     Case: 14-50161      Document: 00512876994         Page: 1    Date Filed: 12/19/2014




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

                                                                                FILED
                                    No. 14-50161                        December 19, 2014
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
EARL THOMAS, Individually and as Representative of the Estate of Danny
Thomas; BRIDGITT THOMAS, Individually and as Representative of the
Estate of Danny Thomas,

              Plaintiffs - Appellants

v.

BRYAN BALDWIN, Individually,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 5:12-CV-33


Before HIGGINBOTHAM, JONES and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:*
       This is an action filed under 42 U.S.C. § 1983 alleging that police officer
Bryan Baldwin used excessive force in the shooting death of Danny Thomas.
Appellants appeal the district court’s final judgment granting Baldwin’s
motion for summary judgment. For the following reasons, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                        FACTS AND PROCEEDINGS
      On February 3, 2010, Detective Bryan Baldwin received information
from an ATF agent that an individual named Brian McGriff was in possession
of stolen guns and property, and was possibly involved in methamphetamine
production. Based on this information, Baldwin and his partner, Detective
Eddie Gonzales, obtained a search warrant to search for the stolen firearms at
McGriff’s supposed residence—an apartment at 3903 Barrington, # 1416 in
San Antonio, Texas. On February 4, 2010, police officers, including Baldwin,
executed the search warrant.       The officers breached the door, identified
themselves as police, shouted that they had a warrant, and entered the
apartment with guns drawn.        Baldwin entered the apartment’s bedroom,
identifying himself as a police officer. In the bedroom, Baldwin found Thomas
and another individual later identified as Larry Miller. Baldwin alerted his
partners to the two men’s presence. Baldwin ordered the two men to get on
the ground and show their hands. Miller immediately complied by lying on a
mattress on the bedroom floor. Thomas was farther away from Baldwin and
slowly got to his knees but did not lie down on the ground. Baldwin continued
to order Thomas to get to the ground. Baldwin then briefly turned away from
Thomas to call for additional police assistance. When Baldwin turned back
toward Thomas, Thomas was quickly rising from the mattress on the floor.
Thomas’s left hand was clenched and he moved his right hand toward the left
hand. At this point, Baldwin shot Thomas one time, after which Thomas
jumped out of a window. Thomas was found outside about twenty yards from
the residence. Police later found a knife in the room, near the bedroom door
where Baldwin was standing.
      Thomas died from the single gunshot wound to his left lateral abdomen,
according to an autopsy. The bullet entered Thomas’s side and its path was
“slightly back to front, left to right, and upward.”
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       The operative complaint is appellants’ Second Amended Complaint, filed
in August 2013. 1 Appellants asserted claims against Baldwin under 42 U.S.C.
§ 1983 alleging excessive force, and under Texas state law for assault. 2 The
district court granted summary judgment to Baldwin, finding that Baldwin
was entitled to qualified immunity because his conduct was objectively
reasonable under clearly established law at the time of the shooting.
Appellants timely appealed.
                                     DISCUSSION
 I.    Standard of Review
       This court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the district court. Rogers v. Bromac Title
Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014).               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 genuine issue of material fact exists if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether
a fact issue exists, courts must view the facts and draw reasonable inferences
in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S.
372, 378 (2007). This court “resolve[s] factual controversies in favor of the
nonmoving party, but only where there is an actual controversy, that is, when
both parties have submitted evidence of contradictory facts.” Antoine v. First
Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013) (internal quotation marks and



       1 The original and First Amended complaints named as defendants Officer David
Berrigan and the City of San Antonio. Appellants voluntarily dismissed claims against the
other defendants, leaving only claims against Baldwin.
       2 The district court granted summary judgment to Baldwin on the Texas state law

