Romero v. City of Grapevine

• Decision Date: 20 April 2018
• Docket Number: No. 17-10083,17-10083
• Citation: 888 F.3d 170
• Parties: Martha Anjelica ROMERO, Individually and as Representative of Ruben Garcia-Villalpando, Deceased; Eduardo Garcia; Keila Garcia; Abdiel Garcia, Minor; Maria Estela Villalpando; Ruben Garcia Diaz, Plaintiffs-Appellants, v. CITY OF GRAPEVINE, TEXAS; Eddie Salame, Chief of Police; Robert Clark, Officer, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

888 F.3d 170

Martha Anjelica ROMERO, Individually and as Representative of Ruben Garcia-Villalpando, Deceased; Eduardo Garcia; Keila Garcia; Abdiel Garcia, Minor; Maria Estela Villalpando; Ruben Garcia Diaz, Plaintiffs-Appellants,

v.CITY OF GRAPEVINE, TEXAS; Eddie Salame, Chief of Police; Robert Clark, Officer, Defendants-Appellees.

No. 17-10083

United States Court of Appeals, Fifth Circuit.

Filed April 20, 2018

William Sam Hommel, Jr., Suite 200, 1404 Rice Road, Tyler, TX 75703-0000, Domingo A. Garcia, Law Offices of Domingo A. Garcia, Suite 620, 400 S. Zang Boulevard, Dallas, TX 75208 for Plaintiffs-Appellants.

James Thomas Jeffrey, Jr., Esq., Law Offices of Jim Jeffrey, 3200 W. Arkansas Lane, Arlington, TX 76016 for Defendants-Appellees.

Before STEWART, Chief Judge, and CLEMENT, and SOUTHWICK, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Plaintiffs, surviving family members of Ruben Garcia-Villalpando ("Villalpando") and the representative of his estate (collectively "Romero"), appeal the district court’s grant of a motion to dismiss her claims against the City of Grapevine ("Grapevine") and Eddie Salame, Chief of the Grapevine Police Department ("GPD"). Romero further appeals the district court’s subsequent grant of summary judgment in favor of Officer Robert Clark on Romero’s remaining excessive force claim under 42 U.S.C. § 1983 on the basis of qualified immunity. For the reasons stated below, we AFFIRM.

I

On February 20, 2015, shortly after six PM, Officer Clark responded to a burglar alarm at a commercial building. In the driveway adjacent to the back of the building, Clark encountered an idling four-door sedan. The car began to move forward and Clark followed for a short period of time before turning on his emergency lights, signaling for the car to pull over. The sedan, driven by Villalpando, did not stop, proceeded to speed up, and ran a stop sign. Clark activated the full use of his emergency lights and car siren, and began to follow the vehicle. He informed the police dispatcher that he was in pursuit and that he believed the sedan’s occupant or occupants were responsible for the "[break] in" at the commercial building. Villalpando continued to accelerate and eventually pulled onto the onramp to State Highway 121, southbound.

Clark began a high speed chase of the sedan on the highway, which, at the time, was heavily trafficked. Villalpando wove the sedan back and forth across the four lanes of traffic and drove around traffic along the shoulders. Clark asked dispatch to alert police units in the neighboring city of Euless. After roughly one-and-a-half minutes of highway pursuit, Villalpando waved one hand out of his driver’s side window, apparently signaling that he would pull over. Villalpando proceeded to pull onto the narrow shoulder of a two-lane exit ramp; Clark pulled over behind Villalpando’s sedan. Clark testified that because he had followed Villalpando from the scene of a suspected burglary and engaged in a high speed chase in which Villalpando was driving recklessly, he treated the stop as a "felony traffic stop." As Clark explained, "[i]n a felony traffic stop, the Officer will take additional precautions when encountering the stopped vehicle and the precautions can include drawing the Officer’s duty weapon," which he did before exiting his vehicle.

Clark immediately instructed Villalpando: "Let me see your hands. Put your hands out the window." Villalpando complied and waved both hands out of his driver’s side window. Clark proceeded to repeat himself several times, instructing Villalpando to "get [his] hands out the window" and "keep [his] hands out the window." During this time frame, Clark testified that Villalpando "repeatedly moved at least one of his hands back out of view inside the vehicle." The dash cam footage shows Villalpando moving his right hand back inside his window at least once. Throughout this time period, several cars passed.

Keeping his left hand raised and visible, Villalpando opened his driver’s side door. He then raised both of his hands in the air. Clark immediately ordered Villalpando to "stay right there ... stay right there and keep your f–cking hands out the window." Villalpando appears to move both of his hands back inside of the car. Clark again repeated his instructions, yelling "get your hands out," "keep your f–cking hands up," and "dude, I’m telling you keep your hands right there." He also radioed the police dispatcher, telling them that Villalpando was trying to get out of the vehicle and requesting that his backup "step it up." Villalpando again briefly moved his right arm back inside his vehicle, after which Clark screamed "hey! Keep your f–cking hands where I can see ‘em." Again, several cars drove past the scene developing on the highway shoulder.

