contend that the district court erred in dismissing their
claims that Oliver and D.O. were wrongfully seized. They argue that Oliver
and D.O. were unable to leave the apartment when the officers fired the shots
and that this restriction on Oliver and D.O.’s freedom of movement constituted
an unreasonable seizure within the meaning of the Fourth Amendment. The
Supreme Court has explained that a seizure occurs for purposes of the Fourth
Amendment “only when there is a governmental termination of freedom of
movement through means intentionally applied.” Brower v. Cty. of Inyo, 489
U.S. 593, 596–97 (1989). “A seizure occurs even when an unintended person or
thing is the object of the detention or taking, but the detention or taking itself
must be willful” and not merely the consequence of “an unknowing act.” Id. at
596 (citations omitted). This is because “the Fourth Amendment addresses


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                                  No. 16-10202
‘misuse of power,’ not the accidental effects of otherwise lawful government
conduct.” Id. (quoting Byars v. United States, 273 U.S. 28, 33 (1927)).
      Applying these principles, other circuits have typically concluded that
“where the seizure is directed appropriately at the suspect but inadvertently
injures an innocent person, the innocent victim’s injury or death is not a
seizure that implicates the Fourth Amendment because the means of the
seizure were not deliberately applied to the victim.” Milstead v. Kibler, 243
F.3d 157, 163–64 (4th Cir. 2001), abrogated on other grounds by Pearson, 555
U.S. at 235; Childress v. City of Arapaho, 210 F.3d 1154, 1157 (10th Cir. 2000)
(holding that no seizure occurred when police officers shot at suspects and hit
hostages); Claybrook v. Birchwell, 199 F.3d 350, 354, 359 (6th Cir. 2000)
(holding that no seizure occurred when a stray bullet hit a bystander during a
police gunfight); Schaefer v. Goch, 153 F.3d 793, 796–97 (7th Cir. 1998)
(holding that no seizure occurred when a police officer shot at a suspect and hit
a hostage); Medeiros v. O’Connell, 150 F.3d 164, 169 (2d Cir. 1998) (same);
Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 795 (1st Cir. 1990) (same).
      In the instant case, there is no evidence that the officers knew Oliver and
D.O. were inside the apartment when they fired the shots. As a result, it
appears that the officers’ use of force was not deliberately applied to Oliver and
D.O. This Court has not yet weighed in on whether an officer’s use of force in
such a circumstance constitutes a seizure within the meaning of the Fourth
Amendment. Thus, under the second prong of the qualified immunity analysis,
it is apparent that any right that may have been violated was not clearly
established at the time of the officers’ alleged misconduct. We affirm the
district court’s grant of summary judgment dismissing the claim that Oliver
and D.O. were wrongfully seized.




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                                 No. 16-10202
C.    Monell Claims
      Finally, the parties agree that the district court’s dismissal of the Monell
claims against the City of Dallas should only be reversed if this Court holds
that the district court improperly granted summary judgment on any of the
claims discussed above. See City of L.A. v. Heller, 475 U.S. 796, 799 (1986)
(holding that there cannot be municipal liability under § 1983 absent an
underlying constitutional violation). Because Plaintiffs have failed to
demonstrate that the district court improperly granted summary judgment, we
affirm the district court’s dismissal of the Monell claims.
                              III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment and dismissal of Plaintiffs’ claims.




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