claims. Since Baldwin fails to challenge or brief this aspect of the ruling on appeal, these
claims are abandoned. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
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citation omitted). “[T]he nonmoving party cannot defeat summary judgment
with conclusory allegations, unsubstantiated assertions, or only a scintilla of
evidence. ” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (internal
quotation marks and citation omitted). Since Baldwin has pled the affirmative
defense of qualified immunity, the usual summary judgment burden shifts to
appellants to show that the defense is not available. Kovacic v. Villarreal, 628
F.3d 209, 211 (5th Cir. 2010). “We may affirm summary judgment on any basis
raised below and supported by the record.”           QBE Ins. Corp. v. Brown &
Mitchell, Inc., 591 F.3d 439, 443 (5th Cir. 2009).
II.    Qualified Immunity
       Qualified immunity protects government officials “from liability for civil
damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).            To determine whether
qualified immunity applies, the court conducts the two-part analysis set forth
in Saucier v. Katz, 533 U.S. 194 (2001), as modified by Pearson v. Callahan,
555 U.S. 223 (2009). To defeat summary judgment, appellants must show
genuine disputes of material fact about whether 1) Baldwin violated Thomas’s
Fourth Amendment constitutional right against excessive force; and 2)
whether his actions were objectively unreasonable in the light of clearly
established law at the time of the conduct. Poole v. City of Shreveport, 691 F.3d
624, 627 (5th Cir. 2012).     We may address these prongs in either order.
Pearson, 555 U.S. at 236. Because appellants fail to show a genuine dispute of
material fact about whether Baldwin’s actions were unreasonable, we affirm
the grant of summary judgment in his favor.
          a. Objective Reasonableness
       To win on his excessive force claim, Baldwin must show “(1) an injury,
(2) which resulted directly and only from the use of force that was clearly
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                                  No. 14-50161
excessive, and (3) the excessiveness of which was clearly unreasonable.” Manis
v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) (internal quotation marks and
citation omitted).   If he cannot show these elements, qualified immunity
applies.   An officer’s use of deadly force is not excessive if “the officer
reasonably believes that the suspect poses a threat of serious harm to the
officer or to others.” Id. Whether force was reasonable is an objective inquiry.
See Graham v. Connor, 490 U.S. 386, 397 (1989). Appellants must show that
the use of deadly force was objectively unreasonable “in light of the facts and
circumstances confronting” the officer. Ontiveros v. City of Rosenberg, Tex.,
564 F.3d 379, 382 (5th Cir. 2009) (internal quotation marks and citation
omitted). In determining whether an officer’s use of force was objectively
reasonable, courts must be mindful that police officers are often required to
make split-second judgments “in circumstances that are tense, uncertain, and
rapidly evolving” and must evaluate an officer’s use of force “from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Graham, 490 U.S. at 396–97.
      Here, the evidence shows that Baldwin’s use of deadly force was
objectively reasonable as a matter of law. Under this circuit’s caselaw, the
undisputed facts show that Baldwin reasonably believed that Thomas posed a
significant threat of death or bodily injury. See Manis, 585 F.3d at 843. This
court has found a police officer’s use of deadly force to be objectively reasonable
in similar factual situations—when the subject does not comply with an
officer’s orders and reaches for something out of the officer’s sight. In Manis,
this court found a police officer’s actions objectively reasonable when he shot a
man after approaching the man’s vehicle, instructing him multiple times to
show his hands, and the man reached under the front seat as if he had
retrieved an object. Id. at 844. In Reese v. Anderson, this court upheld the use
of deadly force, finding that a police officer reasonably believed a suspect was
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                                  No. 14-50161
reaching for a gun when he moved his hands out of the officer’s sight in defiance
of the officer’s orders. 926 F.2d 494, 496 (5th Cir. 1991). The officer was
reasonable in believing that the suspect posed an immediate threat to the
officer’s safety even though the suspect was in a vehicle that was “totally
surrounded” by officers. Id. at 501. In Ontiveros, police executed a warrant on
an individual suspected of possessing a weapon. 564 F.3d at 381. In defiance
of a police officer’s repeated orders to show his hands, the suspect reached into
a boot for what the officer believed could be a weapon. Id. This court upheld
the officer’s use of deadly force as reasonable under the circumstances. Id. at
385.
        Detective Baldwin’s account—the only full account of the events leading
up to the use of deadly force—shows that the use of deadly force was objectively
reasonable. Baldwin and his team were executing a search warrant to locate
stolen firearms. Owing to the dangerousness of the situation, they entered the
property with guns drawn. Upon entering the apartment, and again as he
entered the bedroom where Thomas was located, Baldwin identified himself as
a police officer and yelled multiple times for Thomas and Miller to get on the
ground. Only Miller complied. Thomas did not immediately get to the ground;
instead, he fell to his knees and looked around as if he was searching for
something.     Baldwin turned away from Thomas for a moment, then saw
Thomas moving quickly back up with one hand clenched as if he were holding
a gun or a knife. Thomas then brought his hands together in a threatening
manner, at which point Baldwin shot him.
        Like in Manis, Reese, and Ontiveros, Baldwin entered what he
reasonably believed to be a dangerous situation, Thomas defied the officer’s
repeated commands, and Thomas reached for something that the officer
believed to be a weapon. Under our circuit’s law, Baldwin’s uncontroverted


