Salas v. Carpenter

• Decision Date: 16 December 1992
• Docket Number: No. 91-1807,91-1807
• Parties: , 24 Fed.R.Serv.3d 1059, 37 Fed. R. Evid. Serv. 770 Dora SALAS, Individually and as Representative of the Estate of obo Juanita Hermosillo, et al., Plaintiffs-Appellees, v. Don CARPENTER, Individually and in his capacity as Sheriff of Tarrant County, Texas, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 299

980 F.2d 299

61 USLW 2422, 24 Fed.R.Serv.3d 1059,

37 Fed. R. Evid. Serv. 770

Dora SALAS, Individually and as Representative of the Estate

of obo Juanita Hermosillo, et al., Plaintiffs-Appellees, v. Don CARPENTER, Individually and in his capacity as Sheriff

of Tarrant County, Texas, et al., Defendants-Appellants.

No. 91-1807.

United States Court of Appeals,

Fifth Circuit.

Dec. 16, 1992.

Van Thompson, Jr., Asst. Dist. Atty., Ft. Worth, Tex., for defendants-appellants.

James Warren Lane, Ft. Worth, Tex., for Salas.

Robert Charles Lyon, Lyon & Lyon, Rowlett, Tex., Burleson, Pate & Gibson, Dallas, Tex., for Patino.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM and DUHE, Circuit Judges, and HARMON, ^* District Judge.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In this civil rights suit a former sheriff of Tarrant County, Texas appeals denial of dismissal or summary judgment based upon a claim of qualified immunity. Sheriff Don Carpenter commanded police efforts to free a hostage. The effort failed and Juanita Hermosillo, the hostage, was killed by her abductor. A public official enjoys a qualified "immunity from suit," not just immunity from liability, Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (emphasis in original). We find that no claim for deprivation of constitutional rights has been stated and in any event there is immunity. We reverse.

I

Juanita Hermosillo was a clerk in Tarrant County Justice Court No. 1 from 1981 until her death. In 1982, Hermosillo began dating Manuel Cabano, who worked for the Tarrant County Sheriff's Department in the early 1980's. They married in 1988, but their relationship was at best strained and by 1989 they lived separately. On Monday, July 24, 1989, Hermosillo complained to the Tarrant County District Attorney's office that Cabano was sexually molesting her two daughters from a previous marriage. Hermosillo hid from Cabano for the rest of the week, staying with a friend and not going to work. On July 31, Justice of the Peace Robert Ashmore told Hermosillo to return to work the next day. Cabano had not been arrested on the sexual assault complaint.

Around 3:00 p.m. on Tuesday, August 1, 1989, Cabano entered Judge Ashmore's offices at the Tarrant County courthouse with two guns. Cabano took Hermosillo and Judge Ashmore hostage, but soon released the judge. Others fled the office when Cabano entered and called the Tarrant County Sheriff's Department and the Fort Worth Police Department. Both agencies responded.

The Fort Worth Police Department dispatched its SWAT and hostage negotiation teams to the scene. They included negotiators with several years of training and experience. They began to set up a command post and communications equipment, in preparation for negotiating with Cabano. They were equipped to monitor or cut off Cabano's outside telephone calls and to record conversations between Cabano and negotiators. The SWAT team positioned snipers with a view of Judge Ashmore's offices. Fort Worth Chief of Police Thomas Windham was at the scene.

Before the Fort Worth police teams finished deploying, Tarrant County Sheriff Don Carpenter demanded that the police officers leave, claiming that courthouse security was within the exclusive jurisdiction of the sheriff's department. In a heated discussion, Carpenter refused Chief Windham's offer of police assistance. Carpenter asserted that he did not need assistance, and ordered the police officers to leave the courthouse, which they did. After Cabano demanded that snipers leave the nearby rooftop, Carpenter insisted upon their removal and Chief Windham complied.

