     Case: 17-10083    Document: 00514439585     Page: 1   Date Filed: 04/20/2018




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

                                                                        FILED
                                                                      April 20, 2018
                                  No. 17-10083
                                                                     Lyle W. Cayce
                                                                          Clerk
MARTHA ANJELICA ROMERO, Individually and as Representative of
Ruben Garcia-Villalpando, Deceased; EDUARDO GARCIA; KEILA GARCIA;
ABDIEL GARCIA, Minor; MARIA ESTELA VILLALPANDO; RUBEN
GARCIA DIAZ,

              Plaintiffs - Appellants

v.

CITY OF GRAPEVINE, TEXAS; EDDIE SALAME, Chief of Police; ROBERT
CLARK, Officer,

              Defendants - Appellees




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


Before STEWART, Chief Judge, and CLEMENT, and SOUTHWICK, Circuit
Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Plaintiffs, surviving family members of Ruben Garcia-Villalpando
(“Villalpando”) and the representative of his estate (collectively “Romero”),
appeal the district court’s grant of a motion to dismiss her claims against the
City of Grapevine (“Grapevine”) and Eddie Salame, Chief of the Grapevine
Police Department (“GPD”). Romero further appeals the district court’s
subsequent grant of summary judgment in favor of Officer Robert Clark on
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                                  No. 17-10083
Romero’s remaining excessive force claim under 42 U.S.C. § 1983 on the basis
of qualified immunity. For the reasons stated below, we AFFIRM.
                                        I
      On February 20, 2015, shortly after six PM, Officer Clark responded to
a burglar alarm at a commercial building. In the driveway adjacent to the back
of the building, Clark encountered an idling four-door sedan. The car began to
move forward and Clark followed for a short period of time before turning on
his emergency lights, signaling for the car to pull over. The sedan, driven by
Villalpando, did not stop, proceeded to speed up, and ran a stop sign. Clark
activated the full use of his emergency lights and car siren, and began to follow
the vehicle. He informed the police dispatcher that he was in pursuit and that
he believed the sedan’s occupant or occupants were responsible for the “[break]
in” at the commercial building. Villalpando continued to accelerate and
eventually pulled onto the onramp to State Highway 121, southbound.
      Clark began a high speed chase of the sedan on the highway, which, at
the time, was heavily trafficked. Villalpando wove the sedan back and forth
across the four lanes of traffic and drove around traffic along the shoulders.
Clark asked dispatch to alert police units in the neighboring city of Euless.
After roughly one-and-a-half minutes of highway pursuit, Villalpando waved
one hand out of his driver’s side window, apparently signaling that he would
pull over. Villalpando proceeded to pull onto the narrow shoulder of a two-lane
exit ramp; Clark pulled over behind Villalpando’s sedan. Clark testified that
because he had followed Villalpando from the scene of a suspected burglary
and engaged in a high speed chase in which Villalpando was driving recklessly,
he treated the stop as a “felony traffic stop.” As Clark explained, “[i]n a felony
traffic stop, the Officer will take additional precautions when encountering the
stopped vehicle and the precautions can include drawing the Officer’s duty
weapon,” which he did before exiting his vehicle.
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                                 No. 17-10083
      Clark immediately instructed Villalpando: “Let me see your hands. Put
your hands out the window.” Villalpando complied and waved both hands out
of his driver’s side window. Clark proceeded to repeat himself several times,
instructing Villalpando to “get [his] hands out the window” and “keep [his]
hands out the window.” During this time frame, Clark testified that
Villalpando “repeatedly moved at least one of his hands back out of view inside
the vehicle.” The dash cam footage shows Villalpando moving his right hand
back inside his window at least once. Throughout this time period, several cars
passed.
      Keeping his left hand raised and visible, Villalpando opened his driver’s
side door. He then raised both of his hands in the air. Clark immediately
ordered Villalpando to “stay right there . . . stay right there and keep your f-
cking hands out the window.” Villalpando appears to move both of his hands
back inside of the car. Clark again repeated his instructions, yelling “get your
hands out,” “keep your f-cking hands up,” and “dude, I’m telling you keep your
hands right there.” He also radioed the police dispatcher, telling them that
