     Case: 16-20799      Document: 00514082499         Page: 1    Date Filed: 07/20/2017




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

                                                                                     FILED
                                    No. 16-20799                                 July 20, 2017
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
SHIRLEY FRANCIS, Individually and as Representative of the Estate of
Gerrit Perkins and Bridget Neriz,

              Plaintiff - Appellant

v.

SHERIFF ADRIAN GARCIA; DEPUTY CHARLES MULBAH GBUNBLEE;
DEPUTY BASILO JOSEPH REYES; DEPUTY W. R. MENDEZ; HARRIS
COUNTY,

              Defendants - Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CV-2943


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Shirley Francis and Bridget Neriz sued Sheriff Adrian Garcia, Deputies
Charles GBunblee, Basilo Reyes, W.R. Mendez, and Harris County, Texas,
alleging violations of 42 U.S.C. § 1983.           The defendants filed motions for
summary judgment, which the district court granted. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                   No. 16-20799
                 FACTUAL AND PROCEDURAL BACKGROUND
         On September 21, 2012, Bridget Neriz called the Harris County Sheriff’s
Office to report domestic violence. She claimed her boyfriend, Garrit Perkins,
pushed her to the floor, held a knife to her throat, and choked her with his
other hand. Perkins allegedly struck Neriz in the face with the flat edge of the
knife.    He then lifted her from the floor and carried her into the master
bedroom in a headlock. In the bedroom, Perkins retrieved a handgun from the
bedside table, dragged Neriz into the closet, and threatened to kill her and then
himself.
         Deputy Charles GBunblee was dispatched to the residence on Analisa
Circle in Houston.      After taking Neriz’s statement, GBunblee relayed the
account to a Harris County Assistant District Attorney, who agreed to accept
the charge of aggravated assault with a deadly weapon against Perkins.
GBunblee then sought an arrest warrant for Perkins, which “was issued and
assigned for execution to the Harris County Gulf Coast Violent Offenders Task
Force[.]”
         The Task Force established surveillance on the residence with no results.
Eventually, the Task Force developed an anonymous source who agreed to
notify police if he saw Perkins entering the home. Around 8:00 p.m. on October
17, 2012, the anonymous source called police to report that Perkins arrived at
the home in a silver SUV with a handicap license plate. The Task Force then
notified Deputy GBunblee and asked him to execute the arrest warrant.
GBunblee received permission from his supervisor to execute the warrant but
was instructed to take additional deputies with him and not to force entry into
the home.
         GBunblee then called Deputies Basilo Reyes and W.R. Mendez, who
accompanied him to the residence. Beforehand, GBunblee checked the Harris
County Judicial Information Management System and confirmed the warrant
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                                  No. 16-20799
against Perkins was still valid.     GBunblee briefed Reyes and Mendez by
showing them Perkins’s photograph and providing a description of his earlier
domestic-violence offense. He warned “them that Perkins was over six feet
tall, weighed at least 250 pounds, and may be armed.”
      GBunblee and the other deputies parked their patrol cars a block away
from the home so Perkins would not become aware of their approach. The
deputies saw the silver SUV in the driveway; its hood was warm as if Perkins
had recently arrived. The deputies, wearing their standard-issue uniforms,
knocked on the door but received no response. Deputies Reyes and Mendez
retreated to their cars, but GBunblee lingered to ask a neighbor about
Perkins’s whereabouts. During their conversation, GBunblee saw Neriz exit
her home and place something in the trash can. He then radioed Reyes and
Mendez to return and approached Neriz to ask if Perkins was inside the home.
She replied, “No.”    After further questioning, the defendants claim Neriz
“agreed that the deputies could come inside[.]”
      The deputies drew their weapons before entering the home. Reyes and
Mendez searched the second floor, while GBunblee remained downstairs to
search the kitchen and living areas. Before entering the downstairs master
bedroom, GBunblee instructed Neriz to stay in the common area.               Upon
entering the room, GBunblee announced his presence but received no answer.
He used his flashlight to increase visibility, as the television generated the only
light in the room. GBunblee then searched the bedroom to no avail before
entering the dark master bathroom.
      Once inside the bathroom, GBunblee attempted to open a walk-in closet
but “could feel a large object holding the door closed.” He announced himself
multiple times before pushing the door ajar. Using his flashlight, GBunblee
“saw Perkins kneeling, crouching, or squatting on the floor with his back to
GBunblee and his arms and hands in front of his body.” GBunblee ordered
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                                 No. 16-20799
Perkins to put his hands above his head. Without complying, Perkins stood
quickly and began to turn toward GBunblee. At that point, GBunblee saw a
black object approximately the size of a handgun in Perkins’s left hand.
GBunblee fired his weapon, hitting Perkins in the right side of his back. The
object in Perkins’s hand was a cordless telephone.
      Reyes and Mendez went downstairs after hearing the shots.           Reyes
requested medical assistance for Perkins. At that time, Neriz entered the
master bedroom and failed to comply with Reyes’s orders to get on the ground.
As a result, Reyes forced her to the ground, handcuffed her, and escorted her
to a parked patrol vehicle. Perkins was transported to a local hospital, where
he died.
      Nariz and Shirley Francis, acting in their individual and representative
capacities, sued Harris County, Sheriff Adrian Garcia, and Deputies
GBunblee, Reyes, and Mendez. They alleged violations of 42 U.S.C. § 1983,
specifically complaining of Fourth, Fifth, and Fourteenth Amendment
violations. The defendants moved for summary judgment based on qualified
immunity. The district court granted the motion and entered final judgment
in favor of the defendants. Francis and Neriz timely noticed this appeal.


