     Case: 19-11284   Document: 00515483666     Page: 1   Date Filed: 07/09/2020




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

                                                                    FILED
                                No. 19-11284                       July 9, 2020
                              Summary Calendar                    Lyle W. Cayce
                                                                       Clerk



ALICIA BRYANT, in Her Capacity as the Personal Representative of the
Estate of Jonathan Bryant,

             Plaintiff - Appellant

v.

DANNY GILLEM,

             Defendant – Appellee




                Appeal from the United States District Court
                     for the Northern District of Texas


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      The personal representative of the estate of the original plaintiff, who is
now deceased for reasons unrelated to this incident, brought suit against the
law enforcement officer whose shooting of the plaintiff during an arrest was,
according to the evidence in this record, accidental. The district court granted
summary judgment based on a defense of qualified immunity. We AFFIRM.
    Case: 19-11284    Document: 00515483666      Page: 2   Date Filed: 07/09/2020



                                 No. 19-11284
              FACTUAL AND PROCEDURAL BACKGROUND
      On August 24, 2016, a district attorney investigator, Mike Chapman,
determined from radar that a Ford Explorer was being driven at 45 m.p.h. in
a 35-m.p.h. zone on U.S. Highway 287 in Childress, Texas. Plaintiff-decedent
Jonathan Bryant was the driver, and he had a passenger. Chapman activated
his patrol car’s emergency lighting to initiate a traffic stop, but Bryant
accelerated. Chapman pursued, notifying the Childress County Sheriff’s Office
and requesting assistance. Chief Deputy Sheriff Danny Gillem of the Childress
County Sheriff’s Office responded to Chapman’s request and joined the chase.
      Chapman’s dash camera recorded the chase and the subsequent arrest.
The high-speed chase lasted approximately 14 minutes.             At one point,
Chapman estimated Bryant was traveling at over 115 m.p.h. The video depicts
events of Bryant’s swerving in and out of traffic. His recklessness caused other
motorists to swerve and some to drive off the road. Chapman considered this
driving to be so dangerous to the public that he used his Glock pistol to fire
into Bryant’s vehicle four different times, with approximately 19 rounds
discharged. After the fourth time, Bryant slammed on his brakes and began
driving off the right side of the highway. Chapman rammed into the rear of
Bryant’s vehicle, forcing it off the road into knee-high grass.
      Bryant and a passenger exited the vehicle with their hands raised and
then laid on the ground in compliance with the officers’ commands to do so.
Chapman appeared on video holding his pistol in both hands, and he walked
to the passenger side of the vehicle to secure the passenger. Another officer
also had his firearm drawn.
      At one point in the video, Deputy Gillem walks into view of Chapman’s
dash camera. As he approached Bryant, who was still on the ground in the
grass, Gillem held his pistol with both hands and pointed it at Bryant. Bryant
immediately put both hands in the air, then placed them on his back. Gillem
                                        2
    Case: 19-11284     Document: 00515483666     Page: 3   Date Filed: 07/09/2020



                                 No. 19-11284
then put his pistol into his left hand, knelt alongside Bryant, and drove his
right knee into Bryant’s back. Still holding the firearm with his left hand and
reaching with his right for Bryant’s hands, Gillem fired his pistol into Bryant’s
left shoulder — accidentally, Gillem claims. Only five seconds elapsed from
Gillem’s coming into the view of the camera and the shooting.
         After shooting Bryant, Gillem immediately holstered the weapon and
requested medical assistance. At this point in Gillem’s dash-camera video,
Gillem yelled, “Hey, get me an ambulance! He’s shot. I shot him. Get an
ambulance. Shot him in the arm. Get an ambulance.” Gillem also made
statements such as, “I’m not going to let you die,” and “I messed up. I messed
up. I had him on the ground, and I went and got his arm, and as soon as I did,
‘pow!”
         Later that day, Texas Ranger Ricky Brown began a criminal
investigation of the shooting.        Brown’s written report included written
statements by Gillem and Chapman, as well as written summaries of radio
transmissions and video footage of the incident. Chapman stated that after he
heard the gunshot, he went to Gillem, who said “he accidentally shot [Bryant]
while he was attempting to arrest him.”        Gillem also stated that after “I
grabbed his arm and moved it behind his back I discharged my firearm which
was in my left hand and struck the violator in the left shoulder area.” Brown
closed the investigation after a grand jury failed to indict Gillem.
         Brown and Gillem were both deposed. On direct examination, Brown
testified he believed Gillem’s pulling the trigger was reflexive and accidental.
On cross examination, Brown acknowledged that Gillem did not follow his
training to holster his gun before attempting to secure a suspect and did not
follow his training to keep his finger away from the trigger when there was no
intention to discharge the firearm.


