     Case: 10-31061     Document: 00511546241         Page: 1     Date Filed: 07/20/2011




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

                                                                            FILED
                                                                           July 20, 2011

                                     No. 10-31061                          Lyle W. Cayce
                                   Summary Calender                             Clerk



TOMMY FERNAND SANCHEZ, JR.; HAZEL SANCHEZ, as Tutrix of minor
child Tyler Sanchez; TONYA SANCHEZ,

                                                  Plaintiffs–Appellants
v.

DANIEL EDWARDS, Sheriff, Tangipahoa Parish; HAMMOND CITY; JACOB
SCHWEBEL; GARRETT BANQUER,

                                                  Defendants–Appellees



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:08-CV-1227


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        The plaintiffs brought this § 1983 suit alleging excessive force after two
of the defendants, Hammond Police Officer Garrett Banquer and Tangipahoa
Parish Sheriff Deputy Jacob Schwebel, shot and killed the plaintiffs’ father,
Thomas Sanchez Sr. The district court granted summary judgment to the
defendants after finding that the officers’ actions were objectively reasonable

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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and did not deprive Sanchez of his constitutional right to be free from the use of
excessive force under the Fourth Amendment. We affirm.
                              I. BACKGROUND
      On March 7, 2007, several officers from the Tangipahoa Parish Sheriff’s
Office and the Hammond Police Department were conducting a surveillance
operation of a residence in Ponchatoula, Louisiana, to investigate suspected
illegal drug activity. When the surveillance was discovered, the officers began
searching the premises for drugs and questioning individuals who approached
the residence. Sanchez approached the residence in a 1992 Toyota Camry and
pulled into the neighboring driveway. Two of the officers at the residence,
Officer Banquer and Deputy Schwebel, walked towards the vehicle. Schwebel
approached the driver’s side, and Banquer approached the passenger’s side.
Both Schwebel and Banquer were wearing clothing identifying themselves as
law-enforcement officers.
      After the officers verbally identified themselves as law-enforcement
officers, they ordered Sanchez to stop the vehicle. Instead, Sanchez reversed
into the street. Both officers shouted for him to stop. Schwebel followed the car
into the road and held his position by the driver’s side window. Banquer, in an
attempt to remain on the passenger’s side of the vehicle, crossed in front of the
car while Sanchez reversed out of the driveway. Once Sanchez’s car had exited
the driveway and while Banquer was positioned near the front of the car,
Sanchez put the car into drive and accelerated in the direction of Banquer.
Witnesses in the neighboring yards heard the sound of tires spinning on the
gravel over the shouts of both officers commanding that Sanchez stop the
vehicle. As the vehicle accelerated towards Banquer, both officers fired their
service weapons at Sanchez. The vehicle struck Banquer, continued down the
road, and eventually came to a stop in a ditch. Sanchez was hit by three of the
shots fired by Schwebel and was pronounced dead at the scene.

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        On March 7, 2008, the plaintiffs filed this claim under 42 U.S.C. § 1983
against Schwebel; his employer, Tangipahoa Parish Sheriff Daniel Edwards;
Banquer; and his employer, the City of Hammond, Louisiana. The complaint
alleged that the shooting violated Sanchez’s constitutional right to be free from
the use of excessive force. The district court granted the defendants’ motion
for summary judgment, holding that Schwebel’s and Banquer’s actions were
objectively reasonable.
                           II. STANDARD OF REVIEW
        We review a grant of summary judgment de novo, applying the same
standard as the district court. Apache Corp. v. W & T Offshore, Inc., 626 F.3d
789, 793 (5th Cir. 2010). Summary judgment is appropriate when “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). We may affirm a grant of summary
judgment “on any basis supported by the record.” TIG Specialty Ins. Co. v.
Pinkmonkey.com Inc., 375 F.3d 365, 369 (5th Cir. 2004).
                                    III. ANALYSIS
A.      Claims against Banquer and Schwebel
        The defendants assert qualified immunity on appeal.1 “The doctrine of
qualified immunity protects government officials ‘from liability from civil
damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.”
Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 815 (2009) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, the qualified-immunity inquiry
has two prongs: (1) whether an official’s conduct violated a constitutional right
of the plaintiff, and (2) whether the right was clearly established at the time of
the violation. Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (citation

       1
        The district court did not expressly state that it was relying on qualified immunity,
but that appears to be the basis for its grant of summary judgment.

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omitted). “A court may rely on either prong of the defense in its analysis.” Id.
(citation omitted). Because we conclude that Sanchez’s constitutional rights
were not violated in this case, we need not consider the issue of whether those
rights were clearly established.
      “The use of deadly force for apprehension is a seizure subject to the
reasonableness requirement of the Fourth Amendment.” Hathaway v. Bazany,
507 F.3d 312, 320 (5th Cir. 2007) (citing Tennessee v. Garner, 471 U.S. 1, 7
(1985)). In Garner, the Supreme Court defined the circumstances under which
an officer’s use of deadly force to stop a fleeing suspect is constitutionally
reasonable:
      Where the officer has probable cause to believe that the suspect
      poses a threat of serious physical harm, either to the officer or to
      others, it is not constitutionally unreasonable to prevent escape by
      using deadly force. Thus, if the suspect threatens the officer with a
      weapon or there is probable cause to believe that he committed a
      crime involving the infliction or threatened infliction of serious
      physical harm, deadly force may be used if necessary to prevent
      escape, and if, where feasible, some warning has been given.
471 U.S. at 11–12. “The reasonableness of an officer’s use of deadly force is
therefore determined by the existence of a credible, serious threat to the physical
safety of the officer or to those in the vicinity.” Hathaway, 507 F.3d at 320. In
making this determination, we must allow “for the fact 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 v. Connor, 490 U.S. 386, 396–97 (1989).
      In Hathaway v. Bazany, we applied the Garner standard to facts that are
legally indistinguishable from the facts in this case. See 507 F.3d 315–16. In
Hathaway, a police officer stopped a vehicle in order to investigate a gang-
related altercation in the area. Id. at 315. When the officer, who was on foot,
was approximately eight-to-ten feet from the front right corner of the vehicle,