                                 DISCUSSION
      We review the district court’s grant of summary judgment de novo,
applying the same legal standard to the evidence as the district court did.
Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003).
Summary judgment is appropriate when “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 dispute is genuine “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.”


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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if
it “might affect the outcome of the suit under the governing law[.]” Id.
      The moving party bears the initial burden of identifying the basis for its
motion and the portions of the record that support it. Nola Spice Designs,
L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015). Once that
burden is satisfied, the nonmovant must “go beyond the pleadings and by her
own affidavits . . . designate specific facts showing that there is a genuine issue
for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). We review the
evidence in the light most favorable to the non-moving party, with all
reasonable inferences from the evidence made in that party’s favor. Nola
Spice, 783 F.3d at 536.
      Section 1983 provides a cause of action against any person who deprives
another of “any rights, privileges, or immunities secured by the Constitution
and laws” of the United States. To make a sufficient claim, plaintiffs “must (1)
allege a violation of a right secured by the Constitution or laws of the United
States and (2) demonstrate that the alleged deprivation was committed by a
person acting under color of state law.” Moore v. Willis Indep. Sch. Dist., 233
F.3d 871, 874 (5th Cir. 2000). Plaintiffs “must identify defendants who were
either personally involved in the constitutional violation or whose acts are
causally connected to the constitutional violation alleged.”            Anderson v.
Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999).
      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). To do so, the plaintiff
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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) (quoting Harlow, 457
U.S. at 818). We have discretion to determine which step to address first.
Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013). To negate the qualified-
immunity defense, the plaintiff must offer proof beyond “mere allegations.”
Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009).
       Francis and Neriz originally alleged the defendants were liable for
numerous constitutional violations, including unreasonable search and
seizure, unlawful arrest, and excessive force. They narrowed their allegations
on appeal, complaining now about GBunblee’s alleged use of excessive force. 1
To succeed on their excessive-force claim, the plaintiffs must establish “(1)
injury (2) which resulted directly and only from a use of force that was clearly
excessive, and (3) the excessiveness of which was clearly unreasonable.” See
Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007). If the officer reasonably
believes the suspect poses a threat of serious harm, the use of deadly force is
not excessive.     Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009).                   In
determining reasonableness, we make “allowance 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).      Accordingly, we judge the officer’s conduct based on “the
circumstances confronting him, without the benefit of hindsight.” Manis, 585
F.3d at 843.




       1 Francis and Neriz abandoned their unreasonable-search-and-seizure and unlawful-
arrest claims by failing to brief them on appeal. See Yohey v. Collins, 985 F.2d 222, 224–25
(5th Cir. 1993).
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                                  No. 16-20799
        The defendants concede that Perkins suffered injury as a result of
GBunblee’s use of deadly force. The remaining question, then, is whether
GBunblee’s use of such force was excessive and unreasonable.
        The district court relied on a decision involving a man named Ontiveros
and his friend, Lara, who were engaged in a violent altercation with three men.
Ontiveros, 564 F.3d at 381. Ontiveros repeatedly threatened to kill two of the
men while Lara pointed a gun at them. Id. The victims reported the incident
to the police, and a magistrate judge issued felony arrest warrants for
Ontiveros and Lara. Id. When police officers were assigned to serve the
warrants, they were warned that Ontiveros and Lara were “involved in a
violent altercation earlier in the day, may have been drinking, possessed and
threatened to use a pistol and a rifle, and were believed capable of using the
weapons.” Id. During the search of Ontiveros’s home, the police observed
someone enter the master bedroom and close the door. Id. After several
attempts to kick the door open, the police decided Ontiveros must be blocking
the door. Id. They illuminated the room with their flashlights through a small
opening and viewed Ontiveros by glancing around the door. Id. An officer who
believed Ontiveros was reaching for a weapon fired two fatal shots. Id.
        The district court granted summary judgment based on qualified
immunity. Id. at 382, 385. Plaintiffs had attempted to show a genuine dispute
of material fact by questioning the officer’s credibility. Id. at 383. We found,
though, that other officers were able to corroborate his version of events and
that the plaintiffs had failed to produce evidence contradicting his testimony.
Id. Next, the plaintiffs suggested that Ontiveros did not present a threat
because the evidence showed he was kneeling at the time of his death. Id. at
385.     Even if Ontiveros were kneeling, “a reasonable officer could have
interpreted the totality of his actions as a refusal to comply with orders[,]” and