                                         3
    Case: 19-11284    Document: 00515483666     Page: 4   Date Filed: 07/09/2020



                                 No. 19-11284
      According to Gillem’s deposition testimony, Gillem: (1) could not see
Bryant’s hands when Gillem first approached because Bryant was lying in tall
grass; (2) thought he had holstered his gun before attempting to secure Bryant;
(3) did not intend to fire his weapon; and (4) accidentally shot Bryant. Gillem
acknowledged having received training about holstering his weapon and
trigger safety. He admitted to making a mistake.
      Gillem signed a declaration stating, “I did not intend to discharge my
weapon at any time and did not even realize I was holding the gun in my left
hand as I kneeled down and accidentally discharged the gun.”            Another
declaration was submitted in which Margo Frasier, the former Sheriff of Travis
County, Texas, stated her opinion as a putative expert that Gillem’s actions
were objectively reasonable.
      Bryant brought suit under 42 U.S.C. § 1983 against Gillem and other
now-dismissed parties, alleging a violation of his Fourth Amendment rights.
On August 2, 2018, Bryant was murdered in Orlando, Florida. On November
13, the district court allowed substitution of Alicia Bryant, in her capacity as
the personal representative of the estate of Jonathan Bryant. See FED R. CIV.
P. 25. We will refer to the substituted representative also just as Bryant. The
operative complaint brought one claim against only Gillem for violation of the
Fourth Amendment.
      Gillem moved for summary judgment based on a defense of qualified
immunity. The district court granted the motion and dismissed the case with
prejudice. Bryant timely appealed.


                                DISCUSSION
      “We review a grant of summary judgment de novo, viewing all evidence
in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor.” Kariuki v. Tarango, 709 F.3d 495, 501 (5th
                                       4
     Case: 19-11284   Document: 00515483666     Page: 5   Date Filed: 07/09/2020



                                 No. 19-11284
Cir. 2013). Summary judgment is appropriate where “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 grant of qualified
immunity is also reviewed de novo. Bishop v. Arcuri, 674 F.3d 456, 460 (5th
Cir. 2012).
      Bryant presents two claims of error. The first is that certain opinion
evidence should not have been admitted or considered as to why Gillem might
have accidentally fired his weapon. Secondly, Bryant claims that the district
court committed legal error in the manner in which it analyzed qualified
immunity. We address these arguments in that order.


I.    Admissibility of opinion evidence that the shooting was accidental
      We start with the opinion evidence. Bryant argues the district court
erred in relying on Texas Ranger Brown’s opinion that Gillem unintentionally
shot Bryant. Specifically, Bryant says no record evidence supports Brown’s
opinion about Gillem’s mental state or that an uncontrollable reflex would
have physically caused Gillem to pull the trigger accidentally. Bryant also
contends the district court mischaracterized Brown’s investigation, though the
point is only that the court erroneously referred to interviews with Chapman
and Gillem instead of accurately referring to written statements.
      We emphasize the significance of intent. Unless the evidence supports
that a defendant acted willfully when violating someone’s federal rights, there
is no liability under Section 1983. Gorman v. Sharp, 892 F.3d 172, 174 (5th
Cir. 2018). As to the opinion evidence in this case, the district court held that
Bryant’s objection was in part moot inasmuch as the court was not relying on
the witness’s explanation of what might have caused Gillem to fire his weapon
accidentally. The district court did, though, consider Brown’s opinion that the
shooting was an accident. The court found Brown to be qualified to give that
                                       5
      Case: 19-11284     Document: 00515483666   Page: 6   Date Filed: 07/09/2020



                                  No. 19-11284
opinion based on his experience investigating police shootings. There was no
error in that finding.