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the vehicle suddenly accelerated towards him. Id. at 316. He attempted to get
out of the way, but when he realized that he would not be able to do so, he
decided to fire his weapon. Id. The vehicle struck the officer on the left leg,
and the officer fired his weapon, although he could not recall whether he fired
it before, during, or immediately after he was struck by the vehicle. Id. The
shot hit the driver of the vehicle and killed him. Id.
      On these facts, we held that the officer’s use of deadly force was justified
even though he could not specifically recall when he fired his weapon. See id.
at 321–22. In doing so, we surveyed the relevant case law and identified two
“central” factors in the reasonableness inquiry in these kinds of cases: (1) “the
limited time [an] officer[ ] ha[s] to respond” to the threat from the vehicle; and
(2) “‘the closeness of the officer[ ] to the projected path of [the] vehicle.’” Id.
at 321 (quoting Waterman v. Batton, 393 F.3d 471, 479 (4th Cir. 2005)) (final
alteration in Hathaway). Given the officer’s “close proximity” to the vehicle and
the “extremely brief period of time” in which he had to react to the vehicle’s
movement towards him, we found that the officer was objectively reasonable
in his perception of a threat of serious physical harm to himself and in his
decision to respond to that threat with deadly force. Id. at 322.
      Applying these factors to the fact of this case, we find that Banquer and
Schwebel acted reasonably in their use of deadly force on Sanchez. Like the
officer in Hathaway, Banquer and Schwebel had to take action quickly and
decisively in response to an oncoming vehicle that was threatening an officer’s
safety. Sanchez ignored numerous commands from the officers to bring his
vehicle to a stop. Both Banquer and Schwebel, who were the only eyewitnesses
to the shooting, testified that Banquer was in front of Sanchez’s Camry when
Sanchez put the car into drive and drove forward. Because of the short period
of time in which the officers had to react to Sanchez’s abrupt change of direction
and Banquer’s obvious peril given his position in front of the vehicle, we have

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absolutely no trouble finding that the officer’s decision to use deadly force was
reasonable under the circumstances.
      The plaintiffs cite to Lytle v. Bexas County, Texas, 560 F.3d 404 (5th Cir.
2009), in support of their appeal, but Lytle is distinguishable. In Lytle, we held
that a police officer was not entitled to qualified immunity when the officer
fired shots through the rear window of a vehicle driven by a fleeing suspect.
Id. at 417. We based our decision on evidence suggesting that the officer was
three-to-four houses away from the vehicle when he fired his weapon and that
the vehicle was moving away from, rather than towards, him at the time. Id.
at 412. By contrast, in this case the record shows that Banquer and Schwebel
were within feet of Sanchez’s car when they fired their weapons and that
Banquer’s shots struck the front windshield and hood of the car. Thus, our
decision in Lytle is far from relevant, as there is no credible evidence in the
record in this case to suggest that the officers fired their weapons at a fleeing
vehicle that posed no risk to either officer.
      The plaintiffs also assert that a statement made by Ladrelle Wells, a
woman who was detained by the police after she approached the residence,
creates a genuine issue of material fact. In her statement, which she made to
the police shortly after the incident, Wells described the events as she had
observed them from her position in the adjacent yard. She stated that after
the Camry had reversed into the street, but before it had begun to accelerate
forward, Banquer was standing near the passenger’s side door of the car. The
plaintiffs argue that if Banquer was not in front of the car when it accelerated
forward, then he was not in danger and the officers’ use of deadly force was
unreasonable.
      Wells’s assertion regarding Banquer’s position vis-à-vis Sanchez’s car,
however, is exceptionally weak evidence. Her assertion contradicts the other
parts of her statement to the police and her own deposition testimony. In her

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deposition, she testified that she did not see any part of the incident after the
Camry reversed out of the driveway. Also, in both her statement to the police
and her deposition, she consistently maintained that she did not witness the
shootings because it was nighttime, she was far away from the incident, and
she was looking in another direction. The only eyewitnesses to the shooting,
Banquer and Schwebel, contradict Wells’s assertion, and there is no dispute
that Banquer’s shots struck the front windshield and hood of Sanchez’s car.
The plaintiffs’ own expert testified to the possibility that Banquer fired his
weapon from a position between the front headlights of the vehicle, and all of
the other experts testified that it is impossible to determine the exact location
of Banquer when he fired the shots.
        Given that Wells’s inconsistent and contradicted assertion is the only
evidence in the record on which the plaintiffs can rely, we find that it is simply
insufficient to create a genuine dispute of material fact to get past summary
judgment. See Hathaway, 507 F.3d at 319 (reiterating the uncontroversial
proposition that a plaintiff needs more than a “scintilla of evidence” to create a
genuine dispute of material fact). On the basis of the record in this case, no
reasonable juror could find that Banquer and Schwebel acted unreasonably
under the circumstances, and therefore we conclude that they are entitled to
qualified immunity.
B.      Claims against Sheriff Edwards and Hammond City
        The plaintiffs also bring municipal-liability claims under § 1983 against
Sheriff Edwards and Hammond City. To succeed on such a claim, the plaintiffs
must show an underlying constitutional violation resulting from an official
policy. Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 694 (1978). As the plaintiffs
are unable to show an underlying constitutional violation, they have failed to
meet their burden under the Monell standard.
        AFFIRMED.

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