Villalpando was trying to get out of the vehicle and requesting that his backup
“step it up.” Villalpando again briefly moved his right arm back inside his
vehicle, after which Clark screamed “hey! Keep your f-cking hands where I can
see ‘em.” Again, several cars drove past the scene developing on the highway
shoulder.
      Despite Clark’s instructions, Villalpando proceeded to open his door, exit
his car, and turn towards Clark. He initially kept his arms raised above his
head. Clark yelled several more warnings: “you better stand right there
motherf-cker,” “stay right there,” “keep your hands where I can see them and
stay right there.” Though Clark’s exact position at this point is not visible on
the film, a photograph taken by a passing motorist shows Clark standing no
more than a few feet in front of his driver’s side headlight with his gun drawn.
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Villalpando’s right foot was nearly touching the white line separating the
shoulder from the traffic lanes. Clark testified that he was “concerned
[Villalpando] had a weapon on his person.” Clark radioed dispatch, telling
them that he “got [Villalpando] outta the vehicle, his hands are up, he’s facing
me right now. Kept tryin’ to reach for somethin’.” Villalpando then lowered his
hands and placed them on his head. Clark told dispatch that he had
Villalpando at gunpoint and that Villalpando was currently obeying his
commands but repeated that he “kept trying to reach for somethin’” in his
vehicle.
      Villalpando asked Clark “what’s your problem?” and “who you calling
motherf-cker?” Clark responded: “[you] kept reaching for stuff, you’re not
gonna listen to me.” Villalpando tapped his chest and said “kill me.” Clark
assured him “nah, I’m not gonna kill you,” and again radioed dispatch that
backup “might want to step it up. He’s saying kill me.” As several more cars
passed in view of the dash cam—including at least one in the lane closest to
the shoulder—Villalpando turned his back to Clark. He then dropped his
hands briefly to the back of his waistband and clasped his right wrist with his
left hand. Clark again screamed “hey. Get your f-cking hands up now.”
Villalpando turned and raised his hands in the air and told Clark “I’m gonna
walk to you.” Clark yelled “no, stand right there” and “hey. Get your hands up”
as Villalpando again dropped his hands briefly to his waist. Clark repeated
himself: “stand right there . . . get to the back of the car.” Villalpando again
said to Clark “nah. Kill me.”
      Over the next several seconds, Villalpando began to walk slowly towards
Clark with his hands on his head. Four times, Clark told Villalpando to “stand
right there,” and he instructed him twice to “get to the back of the car” and to
“stop . . . stop right there.” Villalpando twice verbally refused to comply, stating
“no . . . no, I’m not.” Fumbling slightly with his hat, Villalpando turned his
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                                   No. 17-10083
back to Clark, and continued moving towards him while spinning again to face
him. Clark continued to yell repeated instructions: “back up . . . dude, back up.
Back up, motherf-cker . . . Back up. Get to the back of the car.”
      As cars continued to pass in the traffic lanes, Villalpando kept walking
slowly towards Clark with his hands on his head; Clark told Villalpando four
more times to “get to the back of the car.” Eventually, Villalpando got so close
to Clark’s vehicle on the driver’s side that he was no longer visible on the dash
cam. Seconds after Villalpando stepped off camera, Clark fired two gunshots.
Clark yelled at Villalpando several times to “get your hands where I can see
them” as he radioed to dispatch “shots fired.” Clark told dispatch “he was
coming at me . . . he kept coming at me. I gave him commands to stop. He kept
coming at me, he wouldn’t stop.” Villalpando died several hours later. He was
ultimately found to be unarmed.
      Romero filed her original complaint in the district court on September
23, 2015, and defendants moved to dismiss. In her first amended complaint,
Romero brought claims under 42 U.S.C. § 1983 against the City, Salame, and
Clark, for failure to provide adequate training, excessive force, and deliberate
indifference to medical needs. Romero also alleged that defendants conspired
to deprive Villalpando of his Fourth Amendment rights in violation of 42 U.S.C.
§ 1985. Lastly, Romero brought claims under the Texas wrongful death and
survival statutes, Texas Civil Practice and Remedies Code §§ 71.001 and
71.021. The district court granted defendants’ motion to dismiss all claims
against the City and Salame, as well as the § 1985 claim against Clark and the
portion of Romero’s § 1983 claim alleging indifference to Villalpando’s medical
needs. 1 Only Romero’s excessive force claim under § 1983 against Clark was