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the evidence did not contradict the officer’s account that Ontiveros appeared to
be reaching for a weapon. Id. Qualified immunity was thus proper. Id.
      Qualified immunity applies here also. As in Ontiveros, Deputy GBunblee
was aware prior to the execution of the arrest warrant that Perkins may be
armed.    GBunblee had personally responded to the domestic-violence
complaint the previous month and was aware that Perkins had threatened to
kill his girlfriend with both a knife and a gun. GBunblee was also aware of
Perkins’s size, having warned Deputies Reyes and Mendez that Perkins was
over six feet tall and weighed at least 250 pounds. Like Ontiveros, Perkins
attempted to evade apprehension by blocking the door to the walk-in closet.
GBunblee could see him through the small opening in the door with the
assistance of his flashlight. After asking Perkins to comply by raising his
hands, Perkins failed to do so. Instead, like Ontiveros, Perkins made a sudden
movement that GBunblee interpreted as threatening conduct.             Further,
GBunblee saw a black object in Perkins’s hand that was about the size of a
handgun. Without the benefit of overhead light, then, it would be reasonable
for GBunblee to assume that Perkins posed a threat. See Plumhoff v. Rickard,
134 S. Ct. 2012, 2020 (2014).
      The plaintiffs allege there are three factual disputes material to the
qualified-immunity analysis. First, an expert testified, based on the trajectory
of the gunshot, that Perkins’s posture was non-threatening when he was shot.
Second, GBunblee’s testimony is not credible because it allegedly contradicts
other evidence. Finally, GBunblee is an interested witness.
      The expert’s testimony about Perkins’s posture at the time of his death
is insufficient to create the kind of genuine dispute capable of overcoming
summary judgment. See Ontiveros, 564 F.3d at 385. In Ontiveros, evidence
suggested the victim was kneeling when he died, but we held a reasonable
officer could have believed his noncompliance with commands and perceived
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                                      No. 16-20799
attempt to reach for a weapon posed a threat of serious harm. Id. Here,
Perkins was originally kneeling in the closet with “his arms and hands in front
of his body.” GBunblee would have had no way to know whether Perkins
possessed a weapon.         Further, Perkins failed to comply with GBunblee’s
commands. Finally, regardless of Perkins’s posture, GBunblee saw Perkins
carrying a dark object approximately the size of a handgun. Based on “the
circumstances confronting him,” it would have been objectively reasonable for
GBunblee to believe “that [Perkins] pose[d] a threat of serious harm to the
officer or to others.” 2 See Manis, 585 F.3d at 843.
       The plaintiffs’ argument about GBunblee’s credibility is also unavailing.
We have analyzed situations in which the shooting officer was the only witness
to the events. See Ontiveros, 564 F.3d at 383–84. In one case, for example, we
credited the officer’s uncorroborated testimony because it did not contradict
other evidence and the plaintiffs failed to introduce evidence creating a
genuine fact issue. Small ex rel. R.G. v. City of Alexandria, 622 F. App’x 378,
382 (5th Cir. 2015). Likewise, GBunblee’s testimony is uncontroverted, and
the plaintiffs failed to introduce evidence to undermine it. We will not reverse
the district court’s grant of summary judgment based on “mere allegations.”
See Ontiveros, 564 F.3d at 382.
       AFFIRMED.




       2  The defendants argue the plaintiffs misinterpreted the medical evidence, as it
“suggests that the taller Perkins was standing fully upright and turning to his right when
the much shorter GBunblee discharged his weapon.” The expert’s diagram of the gunshot’s
trajectory is subject to varying interpretations, though. The bullet did enter the lower back
and travel upward toward the sternum, indicating one of two scenarios. First, as the
defendants argue, the shorter GBunblee shot the taller Perkins after Perkins stood. Second,
GBunblee shot Perkins’s lower back as Perkins was kneeling forward. In any event, Perkins’s
posture does not impact the analysis as to whether GBunblee was objectively reasonable in
his belief that Perkins posed a threat of harm.
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