     Case: 13-11143      Document: 00512695429        Page: 1     Date Filed: 07/11/2014




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

                                                                               FILED
                                   No. 13-11143                            July 11, 2014
                                 Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
NANCY ROYAL, Individually and Personal Representative of the Estate of
Jeffery Cole Royal, Deceased,
                                   Plaintiff–Appellant,

v.

JOHN SPRAGINS; MICHAEL BROWN; MICHAEL GOINS; CITY OF
WICHITA FALLS, TEXAS; MANUEL BORREGO,

                                                Defendants–Appellees.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:12-CV-174


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
      Nancy Royal (Royal) sued three Wichita Falls police officers, the City of
Wichita Falls, and the Chief of Police Manuel Borrego under 42 U.S.C. § 1983,
claiming that the defendants violated her son’s constitutional rights. The
claims arise out of a tragic incident, in which the officers shot and killed her
son Jeffery Cole Royal (Jeffery) after responding to a 911 call that he was



*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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 13-11143     Document: 00512695429       Page: 2   Date Filed: 07/11/2014


                                   No. 13-11143

threatening to commit suicide. All of the defendants moved for summary
judgment, and the district court granted their motions. We affirm.
                                         I
      We begin with a brief overview of the summary judgment evidence. Each
of the affidavits of the three police officers tell essentially the same story: One
evening, the three officers were dispatched to an address, on Becky Drive, in a
mobile home park. The officers were aware that the man outside the home was
suicidal and had a gun. Two of the officers, Michael Brown and Michael Goins,
arrived at the trailer park first and parked their patrol cars at the entrance to
the trailer park. They decided to take their rifles and attempt to locate the
subject on foot. As they began walking down Eldridge Lane toward Becky
Drive, the third officer, Sergeant John Spragins, drove up in his patrol car
behind them. Spragins briefly spoke with Brown and Goins, then turned onto
Becky Drive and continued driving slowly down the street. Brown and Goins
followed behind Spragins on foot using his patrol car as cover.            Spragins
confirmed with Dispatch that the subject was in a gold Chevrolet Impala
vehicle, and the officers soon saw a car matching the vehicle’s description.
Spragins saw the subject (Jeffery) inside the vehicle and another person
(Thomas Orr) standing outside of the car by the driver’s side door. Spragins
stopped his patrol car where Becky Drive begins to curve around to the east,
so that the car was facing to the south, approximately fifteen to twenty yards
from Jeffery’s car, which faced west. Spragins turned his spotlight on the
subject’s vehicle and yelled for Orr to move away from the car. As Orr started
to walk to the rear of the car and then north behind the car towards the trailer
home on Becky Drive, Jeffery open the car door and started to get out, holding
a rifle in his hand. At least one officer told Jeffery to drop the rifle, but Jeffery
instead lowered the rifle and pointed it in the direction of the officers. The



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officers then fired their guns at Jeffery until he fell backwards from being
struck.
      A declaration by Orr was also part of the record. In his declaration, Orr
stated that: (1) he was within five feet of Jeffery when he was shot; (2) “[p]rior
to the shooting, at no time did [he] see [Jeffery] point his rifle at anyone” or
“hear anyone state to . . . [Jeffery] . . . to put down his rifle”; and (3) he “saw
Jeffery falling to the ground after he was shot and the position of his rifle was
the same as Jeffery held it prior to being shot, and was not pointed at anyone.”
      The evidence also included an autopsy report prepared by Dr. Marc A.
Krouse. The report stated that the path of one of the bullets “through the left
forearm and its fragments into the chest wall is consistent with the forearm
extended to near horizontal and to the left of and slightly forward of the chest.
Such a position is consistent with statements from the police officers at the
scene that . . . Jeffery . . . had a firearm . . . pointed in the general direction of
the subject who fired the projectile that struck [his] left arm.”
      Other evidence included affidavits of Detectives Tony Fox and John
Laughlin, who arrived at the scene after the shooting occurred; a Tarrant
County Medical Examiner’s Report, largely summarizing statements by
Detective Laughlin; an Open Records Request Letter from the City of Wichita
Falls with a Custodial Death Report and notes from Detective Laughlin;
depositions of the officers; and a photograph of the scene after the shooting.
                                         II
      Royal sued the three police officers in their individual capacities under
§ 1983 claiming that the officers used excessive force in violation of the Fourth
Amendment right against unreasonable seizure. She also sued the Chief of
Police in his official capacity and the City of Wichita Falls under various
theories of municipal liability under § 1983. In their answer, the police officers



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asserted qualified immunity. The district court initially denied the defense,
but it permitted the officers to raise the defense again by a later motion. The
officers subsequently moved for summary judgment, alleging qualified
immunity, and Royal filed a response.
          The district court granted the motion for summary judgment, holding
that there was no genuine dispute as to any material fact and the officers were
entitled to immunity because the force used was not excessive or unreasonable.
Royal filed a motion for reconsideration. In a response, the officers urged the
court to deny reconsideration, and the City of Wichita Falls and the Police
Chief argued that since there was no underlying constitutional violation,
summary judgment in their favor was appropriate as well. The district court
denied the motion for reconsideration and also granted summary judgment for
the City and the Police Chief. Royal appealed.
                                                III
          We review the grant of a motion for summary judgment de novo,
applying the same standard as the district court. 1 Summary judgment is only
appropriate “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.” 2 We
must view the evidence in the light most favorable to the non-moving party, 3
but “conclusory statements, speculation, and unsubstantiated assertions
cannot defeat a motion for summary judgment.” 4




1   Trinity Universal Ins. Co. v. Emp’rs Mut. Cas. Co., 592 F.3d 687, 690 (5th Cir. 2010).
2   FED. R. CIV. P. 56(a).
3   Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014).
4   RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).


