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

                                                                            FILED
                                                                            May 8, 2008

                                     No. 07-20634                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


AMANULLAH KHAN; DANISH SHAKIR; OMER KAMAL; HEATH
RICHARD

                                                  Plaintiffs - Appellants
v.

HOUSTON NFL HOLDINGS LP; CITY OF HOUSTON; RONALD J BORZA;
ANTHONY D CARROLL; GERARDO GUTIERREZ

                                                  Defendants - Appellees



                   Appeal from the United States District Court
               for the Southern District of Texas, Houston Division
                             Case No. 4:05-CV-2995


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Four individuals brought suit against multiple defendants for injuries they
suffered in an altercation with security guards during an event at a football
stadium. Summary judgment was granted to the event sponsors on the basis
that the off-duty city police officers who provided security had not been
negligently hired. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   No. 07-20634

      The plaintiffs who were allegedly injured by security guards are
Amanullah Khan, Danish Shakir, Omer Kamal, and Heath Richard. They
attended an event on the third-floor, club level of Reliant Stadium in Houston,
Texas, on October 29, 2004. The “Halloween Bash” which they attended was an
event sponsored by Houston NFL Holdings LP (“HNH”), the owner of the
Houston Texans franchise of the National Football League. Evidence introduced
at summary judgment indicated that the initial confrontation between some of
these plaintiffs and security guards occurred inside the stadium. The plaintiffs
were escorted out of the stadium by several guards. There was evidence that at
least some of the plaintiffs were intoxicated, that they made threats and used
rather profane language. A physical struggle occurred when arrests were made
outside the stadium. The plaintiffs presented a different evidentiary picture,
namely, that the guards used excessive force and assaulted the plaintiffs, then
fabricated charges against them.
      We are not concerned on this appeal with what happened on the night of
the Halloween party. Our issue is whether the defendant HNH negligently
hired the security guards prior to the event. The plaintiffs argue that HNH
should have discovered internal police personnel files on the officers, which
would have put HNH on notice that one officer had numerous complaints filed
against him. The relevant incidents the plaintiffs highlight in the internal
complaints were all found to be “not sustained,” a designation indicating
insufficient evidence to support either disciplinary action or exoneration.
      Access to personnel files is restricted; files cannot be released if the charge
does not result in disciplinary action. Tex. Loc. Gov’t. Code § 143.089 (governing
personnel files), § 143.1214 (governing records relating to disciplinary actions or
charges of misconduct). Plaintiffs argue that the officers could have been
required to provide these restricted files as a condition of being hired. Perhaps



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that is so, but the issue is whether HNH’s failure to make that demand created
a fact question about negligence.
      The parties are in agreement that many of the issues regarding HNH’s
possible negligence were resolved by the Texas Supreme Court in a similar case.
Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788 (Tex. 2006). Among other points, the
Texas court determined that security work does not create a nondelegable duty
on the part of the business owner, and an independent contractor may be
employed to perform that work. Id. at 795-96. The one relevant basis on which
HNH might be shown to have liability is if it had been negligent in hiring and
retaining these guards. Before liability may be imposed, the employer must
have failed “to investigate, screen, or supervise” the guards and that failure
must have proximately caused the injuries. Id. at 796.
      What the court in Fifth Club found would support negligent hiring is if
something in the guard’s background put the employer on notice that the officer
constituted a risk of harm to the public. Id. at 797. A certified peace officer was
by definition “fit for this type of work,” and absent conflicting evidence of
unfitness, hiring of such an officer was non-negligent. A fact issue on negligent
hiring was not created by evidence that an officer had violated a police rule that
would have prohibited his working at the club, and had been reprimanded for
use of profanity. Id. at 796-97. Neither of those shortcomings indicated the
officer was a risk to patrons of the club.
      We turn to the summary judgment evidence that was offered here. That
evidence revealed that the three officers were hired because of their law
enforcement training. Each was in good standing with the Houston Police
Department. The evidence asserted by the plaintiffs to create a dispute of
material fact is that one of the officers had violated regulations by missing a
court appearance, using a bathroom in a strip club while in uniform, and having
a verbal confrontation with another officer. He also had been at fault in causing

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an automobile accident in which a child was killed. Those specific events are
similar to those which in Fifth Club were found not to be relevant to whether the
officer would be a risk to the public. We note that an officer’s fault in an
automobile accident would not be evidence of a risk of using excessive force.
      A different category of evidence concerns four complaints that members
of the public filed against the same officer for misconduct or excessive force.
Each of the complaints arose when the officer was off-duty, apparently working
in a job similar to the security duties he had at the Halloween party. Each of the
complaints was investigated. Each time, the investigation found insufficient
evidence and concluded the complaints were “not sustained.” The officer was
neither exonerated nor condemned.
      The district court found this evidence to be insufficient to create a dispute
of material fact regarding negligence in hiring. Even had HNH known of these
incidents, the court concluded it was not negligent to hire a trained policeman
who was then employed by and in good standing with the Houston Police
Department.    Disciplinary records even if obtained would have shown no
confirmed allegations of excessive force. The court also held that there was no
evidence presented of an industry practice that an employer would seek
confidential disciplinary histories of policemen they were considering hiring for
off-duty work. Such a practice might have created a standard against which to
judge HNH’s failure to obtain the records.
      We conclude that the district court properly analyzed Texas law and that
there was no evidence to make a dispute of material fact concerning negligent
hiring. We AFFIRM.




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