     Case: 13-50601      Document: 00512480185         Page: 1    Date Filed: 12/23/2013




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

                                    No. 13-50601                                  FILED
                                  Summary Calendar                        December 23, 2013
                                                                             Lyle W. Cayce
                                                                                  Clerk


BETTY KAY MELVIN,
as Administratrix of Estate of James Whitehead, Deceased,

                                                 Plaintiff–Appellant,

versus

WILLIAM KARMAN, Individually and Officially
as Employee of San Antonio, Texas Police Department;
CITY OF SAN ANTONIO,

                                                 Defendants–Appellees.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                 No. 5:11-CV-87




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50601
      Betty Melvin, as administratrix of the estate of James Whitehead, sued
under 42 U.S.C. § 1983, charging Officer William Karman with excessive force
and the City of San Antonio with negligent hiring and supervision of Karman;
Melvin also asserted a survival action against the city.
      A magistrate judge recommended that defendants’ motion for summary
judgment be granted and plaintiff’s motion for summary judgment be denied,
and the district court agreed. Because plaintiff cannot point to sufficient evi-
dence raising a genuine issue on whether excessive force was exerted, there is
no error, and we affirm.


                                        I.
      The facts are mostly undisputed. At the time of the incident, Whitehead
was on the ground and being attacked by three assailants. Karman was in the
area, drew his gun, approached the assailants, and announced his presence.
Two of the assailants fled; the third, Jesse Ramon, remained with a gun
pointed at Whitehead, who was still on the ground. Ramon approached Kar-
man, who repeatedly told Ramon to drop his weapon. Karman then shot five
bullets, four of which struck Ramon; three of those entered and exited Ramon’s
body. One bullet entered Whitehead’s body and killed him.
      Neither the complaint nor the brief on appeal makes clear what plain-
tiff’s theory precisely is. Plaintiff seems to think that, based on the location of
Whitehead’s body and its distance from Ramon, Karman intentionally shot and
killed Whitehead. To be sure, the complaint avoids saying that directly but
only alleges that “[o]ne of the bullets intentionally fired by Defendant Karman
traveled straight into the body of James Whitehead.” Further, “Karman inten-
tionally, recklessly and with conscious indifference to the rights of James
Whitehead pointed his gun directly at James Whitehead and fired one bullet
directly into the body of James Whitehead, causing serious bodily injury, pain
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                                  No. 13-50601
and death.” Finally, “Karman purposely, intentionally, recklessly and con-
sciously shot a bullet into James Whitehead’s body.”
      None of these statements alleges that Karman intended to shoot White-
head. All they say is that Karman intentionally shot a bullet―which no one
disputes―and that one of them hit Whitehead and killed him, also which no
one questions. The complaint does allege, however, that Whitehead “was not
in the direct line of fire with Ramon and was not directly behind Ramon at the
time when shots were fired.” Therefore, plaintiff seems to hope that a jury
could surmise that Karman shot with the purpose of hitting Whitehead,
thereby not only committing a crime but also using excessive force in violation
of the Fourth Amendment.
      The magistrate judge and district court found that (1) the city could not
be held liable because plaintiff has pointed to no evidence of a custom or policy
of using excessive force or failing to train its officers; (2) Karman could not be
held liable because he did not “seize” Whitehead within the meaning of the
Fourth Amendment, so there was no constitutional violation; and (3) in the
alternative, Karman was entitled to qualified immunity because even if he
intended to seize Whitehead, his use of force in the circumstances was not
unreasonable according to clearly established law at the time. The second
holding disposes of this case.
      Indeed, if we interpret the complaint charitably, the magistrate judge’s
qualified-immunity analysis may be incorrect. If Karman intentionally seized
Whitehead, then plaintiff’s claim is that Karman used excessive force against
Whitehead. One can hardly dispute that, if the sole target was Ramon, then
using deadly force was not unreasonable. Because plaintiff seems to claim,
however, that the excessive force was used against Whitehead—and surely the
force was excessive if Karman intended to shoot Whitehead, for that


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                                  No. 13-50601
presumably would be a crime—the ultimate question is whether Karman had
the purpose of shooting Whitehead.


                                        II.
      To defeat summary judgment, plaintiff must point to competent evidence
creating a genuine issue of material fact for trial. A mere scintilla of evidence
is not enough. Milton v. Tex. Dep’t of Criminal Justice, 707 F.3d 570, 572 (5th
Cir. 2013). In other words, plaintiff must point to some evidence that Karman
intended to shoot Whitehead. If Karman merely accidentally shot Whitehead,
then all of the claims fail because the use of force against Ramon in the circum-
stances would not have been unreasonable.
      Intent can be difficult to prove. Therefore, “the court must be vigilant to
draw every reasonable inference from the evidence in the record in a light most
flattering to the nonmoving party”; summary judgment may still be appropri-
ate, however, “[e]ven in cases where elusive concepts such as motive or intent
are at issue, . . . if the nonmoving party rests merely upon conclusory allega-
tions, improbable inferences, and unsupported speculation.” Int’l Shortstop,
Inc. v. Rally’s, Inc., 939 F.2d 1257, 1266 (5th Cir. 1991) (internal quotation
marks omitted).
      Plaintiff points to only one piece of evidence on summary judgment—the
location of Whitehead’s body in relation to Ramon’s. It seems that plaintiff
would like a jury to conclude that, based on the location of the body, Karman
intentionally shot Whitehead. That is the only snippet of summary-judgment
evidence plaintiff points to in the briefs and in the district court.
      In light of all the other evidence, however, the location of the body is
merely a scintilla of evidence that relies on extremely improbable inferences
and speculation. In the first place, common sense supports Karman. Abso-
lutely nothing in the record suggests that he, facing an armed assailant and
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                                 No. 13-50601
reasonably concerned for his own safety, took the time deliberately to direct
one of his bullets for the purpose of hitting Whitehead, who was on the ground
and an innocent victim of the assault the officer was attempting to end.
            Moreover, there were several witnesses, as well as further evi-
dence regarding the whereabouts of all the bullets, all of which corroborate
Karman’s common-sense version of events.         All five witnesses state that
Ramon was coming at Karman with a gun, that Karman ordered him to drop
his gun, and that Karman fired five shots in the direction of Ramon (though
not all the witnesses saw all five shots). Certainly, no witness claims that Kar-
man fired a shot not in Ramon’s direction. Finally, at least three bullets
entered and exited Ramon’s body, and there is no competent evidence suggest-
ing that the fifth “stray” bullet is the one that hit Whitehead.
      In short, there is no genuine issue for trial. The facts are unfortunate
but not the stuff of a civil-rights suit. Karman tried to help the deceased, who
was being assaulted by three individuals. Karman’s life was in danger as one
of the assailants approached him with a gun. Karman’s use of force in the
situation was not unreasonable. Because there was no constitutional violation,
that is also sufficient to dispose of the claim against the city. The summary
judgment is AFFIRMED.




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