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                                                IV
         We begin by addressing whether the three police officers were entitled
to qualified immunity from the claim of excessive force. We apply a two-step
analysis to decide whether a defendant is entitled to summary judgment on
the basis of qualified immunity. “First, we determine whether, viewing the
summary judgment evidence in the light most favorable to the plaintiff, the
defendant violated the plaintiff’s constitutional rights.” 5 If we determine there
was such a violation, “we next consider whether the defendant’s actions were
objectively unreasonable in light of clearly established law at the time of the
conduct in question.” 6
         Here, Royal alleges that the officers used excessive force in violation of
the Fourth Amendment right against unreasonable seizure. “To prevail on an
excessive force claim, a plaintiff 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.” 7 In deciding whether the
force used was “clearly excessive” and “clearly unreasonable,” “we must
determine whether ‘the totality of the circumstances justified’ the particular
use of force.” 8 This is an objective standard, and “[t]he ‘reasonableness’ of a
particular use of force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.” 9
Determining “whether this right was violated requires a balancing of the
nature and quality of the intrusion on the individual’s Fourth Amendment


5Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008) (quoting Freeman v. Gore, 483 F.3d
404, 410 (5th Cir. 2007)).
6   Id. (quoting Freeman, 483 F.3d at 411).
7   Id. (quoting Freeman, 483 F.3d at 416) (internal quotation marks omitted).
8   Id. (quoting Tennessee v. Garner, 471 U.S. 1, 9 (1985)).
9   Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).


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interests against the importance of the governmental interests alleged to
justify the intrusion.” 10 Using “deadly force is not unreasonable when an
officer would have reason to believe that the suspect poses a threat of serious
harm to the officer or others.” 11
            The district court concluded that the officers were entitled to qualified
immunity since their use of force was not excessive or unreasonable under the
circumstances. According to the district court, the officers presented evidence
that Jeffery pointed his gun at them, and Royal did not come forth with any
non-conclusory, relevant conflicting evidence in order to raise a genuine issue
of material of fact. The district court thus held that the officers’ use of deadly
force was reasonable in response to the threat of serious physical harm posed
by a suicidal man pointing his gun at them.
            We agree that the force used was not clearly excessive or clearly
unreasonable. In a case similar to this one, Ramirez v. Knoulton, 12 two officers
responded to a call about a man who was suicidal and armed. 13 The suicidal
man drove away from his house as the officers arrived, and the officers followed
him in their patrol car until he stopped. 14 The officers repeatedly told the man
to keep his hands where the officers could see them, but he refused. 15 Instead,
he got out of the car, and the officers saw a gun in his right hand. 16 The man
“briefly put his hands on his hips, then brought his hands together in front of

10See Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014) (quoting Garner, 471 U.S. at 8) (internal
quotation marks omitted).
11Ramirez, 542 F.3d at 129 (quoting Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir.
2003)).
12   542 F.3d 124 (5th Cir. 2008).
13   Ramirez, 542 F.3d at 126-27.
14   Id. at 127.
15   Id.
16   Id.


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his waist,” and as his hands came together, one officer fired a shot and hit the
man in the face. 17 Reversing the district court’s denial of summary judgment
to the shooting officer, the Fifth Circuit held that the officer’s actions did not
constitute excessive force. 18 This court reasoned that even though the man did
not raise his weapon, discharge the weapon, or even point it at the officer, the
officer had probable cause to believe that the man posed a threat of serious
physical harm. 19
            Here, the analysis is even clearer: Jeffery, a suicidal man, not only exited
his car with his gun, but also began lowering the gun and pointing it at the
officers. This was sufficient to give the officers full reason to believe that
Jeffery posed a threat of serious harm to them. Under these circumstances,
the use of deadly force was not clearly excessive or clearly unreasonable.
            Royal nonetheless argues summary judgment was inappropriate
because there was a genuine dispute of material fact as to whether Jeffery
began lowering his gun and pointing it at the officers immediately prior to the
shooting. This argument fails. All three of the officers on the scene stated in
their affidavits that Jeffery began lowering his gun and pointing it in their
direction after exiting his vehicle. Orr’s declaration only states that he never
saw Jeffery point his gun at anyone, not that Jeffery never actually pointed the
gun at anyone. From Spragins’s affidavit, it is clear that after the officers
asked Orr to step away from the vehicle, which was right before Jeffery was
shot, Orr began walking towards the back of the car and across the back of the
car in the direction of his home. Even Royal admits in her briefing that
although Orr observed Jeffery “just before being shot,” “Orr was not directly