      1 In her brief on appeal, Romero does not address her conspiracy claim under
§ 1985, her claim under § 1983 for indifference to Villalpando’s medical needs, or her
state law claims. Accordingly, these claims are waived. See United States v. Lindell,
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                                    No. 17-10083
allowed to proceed, and the district court allowed discovery limited to qualified
immunity issues. The district court ultimately granted Clark’s motion for
summary judgment, holding that he was entitled to qualified immunity.
Romero timely appeals.
                                          II
      This court reviews a grant of summary judgment de novo, applying the
same standard as the district court. Rogers v. Bromac Title Servs., L.L.C., 755
F.3d 347, 350 (5th Cir. 2014). “Summary judgment is proper ‘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.’” Id. (quoting Fed. R. Civ. P. 56(a)).
A genuine dispute 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). We construe “all facts and
inferences in the light most favorable to the nonmoving party,” Dillon v.
Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (citation omitted); but, “[s]ummary
judgment may not be thwarted by conclusional allegations, unsupported
assertions, or presentation of only a scintilla of evidence.” McFaul v.
Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012). The plaintiffs bear the burden
of demonstrating that a defendant is not entitled to qualified immunity. Trent
v. Wade, 776 F.3d 368, 376 (5th Cir. 2015); Brown v. Callahan, 623 F.3d 249,
253 (5th Cir. 2010). “Further, although courts view evidence in the light most
favorable to the nonmoving party, they give greater weight, even at the
summary judgment stage, to the facts evident from video recordings taken at
the scene.” Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016) (citing Carnaby
v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011).


