     Case: 10-11177   Document: 00511757207   Page: 1   Date Filed: 02/13/2012




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

                                                                  FILED
                                                              February 13, 2012

                                 No. 10-11177                    Lyle W. Cayce
                                                                      Clerk

JOSE ELIZONDO; ALICIA ELIZONDO, Individually and as Representatives
of the Estate of Ruddy Elizondo,

                                          Plaintiffs - Appellants
v.

W. M. GREEN, Officer,

                                          Defendant - Appellee


                             Cons w/ No. 11-10309


JOSE ELIZONDO; ALICIA ELIZONDO, Individually and as Representatives
of the Estate of Ruddy Elizondo,

                                          Plaintiffs - Appellants
v.

THE CITY OF GARLAND,

                                          Defendant - Appellee


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


Before DeMOSS, CLEMENT, and ELROD, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
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                                 No. 10-11177

      Jose and Alicia Elizondo (the “Elizondos”), individually and on behalf of
the estate of Ruddy Elizondo (“Ruddy”), appeal from two separate district court
orders granting summary judgment to Officer W.M. Green and the City of
Garland, Texas (the “City”), on their claims pursuant to 42 U.S.C. § 1983 that
Green used excessive force against Ruddy in violation of the Fourth Amendment.
We affirm.
                        FACTS AND PROCEEDINGS
      The material facts are not in dispute. On March 18, 2009, Ruddy Elizondo,
a 17-year-old, came home at around midnight after a night out with friends.
Ruddy had been drinking and was emotional. He began playing loud music in his
bedroom, called a friend on the phone, and went out to the front porch. Ruddy’s
mother, Alicia Elizondo, who had been asleep, got up and told Ruddy to go to
bed. After Ruddy had returned to his room, his mother heard him crying. She
went to check on him and found him holding a knife to his abdomen. Ruddy had
attempted suicide by stabbing himself just over a month earlier, so Alicia was
understandably concerned. She began to cry and plead with Ruddy. The
commotion woke Claudia Elizondo, Ruddy’s sister, who called 911 because she
was afraid Ruddy might hurt their mother, who was trying to take the knife
away from Ruddy.
      Green, who was on patrol nearby, received a dispatch that a man had
stabbed himself and needed medical attention. The dispatcher mistakenly
informed Green that Ruddy had already stabbed himself and the knife was still
lodged in his abdomen. On this information, Green went to the house to clear
and secure the scene for the paramedics. When he arrived at the house, Alicia
directed Green to Ruddy’s room, where he found Ruddy unhurt and still holding
the knife to his stomach. Green drew his weapon, backed out of Ruddy’s room,
and repeatedly ordered him to put down the knife. Ruddy refused to comply. He
tried to close the door on Green, but Green did not let him. Several times, Ruddy

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                                       No. 10-11177

cursed at Green and yelled, “Fucking shoot me.” Green told Ruddy that he did
not want to shoot him, but that he would be forced to if Ruddy came any closer.
Despite Green’s warning, Ruddy moved closer to Green and raised the knife in
a threatening motion.1 Green fired his gun three times, hitting Ruddy in the
chest, shoulder and abdomen. Green immediately called in the paramedics, who
had been waiting outside, but Ruddy died from his wounds.
       The Elizondos brought suit against Green and the City2 in Texas state
court, asserting an excessive force claim under § 1983 and various state law tort
claims. Green removed the case to federal district court. The district court
eventually dismissed all of the state law claims against both defendants, and the
Elizondos have not appealed those dismissals. After limited discovery, Green
moved for summary judgment on the ground that he was entitled to qualified
immunity on the Elizondo’s excessive force claim. On October 18, 2010, the
district court granted Green’s motion, based on its determination that Green had
not committed a constitutional violation, and dismissed all claims against the
officer. At that time, the City had not yet moved for summary judgment. The
Elizondos filed a notice of appeal on November 17, 2010, seeking review of the
district court’s October 18 summary judgment order.
       Thereafter, the City filed its own motion for summary judgment. On
March 9, 2011, while the Elizondos’ first appeal was pending, the district court
granted summary judgment in favor of the City. On March 23, 2011, the
Elizondos filed a second notice of appeal, specifying the order granting summary
judgment in favor of the City, and shortly thereafter filed a motion to consolidate



       1
         The Elizondos argue in their appellate briefs that Ruddy never raised the knife, but
they fail to cite any record evidence that contradicts Green’s statements on this fact. Neither
Alicia nor Claudia saw whether Ruddy raised the knife or not.
       2
        The Elizondos originally named the Garland Police Department as a defendant, but
later amended its complaint to properly name the City.