Despite Clark’s instructions, Villalpando proceeded to open his door, exit his car, and turn towards Clark. He initially kept his arms raised above his head. Clark yelled several more warnings: "you better stand right there motherf–cker," "stay right there," "keep your hands where I can see them and stay right there." Though Clark’s exact position at this point is not visible on the film, a photograph taken by a passing motorist shows Clark standing no more than a few feet in front of his driver’s side headlight with his gun drawn. Villalpando’s right foot was nearly touching the white line separating the shoulder from the traffic lanes. Clark testified that he was "concerned [Villalpando] had a weapon on his person." Clark radioed dispatch, telling them that he "got [Villalpando] outta the vehicle, his hands are up, he’s facing me right now. Kept tryin’ to reach for somethin’." Villalpando then lowered his hands and placed them on his head. Clark told dispatch that he had Villalpando at gunpoint and that Villalpando was currently obeying his commands but repeated that he "kept trying to reach for somethin’ " in his vehicle.

Villalpando asked Clark "what’s your problem?" and "who you calling motherf-cker?" Clark responded: "[you] kept reaching for stuff, you’re not gonna listen to me." Villalpando tapped his chest and said "kill me." Clark assured him "nah, I’m not gonna kill you," and again radioed dispatch that backup "might want to step it up. He’s saying kill me." As several more cars passed in view of the dash cam—including at least one in the lane closest to the shoulder—Villalpando turned his back to Clark. He then dropped his hands briefly to the back of his waistband and clasped his right wrist with his left hand. Clark again screamed "hey. Get your f–cking hands up now." Villalpando turned and raised his hands in the air and told Clark "I’m gonna walk to you." Clark yelled "no, stand right there" and "hey. Get your hands up" as Villalpando again dropped his hands briefly to his waist. Clark repeated himself: "stand right there ... get to the back of the car." Villalpando again said to Clark "nah. Kill me."

Over the next several seconds, Villalpando began to walk slowly towards Clark with his hands on his head. Four times, Clark told Villalpando to "stand right there," and he instructed him twice to "get to the back of the car" and to "stop ... stop right there." Villalpando twice verbally refused to comply, stating "no ... no, I’m not." Fumbling slightly with his hat, Villalpando turned his back to Clark, and continued moving towards him while spinning again to face him. Clark continued to yell repeated instructions: "back up ... dude, back up. Back up, motherf-cker ... Back up. Get to the back of the car."

As cars continued to pass in the traffic lanes, Villalpando kept walking slowly towards Clark with his hands on his head; Clark told Villalpando four more times to "get to the back of the car." Eventually, Villalpando got so close to Clark’s vehicle on the driver’s side that he was no longer visible on the dash cam. Seconds after Villalpando stepped off camera, Clark fired two gunshots. Clark yelled at Villalpando several times to "get your hands where I can see them" as he radioed to dispatch "shots fired." Clark told dispatch "he was coming at me ... he kept coming at me. I gave him commands to stop. He kept coming at me, he wouldn’t stop." Villalpando died several hours later. He was ultimately found to be unarmed.

Romero filed her original complaint in the district court on September 23, 2015, and defendants moved to dismiss. In her first amended complaint, Romero brought claims under 42 U.S.C. § 1983 against the City, Salame, and Clark, for failure to provide adequate training, excessive force, and deliberate indifference to medical needs. Romero also alleged that defendants conspired to deprive Villalpando of his Fourth Amendment rights in violation of 42 U.S.C. § 1985. Lastly, Romero brought claims under the Texas wrongful death and survival statutes, Texas Civil Practice and Remedies Code §§ 71.001 and 71.021. The district court granted defendants’ motion to dismiss all claims against the City and Salame, as well as the § 1985 claim against Clark and the portion of Romero’s § 1983 claim alleging indifference to Villalpando’s medical needs.¹ Only Romero’s excessive force claim under § 1983 against Clark was allowed to proceed, and the district court allowed discovery limited to qualified immunity issues. The district court ultimately granted Clark’s motion for summary judgment, holding that he was entitled to qualified immunity. Romero timely appeals.

II

This court reviews a grant of summary judgment de novo , applying the same standard as the district court. Rogers v. Bromac Title Servs., L.L.C. , 755 F.3d 347, 350 (5th Cir. 2014). "Summary judgment is proper ‘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.’ " Id . (quoting Fed. R. Civ. P. 56(a) ). A genuine dispute of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v....