17   Id.
18   Id. at 131.
19   Id. at 129.


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looking at [Jeffery] when [he was] shot.” Thus, the only testimony in the record
as to whether Jeffery began lowering his gun in the officers’ direction
immediately prior to when the officers fired is the officers’ testimony that he
did so.
       Royal also contends that other evidence created a genuine dispute of
material fact. First, she claims that Jeffery’s forearm could not have been
extended and parallel to the ground at the time he was shot because of the way
one of the bullets impacted his forearm. However, the only evidence Royal
cites, Dr. Krouse’s autopsy report, described the forearm wound in detail and
stated that the wound was consistent with Jeffery’s gun being pointed in the
general direction of the officer who shot his forearm. Moreover, the report’s
statement that the bullets were in a “downward” direction “relative to his body
core” was regarding the bullets that struck Jeffery’s shoulder and chest, not
the bullet that struck his forearm.                 Without citing any evidence that
contradicts the autopsy report’s findings, Royal’s allegations regarding the
forearm wound are unsubstantiated assertions that cannot defeat a motion for
summary judgment.
       Second, Royal contends that the officers’ and Orr’s accounts are
inconsistent about other events immediately preceding the shooting, such as
whether Jeffery was ordered out of the car and told to drop his gun, and
whether Jeffery knew that the officers were not ordinary citizens. Yet issues
like these are not “material” because they do not alter our excessive force
analysis: whether the officer was objectively reasonable in believing the subject
posed a threat of serious harm. 20 Even if there are a few minor inconsistencies



20Id. at 129; see also Burgos v. Sw. Bell Tel. Co., 20 F.3d 633, 635 (5th Cir. 1994) (stating that
“[a]n issue is ‘material’ if it involves a fact that might affect the outcome of the suit under the
governing law”).


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in the accounts, no evidence contradicts the affidavits’ statements that Jeffery
was in the process of pointing his gun towards the officers before they fired.
         Royal further argues that the officers’ actions leading up to the shooting
created a dangerous situation, and in assessing the reasonableness of the
officers’ force, we should consider whether the officers’ own reckless conduct
unreasonably created the need to use such force. Specifically, Royal argues
that the officers created a dangerous situation in several ways: by (1) not
knowing policies or procedures applicable to dealing with a suicidal person; (2)
not using their patrol cars’ audio or video recording; (3) not using the patrol
cars’ headlights or any other lights prior to shining the spotlight; and (4)
concealing the fact that they were police officers. This line of argument also
lacks merit.
         We have stated that “[e]ven where an officer acts negligently and
contrary to police procedure, this court has failed to recognize a constitutional
claim where a police officer used deadly force in response to a reasonable belief
that an individual posed a threat of serious harm.” 21 We decline Royal’s
invitation to stray from our precedents by considering the officers’ actions
before the moment of the threat that resulted in the officers’ shooting—here,
the moment when Jeffery began lowering the rifle.             Even assuming that
Wichita Falls had a policy in place for dealing with suicidal persons and the
officers were not aware of or did not follow the policy, the officers did not violate
Jeffery’s Fourth Amendment right to be free from excessive force as they acted
reasonably when Jeffery began lowering his gun.
         Finally, Royal contends that because an emergency situation arose
which led to Jeffery’s seizure, the officers “had the burden of proving they ha[d]
an objectively reasonable concern that exigent circumstances exist[ed].” Yet

21   Ramirez, 542 F.3d at 130.


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the one case Royal cites for this proposition is a Tenth Circuit case analyzing
whether police officers reasonably relied on a search warrant authorizing a no-
knock entry of a residence on the basis of exigent circumstances. 22 Although
this case also involves a Fourth Amendment claim, Royal cites nothing to
suggest our court would apply this exigent-circumstances rule in considering
whether force used by officers was clearly excessive or clearly unreasonable.
We instead apply our binding precedents and hold that the officers acted
reasonably when Jeffery began lowering his gun in their direction and
therefore did not violate his rights. Accordingly, the officers were entitled to
summary judgment on the basis of qualified immunity.
                                                V
         Summary judgment was also appropriate as to the City of Wichita Falls
and the Chief of Police.            In the absence of an underlying constitutional
violation, there is no municipal liability for the City or for the Chief of Police
sued in his official capacity. 23 Because the officers did not violate Jeffery’s
Fourth Amendment rights, the claims of municipal liability must fail also.
                                  *      *       *
         The judgment of the district court is AFFIRMED.




22   See United States v. Nielson, 415 F.3d 1195, 1202-04 (10th Cir. 2005).
23Elizondo v. Green, 671 F.3d 506, 510-11 (5th Cir. 2012) (“[I]n the absence of a constitutional
violation, there can be no municipal liability for the City.”); Rios v. City of Del Rio, Tex., 444
F.3d 417, 425-26 (5th Cir. 2006) (holding that the Chief of Police was not liable absent an
underlying constitutional violation).


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