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                                  No. 10-11177

the two appeals, Nos. 10-11177 and 11-10309, which we granted on March 29,
2011.
                           STANDARD OF REVIEW
        We review a grant of summary judgment de novo, applying the same
standard as the district court. Summary judgment is appropriate when the
evidence, viewed in the light most favorable to the nonmoving party, presents
no genuine issue of material fact and shows that the moving party is entitled to
judgment as a matter of law. See Jackson v. Cal-Western Packaging Corp., 602
F.3d 374, 377 (5th Cir. 2010).
                                 DISCUSSION
        Before considering the merits, we must address our jurisdiction to hear
these appeals. The parties agree that the Elizondo’s March 23, 2011 notice of
appeal was timely and effective, meaning that the district court’s grant of
summary judgment in favor of the City is properly before us. The parties do not
agree, however, on the effect of the Elizondos’ November 17, 2010 notice of
appeal, which sought review of the district court’s grant of summary judgment
in favor of Green.
        Green argues that the district court’s grant of summary judgment in his
favor on qualified immunity grounds was not immediately appealable because
it was not a final order. An order is final and appealable when it ends the
litigation and leaves nothing for the court to do but execute the judgment.
United States v. Garner, 749 F.2d 281, 285 (5th Cir. 1985); 28 U.S.C. § 1291. A
dismissal of claims against some, but not all, defendants is not a final appealable
judgment unless, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure,
the district court concludes that there is no justification for delaying an appeal
and specifically directs entry of judgment. Green is correct that the district
court’s October 18, 2010 order did not bring an effective end to the litigation and



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                                  No. 10-11177

was not final and appealable. See Dillion v. Miss. Military Dep’t, 23 F.3d 915,
917 (5th Cir. 1994).
      Nor was the October 18 order subject to the collateral order doctrine.
“Pursuant to the collateral order doctrine, a litigant may immediately appeal a
collateral order if the order (1) conclusively determines the disputed question,
(2) resolves an important issue completely separate from the merits of the action,
and (3) is effectively unreviewable on appeal from a final judgment.” In re
Bradford, 660 F.3d 226, 228 (5th Cir. 2011) (internal quotation marks omitted).
An order denying qualified immunity in a § 1983 action is immediately
appealable under the collateral order doctrine to the extent that it turns on a
question of law rather than a factual dispute, Short v. West, 662 F.3d 320, 325
(5th Cir. 2011), but the same does not hold for an order granting qualified
immunity. An order granting immunity can be fully and fairly reviewed after a
final judgment. See Thompson v. Betts, 754 F.2d 1243, 1246 (5th Cir. 1985);
Terrell v. City of El Paso, 176 F. App’x 623, 624 (5th Cir. 2006) (per curiam)
(unpublished). The Elizondos’ first notice of appeal therefore failed to give this
court jurisdiction to consider the district court’s order granting summary
judgment to Green.
      There is arguably some support for the contention that the Elizondos’
second notice of appeal brought both of the district court’s summary judgment
orders under our review, even though it specifically designated only the district
court’s March 9, 2011 order granting summary judgment to the City. Rule 3(c)
of the Federal Rules of Appellate Procedure requires the appellant to “designate
the judgment, order, or part thereof being appealed” in the notice of appeal, but
we have previously stated that
      [w]hile the requirements of Rule 3(c) are jurisdictional, and
      noncompliance is fatal to an appeal, . . . . [a] mistake in designating
      orders to be appealed does not bar review if the intent to appeal a


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                                  No. 10-11177

      particular judgment can be fairly inferred and if the appellee is not
      prejudiced or misled by the mistake.
N.Y. Life Ins. Co. v. Deshotel, 142 F.3d 873, 884 (5th Cir. 1998) (internal
citations and quotation marks omitted). It is questionable whether the Elizondos’
failure to designate the district court’s October 18 order in their second notice
of appeal constitutes the type of non-prejudicial “mistake” discussed in Deshotel,
but we need not decide that question. The Elizondos, adamant that their first
notice of appeal was proper, do not argue that their second notice of appeal
succeeded in bringing the district court’s October 18 order within our appellate
jurisdiction, and any such argument is therefore forfeited. See, e.g., United
States v. Banks, 624 F.3d 261, 264 (5th Cir. 2010). Thus, we consider only the
district court’s grant of summary judgment to the City.
      Turning to the merits of the appeal, the only issue before us is whether,
viewing the evidence in the light most favorable to the Elizondos, Green used
excessive force against Ruddy. Excessive force claims are analyzed under the
reasonableness standard of the Fourth Amendment. See Graham v. Connor, 490
U.S. 386, 395 (1989). The district court based its grant of summary judgment
in favor of the City on the conclusion that Green’s actions were reasonable and
that, as a result, no constitutional violation occurred.
      To establish the use of excessive force in violation of the Constitution, a
plaintiff must prove: “(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.” Collier v. Montgomery, 569 F.3d 214, 218 (5th Cir. 2009). The use
of deadly force is constitutional when the suspect poses a threat of serious
physical harm to the officer or others. See Tennessee v. Garner, 471 U.S. 1, 11
(1985). In analyzing the reasonableness of the specific use of force, courts must
consider the totality of the circumstances surrounding the officer’s decision. See
Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008).