881 F.2d 1313, 1325 (5th Cir. 1989). The portion of Romero’s briefing addressing the
claims disposed of by defendants’ motion to dismiss discusses only her failure to train
and inadequate screening/hiring claims against the City and Salame.
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                                  No. 17-10083
      We review the district court’s grant of a motion to dismiss under Rule
12(b)(6) de novo. Quinn v. Guerrero, 863 F.3d 353, 363 (5th Cir. 2017). To
survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotations omitted). The court accepts all well-pleaded facts as true and must
consider those facts in the light most favorable to the plaintiff. Stokes v. Gann,
498 F.3d 483, 484 (5th Cir 2007).
                                       III
      We first address the district court’s grant of summary judgment in favor
of Clark on Romero’s § 1983 excessive force claim on the basis Clark was
entitled to qualified immunity.
      Qualified immunity shields from liability “all but the plainly
incompetent or those who knowingly violate the law.” Malley v. Briggs, 475
U.S. 335, 341 (1986). Accordingly, “qualified immunity represents the norm,”
Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982), and courts should deny a
defendant immunity only in rare circumstances, see Brady v. Ford Bend Cty.,
58 F.3d 173, 173 (5th Cir. 1995). Again, once Clark asserted his qualified
immunity defense, the burden shifted to the plaintiffs to demonstrate that
Clark is not entitled to its protection. See Trent, 776 F.3d at 376; Brown, 623
F.3d at 253.
      In determining whether an officer is entitled to qualified immunity,
courts engage in a two-step inquiry. Tolan v. Cotton, 134 S.Ct. 1861, 1865
(2014). First: “Taken in the light most favorable to the party asserting the
injury, do the facts show the officer’s conduct violated a constitutional right[.]”
Saucier v. Katz, 533 U.S. 194, 201 (2001). Second, we ask “whether the right
in question was ‘clearly established’ at the time of the violation.” Tolan, 134
S.Ct at 1866 (citing Hope v. Pelzer, 536 U.S. 730, 739 (2002)). Thus, the first
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                                  No. 17-10083
question is whether Clark violated Villalpando’s Fourth Amendment right to
be free from excessive force. See Flores v. City of Palacios, 381 F.3d 391, 396
(5th Cir. 2004) (citing Graham v. Connor, 490 U.S. 386, 388 (1989)).
      To state a claim for excessive force, Romero must demonstrate: “(1) an
injury (2) which resulted directly and only from the use of force that was clearly
excessive to the need and (3) the force used was objectively unreasonable.”
Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000) (quoting
Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999)). Because Clark used
deadly force, “our ‘objective reasonableness’ balancing test is constrained.”
Flores, 381 F. 3d at 399 (quoting Tennessee v. Garner, 471 U.S. 1, 3 (1985)).
The use of deadly force violates the Fourth Amendment unless “the officer has
probable cause to believe that the suspect poses a threat of serious physical
harm, either to the officer or to others.” Garner, 471 U.S. at 11; see also Manis
v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) (“An officer’s use of deadly force
is not excessive, and thus no constitutional violation occurs, when the officer
reasonably believes that the suspect poses a threat of serious harm.”).
      Recognizing that “police officers are often forced to make split second
judgments—in circumstances that are tense, uncertain, and rapidly evolving—
about the amount of force that is necessary in a particular situation,” Graham,
490 U.S. at 396, the Supreme Court has warned against “second-guessing a
police officer’s assessment, made on the scene, of the danger presented by a
particular situation,” Ryburn v. Huff, 565 U.S. 469, 477 (2012). Accordingly,
reasonableness “must be judged 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. In evaluating whether an officer acted reasonably, courts may consider
“the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officer or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.” Hogan v. Cunningham, 722 F.3d
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                                   No. 17-10083
725, 734 (5th Cir. 2013) (quoting Graham, 490 U.S. at 396). The court “must
consider all of the circumstances leading up to [the moment deadly force is
used],       because   they   inform   the       reasonableness     of   [the   officer’s]
decisionmaking.” Mendez v. Poitevent, 823 F.3d 326, 333 (5th Cir. 2016).
         Contrary to Romero’s assertions, the salient factual circumstances are
uncontroverted and supported by the dash cam footage. First, Clark
encountered Villalpando’s car while responding to the scene of a suspected
burglary—a felony offense. Villalpando did not stop when Clark activated his
emergency lights and used his siren. Instead, Villalpando fled at a high rate of
speed, ran a stop sign, and accelerated onto the highway. Once on the highway,
Villalpando recklessly wove back and forth across four lanes of traffic and
drove on the shoulder. Given his dangerous behavior, Clark reasonably
suspected that the occupant or occupants of Villalpando’s car “were involved in
burglarizing or attempting to burglarize” the commercial building. When
Villalpando finally stopped the vehicle on the shoulder of a highway exit, Clark
issued several commands for him to make his hands visible, which Villalpando
ignored at least once, reaching his right hand back into his driver’s side
window. 2 Despite several more clear commands to remain in his vehicle and
keep his hands out of the window, Villalpando opened his driver’s side door
and stepped out. Clearly worried for his own safety, Clark told dispatch on
more than one occasion to “step it up” and that Villalpando “kept trying to
reach for somethin’.” Villalpando twice told Clark: “kill me.” All of this unfolded




         Romero disputes the number of times Villalpando reached his hands back
         2