II.    Qualified immunity
       Qualified    immunity    protects    “government    officials   performing
discretionary functions . . . 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).       Once a defendant raises the defense of qualified
immunity, the plaintiff bears the burden of showing the defense does not apply.
Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). The plaintiff must show:
“(1) that the official violated a statutory or constitutional right, and (2) that
the right was clearly established at the time of the challenged conduct.”
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quotation marks omitted).
       We first consider whether Gillem violated Bryant’s Fourth Amendment
rights. Bryant argues the district court erred in basing its ruling on Gillem’s
intentions at the moment the firearm discharged rather than on the
reasonableness of Gillem’s conduct immediately prior to that time. Bryant also
claims there is a material fact dispute as to whether Gillem’s shooting of
Bryant was accidental, which makes the grant of summary judgment
reversible error.
       The district court found that Bryant “failed to present any competent
summary judgment evidence reasonably showing that Gillem’s failure to
holster his firearm and his discharge of the firearm were intentional acts.” We
highlight that there are two events in that finding that there was no intent,
one being the failure to holster the weapon and the other being the pulling of
the trigger. We will return to those distinct events later. The district court
considered Chapman’s dash-camera video, Brown’s and Frasier’s opinions,
                                        6
    Case: 19-11284     Document: 00515483666         Page: 7   Date Filed: 07/09/2020



                                     No. 19-11284
Gillem’s declarations and deposition testimony, and Chapman’s written
statements in the investigation report.         The court determined “that a
reasonable jury could only find on this record that Gillem did not intend to
keep his firearm drawn when attempting to handcuff Bryant, and did not
intend to discharge his firearm.”
      We earlier mentioned and now reiterate that “a Fourth Amendment
seizure does not occur whenever there is a governmentally caused termination
of an individual’s freedom of movement . . . but only when there is a
governmental     termination    of    freedom   of    movement      through    means
intentionally applied.” Brower v. Cnty. of Inyo, 489 U.S. 593, 596–97 (1989).
      There is no evidence that Gillem intended to shoot Bryant, and indeed,
there is overwhelming evidence that he did not. Bryant argues otherwise, but
we reject the argument based on this record. What needs further attention,
though, is the effect of the evidence about Gillem’s failure to holster his firearm
as he was attempting to handcuff Bryant. Bryant contends that if Gillem acted
unreasonably prior to the accidental shooting by intentionally failing to holster
his weapon, that intentional act can be the basis for liability under Section
1983. A nonprecedential opinion of this court dealt with that factual situation,
stating that even if an officer’s shooting of a suspect is accidental, there may
be a constitutional violation if the officer “acted objectively unreasonably by
deciding to make an arrest, by drawing his pistol, or by not holstering it before
attempting to handcuff” the suspect. Watson v. Bryant, 532 F. App’x 453, 457–
58 (5th Cir. 2013). In that opinion, the court was addressing a situation in
which the officer intentionally kept his weapon in one hand while handcuffing
with the other despite his training not to do so, because of concerns the suspect
had his own weapon. Id. at 455. No such concerns are involved here.
      The district court here found no “competent summary judgment evidence
reasonably showing that Gillem’s failure to holster his firearm and his
                                          7
    Case: 19-11284    Document: 00515483666     Page: 8    Date Filed: 07/09/2020



                                 No. 19-11284
discharge of the firearm were intentional acts.” We look to the validity of that
finding. There is not much in the record directly relevant to Bryant’s possible
intent to keep his weapon drawn. We conclude the district court properly
summarized what is in the record:
      After Gillem shot Bryant, he immediately pointed the pistol away
      from him. Gillem subsequently holstered the pistol on the right
      side of his hip and requested assistance. . . . At deposition, Gillem
      stated that he thought he had holstered his gun prior to
      attempting to secure Bryant, that he did not intend to pull the
      trigger of his firearm, and that he accidentally shot Bryant.
      Consistent with his deposition testimony, Gillem subsequently
      filed a declaration in which he declared that “[t]he discharge was
      purely an accident,” that “[he] did not intend to discharge [his]
      weapon at any time,” and that “[he] did not even realize [he] was
      holding the gun in [his] left hand as [he] kneeled down and
      accidentally discharged the gun.”
      Taking this to be the entirety of the relevant evidence, as we must on
summary judgment, Topalian v. Ehrman, 954 F.2d 1125, 1131 n.10 (5th Cir.
1992), we conclude that there is no fact dispute that Gillem unintentionally
kept his firearm in his hand as he sought to restrain Bryant. Any finding by
jurors to the contrary would only be “unsupported speculation.” Brown v. City
of Houston, 337 F.3d 539, 541 (5th Cir. 2003). Because Bryant has failed to
show a violation of any Fourth Amendment rights, we need not consider the
second qualified-immunity prong.
      AFFIRMED.




                                       8