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account shows that he reasonably believed that Thomas posed a significant
and immediate threat of death or bodily injury. See Manis, 585 F.3d at 843.
      Appellants raise several arguments but none creates a genuine issue of
material fact about the reasonableness of Baldwin’s use of deadly force. First,
they suggest that Baldwin’s account is inherently suspicious because he is the
defendant. Baldwin is the only witness who has presented a full account
regarding the events immediately surrounding the shooting. The fact that the
defendant’s account is the only full account does not cast doubt on its veracity
absent other evidence that contradicts or undermines his account.            See
Ontiveros, 564 F.3d at 383 (upholding officer’s actions as reasonable when
officer was the only witness to the shooting). Further, this is not the situation
where the only other potential witness to challenge the officer’s statements is
deceased. See Reese, 926 F.2d at 499 (finding no explanation for the plaintiff’s
failure to produce summary judgment evidence when others were present in
the decedent’s vehicle at the time of the shooting). Miller was present in the
bedroom at the time of the shooting, but appellants have not produced any
affidavit from Miller that casts doubt on Baldwin’s account of the events.
      Here, in fact, the affidavits of others at the scene largely corroborate
Baldwin’s account, including the key facts that Thomas disobeyed Baldwin’s
commands and that Thomas was reaching for something before he was shot.
Officers David Berrigan and Mark Harris both heard Baldwin command the
individuals in the bedroom to show their hands. Harris saw that Thomas did
not comply with Baldwin’s commands and was instead standing up. Harris
further corroborates Baldwin’s statement that Thomas reached down for
something. Officers Berrigan and Harris both heard a single shot, followed by
the sound of breaking glass. Appellants present one affidavit—from Thomas’s
girlfriend, Michelle Archer—who was in the living room during the incident.
Archer does not comment about the events in the bedroom, but to the extent
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her statement is relevant, it also corroborates Baldwin’s account. According to
Archer, officers identified themselves as police officers executing a search
warrant and yelled “get on the ground.” Archer also heard a “loud bang” and
she thought Thomas “broke through the window.”                 Archer therefore
corroborates that Baldwin ordered the occupants of the apartment to get on
the ground and does not dispute Thomas’s failure to comply with those orders.
Baldwin’s account—as corroborated by the statements of other officers and
Archer— is therefore reasonable.
      Second, appellants argue that deadly force was unreasonable because
Thomas was fleeing at the time he was shot and thus did not pose an
immediate threat to Baldwin or the other officers.          “[A]bsent any other
justification for the use of force, it is unreasonable for a police officer to use
deadly force against a fleeing felon who does not pose a sufficient threat of
harm to the officer or others.” Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 417 (5th
Cir. 2009). Here, however, there are no material facts to support appellants’
bare assertion that Thomas was fleeing at the time he was shot. Appellants
attempt to rely on Thomas’s autopsy report to show that, contrary to Baldwin’s
statement, Thomas was not facing Baldwin at the time he was shot. The
autopsy, however, is consistent with Baldwin’s account. The report indicates
that Thomas was shot in the side—not the back—and that the bullet traveled
“slightly back to front, left to right, and upward.” The medical evidence here
is different from the evidence that led this court to find a serious question as
to the officer’s reasonableness in Baker v. Putnal, 75 F.3d 190, 198 (5th Cir.
1996). In Baker, the decedent was shot four times, including once in the back.
Id. The number of shots combined with the fact that the decedent was shot in
the back created “more of a question of fact than a court may dispose of on
summary judgment.” Id. Here, Thomas was shot once and not in the back.
Therefore, the site of entrance of the bullet and its path do not raise a genuine
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issue of material fact as to whether Thomas was fleeing at the time of the
shooting.
      Third, appellants attempt to raise a genuine issue of material fact by
showing that the knife that was later found in the bedroom was found across
the room from where Thomas was standing. Contrary to appellants’ argument,
the fact that no weapon was found in Thomas’s vicinity does not contradict
Baldwin’s account that Thomas was on his knees and had his hand clenched.
This court has been clear that whether the decedent actually possessed a
weapon is irrelevant so long as the police officer reasonably believed he
possessed a weapon. See Reese, 926 F.2d at 501 (“Also irrelevant is the fact
that [decedent] was actually unarmed.”); Manis, 585 F.3d at 845.        Again,
appellants attempt to analogize to Baker. In Baker, in addition to the medical
evidence, the plaintiffs presented the sworn testimony of three witnesses who
stated that the decedent took no threatening action toward the police officer.
Baker, 75 F.3d at 198. Here, appellants do not produce any affidavits or other
evidence to challenge Baldwin’s statement that Thomas disobeyed his orders,
reached for something, and clenched his hand as if he were holding a weapon;
the fact that no knife was found near Thomas is not evidence to the contrary.
Conversely, officers Baldwin, Harris, and Berrigan, as well as Thomas’s
girlfriend, Archer, stated that the officers repeatedly commanded Thomas to
get on the ground and show his hands. Baldwin and Harris both stated that
Thomas disregarded these orders. In sum, appellants have not presented
evidence to create a genuine issue of any material fact about the
reasonableness of Baldwin’s use of force.
                               CONCLUSION
      For the foregoing reasons, we find that Baldwin was entitled to qualified
immunity from appellants’ § 1983 excessive force claim and AFFIRM the
district court’s grant of summary judgment.
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