into the vehicle, but this disagreement between the parties is immaterial. The video
establishes that his right hand disappeared inside the vehicle at least once and
possibly as many as three or four times. Even if Villalpando’s hand suspiciously
reached back inside the vehicle only once, it was reasonable for Clark to fear he may
have been reaching for a weapon.
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                                 No. 17-10083
as multiple cars were passing in the traffic lines immediately to the left of the
shoulder.
      Over the next several minutes, Clark instructed Villalpando over and
over again to stay where he was and keep his hands up. Villalpando
deliberately ignored Clark’s commands, walking towards Clark on the narrow
shoulder, dropping his arms once to his waist, and fiddling with his hat. Clark
testified that he “was concerned [Villalpando] could have a weapon on his
person, and he may have been hiding a weapon on his person when he kept
reaching back inside the car.” As Villalpando walked towards Clark—
deliberately flouting his repeated commands—Clark “feared for [his] life
because all it would take from Villalpando was for him to push or shove [Clark]
and he would easily end up in the traffic lanes,” and Clark “knew cars were
driving past [him] on the exit ramp at speeds that were high enough to be
deadly.”
      Given the tense and evolving factual circumstances, Clark “reasonably
believe[d] that [Villalpando] pose[d] a threat of serious harm.” Manis, 585 F.3d
at 843. Villalpando fled the scene of a suspected crime, drove recklessly and
endangered other drivers, refused to obey roughly thirty commands to keep his
hands visible and to stay in or near his vehicle, and approached Clark on a
narrow highway shoulder directly adjacent to speeding traffic. At the time
Clark shot Villalpando, he had walked so close to Clark’s vehicle that he was
no longer visible on the dash cam. Clark was forced to make a “split-second
judgment[]—in circumstances that [were] tense, uncertain, and rapidly
evolving—about the amount of force that [was] necessary.” Graham, 490 U.S.
at 396. That Villalpando was ultimately found to have been unarmed is
immaterial—Clark reasonably feared for his own safety. We will not “second-
guess[] a police officer’s assessment, made on the scene, of the danger
presented by a particular situation.” Ryburn, 565 U.S. at 477. In light of the
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information available to him at the time of the shooting, Clark’s decision to use
deadly force was reasonable, and he did not violate Villalpando’s Fourth
Amendment right. 3
      Accordingly, the district court properly granted summary judgment to
Clark on the basis of qualified immunity.
                                           IV
      Because Romero has failed to demonstrate that Villalpando’s Fourth
Amendment rights were violated, her claims against the City and Salame for
failure to train and inadequate screening/hiring cannot survive. See Rios v.
City of Del Rio, 444 F.3d 417, 425 (5th Cir. 2006). In order to confer liability on
the City and Salame for deficient supervisory conduct, there must be “a
‘sufficient   causal   connection’    between     [the   City’s]    conduct    and   the
constitutional violation.” Id. (quoting Evett v. DETNTFF, 330 F.3d 681, 689
(5th Cir. 2003). “[I]t is facially evident that this test cannot be met if there is




      3  Even if Clark had used excessive force in violation of Villalpando’s Fourth
Amendment right, Clark would still be entitled to qualified immunity because the
right, defined at a fact specific level, was not clearly established at the time of the
violation. See Mullenix v. Luna, 136 S.Ct. 305, 308 (2015). “A clearly established right
is one that is ‘sufficiently clear that every reasonable officer would have understood
that what he is doing violates that right.’” Id. (quoting Reichle v. Howards, 566 U.S.
658, 664 (2012)). The Supreme Court has explained that courts must not “define
clearly established law at a high level of generality.” Id. (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 742 (2011)). Instead, the question is “whether it was clearly established
that the Fourth Amendment prohibited the officer’s conduct in the ‘situation [he or
she] confronted.’” Id. at 309 (emphasis added) (quoting Brosseau v. Haugen, 543 U.S.
194, 199 (2004)). Romero does not cite to any controlling authority nor does she point
to a “robust consensus of persuasive authority” that suggests Clark’s actions were
obviously unconstitutional. Morgan v. Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011)
(en banc). While authority need not be exactly analogous to aid the court in
determining whether a right was clearly established, “this area is one in which the
result depends very much on the facts of each case,” and the authority must “squarely
govern[]” the circumstances. Brosseau, 543 U.S. at 201. There simply is no such
authority.
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no underlying constitutional violation.” Id. Accordingly, the claims were
properly dismissed.
                                     V
     For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment in favor of Clark, and AFFIRM the district court’s
dismissal of the claims against the City and Salame.




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