                      IN THE UNITED STATES COURT OF APPEALS
                               FOR THE FIFTH CIRCUIT



                                           No. 01-20058
                                         Summary Calendar



JUANITA KELLY, Individually
and in behalf of and as representative
of the Estate of Colleen Beverly Kelly;
COLLEEN BEVERLY KELLY, Estate of,

                                                                               Plaintiffs-Appellants,

                                                versus

CITY OF HOUSTON, TEXAS;
J.H. SHACKETT, Police Officer
sued in his individual capacity,

                                                                               Defendants-Appellees.

                       __________________________________________

                     Appeal from the United States District Court
                          for the Southern District of Texas
                               USDC No. H-00-CV-218
                  __________________________________________
                                    July 24, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.

PER CURIAM:*

       Juanita Kelly (“Juanita”) appeals the district court’s summary-judgment dismissal of her 42

U.S.C. § 1983 lawsuit, specifically, she challenges the dismissal of her excessive-force claim against

Officer J.H. Shackett arising out of the shooting death of her daughter, Colleen Beverly Kelly

(“Colleen”). Juanita has not adequately briefed her municipal-liability claims or her state-law claims,

and those claims are therefore waived. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).




       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       Juanita argues that there was a material factual dispute regarding whether the shooting was

objectively unreasonable and whether Officer Shackett objectively reasonably believed Colleen had

a gun which precluded summary judgment. She further contends that the district court failed to

address her expert affidavit testimony that Officer Shackett handled the incident in gross violation of

generally accepted police custom and policy.

       A de novo review of the undisputed summary-judgment evidence belies her arguments. See

Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1326 (5th Cir. 1996). As the district court

determined, the uncontroverted evidence establishes that, in light of all of the circumstances viewed

at the time of the shooting, Officer Shackett’s use of force was objectively reasonable and not

excessive to the need. Officer Shackett reasonably believed that Colleen had a gun. He had been

advised that Colleen intended to kill herself and, although the original 911 call was ambiguous, he had

confirmed that she either had a gun or was on her way to find a gun. It is true that Juanita informed

Officer Shackett shortly before the shooting that Colleen did not have a gun, but he reasonably

discounted Juanita’s statement in light of the fact that Juanita did not know Colleen’s whereabouts

or that Colleen had called her psychiatrist to threaten suicide. Moreover, Colleen behaved as though

she was holding a gun inside of the fanny pack she carried. The eyewitness accounts all demonstrate,

without refutation, that Colleen refused to put the fanny pack down despite all of the officers’

requests and that she held, aimed, and made shooting motions with the object she carried as though

she were aiming and shooting a gun directly at Officer Shackett. Juanita’s expert testimony that the

officers should have initially approached Colleen in a different manner and that, had they, they may

have been able to subdue her, is irrelevant. See Fraire v. City of Arlington, 957 F.2d 1268, 1276 (5th

Cir. 1992) (it is not constitutionally unreasonable to use deadly force when the officer has probable

cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to

others, at the moment the shooting took place). Colleen’s actions clearly gave Officer Shackett

reason to believe, at the moment of the shooting, that he was in imminent danger of physical harm,

and his use of force in self-defense was not a constitutional violation. See id.; see also Graham v.


                                                  2
Connor, 490 U.S. 386, 396-97 (1989). Accordingly, the excessive-force claim fails, and the district

court’s judgment is AFFIRMED.




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