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                                  No. 10-11177

      We agree with the district court’s conclusion that Green’s use of deadly
force was not clearly unreasonable. Ruddy ignored repeated instructions to put
down the knife he was holding and seemed intent on provoking Green. At the
time Green discharged his weapon, Ruddy was hostile, armed with a knife, in
close proximity to Green, and moving closer. Considering the totality of the
circumstances in which Green found himself, it was reasonable for him to
conclude that Ruddy posed a threat of serious harm. Finally, in the absence of
a constitutional violation, there can be no municipal liability for the City. See,
e.g., James v. Harris Cnty., 577 F.3d 612, 617 (5th Cir. 2009).
                                CONCLUSION
      For the reasons stated above, we affirm the district court’s grant of
summary judgment to the City.




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                                  No. 10-11177

Judge Harold R. DeMoss, Jr., specially concurring:
      I join the majority opinion in full because, under the current state of our
law, the panel is correct in its legal judgments with respect to jurisdiction and
liability. However, I once again feel compelled to write separately to express my
disapproval of and disappointment with the actions of the City of Garland police
department.
      We decide this case less than two months after a separate panel on which
I sat issued similar opinions in the equally tragic case of Rockwell v. Brown, 664
F.3d 985 (5th Cir. Dec. 15, 2011) (DeMoss, J., specially concurring). In Rockwell,
six City of Garland police officers responded to a domestic disturbance where
Scott Rockwell, a diagnosed bipolar schizophrenic who had previously attempted
suicide, was ranting and raving alone in his room. Id. He had threatened—but
not harmed—his parents earlier that night, and was barricaded in his room
when the officers arrived. Id. Yet in less than 30 minutes the officers armed
themselves, ignored the parents’ request to give Scott time to calm down, broke
down his bedroom door, provoked a knife attack, and shot him four times. Id. It
was the officers’ job to prevent violence or suicide, yet they quickly escalated the
situation to the point where they were legally justified to use deadly force
against a mentally ill person who obviously needed help. Id.
      Sadly, Ruddy Elizondo’s case is very similar to Rockwell. I firmly believe
that Officer Green “should have been trained to use better judgment in [his]
approach to volatile and unfortunate situations such as this one.” Id. Officer
Green was a very large man highly trained in self defense and armed with a
night stick, taser, and firearm, while Ruddy was a short and obese teenager who
was distraught, intoxicated, and contemplating suicide with a relatively small
knife. Moreover, Officer Green had only been on the scene for a few seconds,
backup was on the way, and emergency medical personnel was waiting outside



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                                       No. 10-11177

when the shooting occurred. Deadly force should have been Officer Green’s very
last resort rather than his first reaction.
       Presumably Officer Green followed standard police protocol for domestic
disturbances where a knife is involved, so I focus my criticism specifically at the
City of Garland police department’s training and tactical response programs.
There must be effective ways for police officers to resolve volatile situations that
avoid threatening or using deadly force.1 Forcing Ruddy’s bedroom door open,
yelling orders at him, and immediately drawing a firearm and threatening to
shoot was a very poor way to confront the drunk, distraught teenager who was
contemplating suicide with a knife.
       Either law enforcement procedures or our law must evolve if we are to
ensure that more avoidable deaths do not occur at the hands of those called to
“protect and serve.” Saving lives remains job number one for every law
enforcement agency, and it is imperative that they have better procedures in
place to deal with those persons who are young, intoxicated, mentally ill, or
otherwise likely to react poorly in already volatile situations. I firmly believe
that the light of public concern must be shined on tragic cases such as Scott
Rockwell’s and Ruddy Elizondo’s if more deaths are to be prevented. Hopefully
publication of this opinion will help to compel the City of Garland police
department—and all law enforcement agencies—to re-evaluate their training
and response procedures so that the use of deadly force remains the last resort
in every situation.




       1
         In Rockwell I suggested several options including those less-than-lethal tactics
currently used in prisons and with wild animals. In Ruddy’s case it seems that trying to defuse
the situation by talking calmly, clearing the house, and waiting for backup may have been
even more effective, especially since there is no indication that Ruddy had committed a crime
or was threatening violence to others such that he needed to be taken into custody
immediately.

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