The sheriff's department did not have a SWAT team in 1989. It also lacked a hostage negotiation policy. Five deputies attended one week of hostage negotiation training in 1988 and 1989, as a sixth deputy had in 1982. None had any actual experience, and only three of those trained were present during this crisis. The sheriff's department had no equipment to control communications in and out of Judge Ashmore's office, as the police department did. A telephone company employee assigned to the courthouse left the scene before successfully cutting off Cabano's contact with the outside world.

Carpenter and several of his deputies knew Cabano from his prior employment in the sheriff's department. Carpenter appointed Lt. Smith, the officer with the most recent negotiation training, as the chief negotiator. During the afternoon several civilians untrained in hostage negotiations spoke to Cabano. Before Lt. Smith arrived, two investigators from the D.A.'s office spoke with Cabano by telephone. During this conversation Cabano was upset and excited, speaking of the sexual abuse accusations against him. At one point, Carpenter spoke briefly to Cabano, who hung up on him. In the late afternoon, Cabano demanded to speak with his attorney, Alex Gonzalez. At Carpenter's order, Gonzalez was summoned to the courthouse and negotiated with Cabano. Meanwhile, Dr. James Greenstone, a leading hostage negotiation authority and instructor in North Texas, offered his services to Carpenter, but his offer was declined.

Telephone negotiations continued throughout the afternoon and early evening. The negotiators were located in an office of the courthouse which became crowded with non-essential persons. Cabano asked to speak to a reporter, and one was brought into the courthouse, although Cabano was not given an opportunity to talk to him. Two soft drinks were delivered to Cabano, but he refused to make any good faith gesture such as surrendering one of his weapons. Carpenter rejected Investigator Byrnes' suggestion that the courthouse air conditioning be shut down. At no time did Carpenter or his negotiators contact Hermosillo's family or the D.A.'s office to learn about the charges against Cabano.

By evening, Cabano became unresponsive, and began to leave the telephone in Judge Ashmore's office off the cradle for long intervals. After 9:00 p.m., Hermosillo expressed a desire to talk with her children on the telephone. Members of the sheriff's department considered these as dangerous signs. They did not have SWAT weapons and training for executing a dynamic entry into Judge Ashmore's chambers and did not do so. Around 9:40 p.m., Cabano shot and killed Hermosillo, then himself.

In the days following this tragedy, Carpenter responded to criticism by saying that he was proud of his department. He stated that a SWAT team was neither necessary nor useful under these circumstances. He also stated, regarding Cabano, "I wouldn't have believed he would have done it, but he did it."

Plaintiffs filed their section 1983 and tort claims in state court, and the defendants removed to federal district court. The complaint states that many of Carpenter's actions and decisions were wrongful, focusing on two in particular: the removal of Fort Worth police from the scene and the conduct of the negotiations. Plaintiffs claim that Carpenter deprived Hermosillo of her life by preventing the Fort Worth police SWAT and hostage negotiation teams from effectuating her release. Plaintiffs also claim that Carpenter caused Hermosillo's death by using incompetent hostage negotiators, including untrained civilians, rather than Fort Worth police negotiators or Dr. James Greenstone. ¹ Finally, plaintiffs argue that the sheriff failed to provide adequate training and equipment for a hostage situation, including SWAT weapons and communications equipment.

Plaintiffs contend that Carpenter acted negligently, with deliberate indifference and with conscious disregard for Hermosillo. They support these allegations with Dr. Greenstone's affidavit. Plaintiffs also argue that Carpenter's statements to the press following August 1, 1989 demonstrate these mental states. Plaintiffs claim that Carpenter's actions were motivated by his ego, his jealousy of the courthouse, and professional envy of the police department.

Carpenter's affidavit in support of his motion stated that at all relevant times Carpenter acted in his official capacity as sheriff in the performance of policing the courthouse. He stated that his "objective and intent on this occasion was to secure the release of the hostage unharmed, to apprehend the gunman, and to protect the safety of the general public and the peace officers involved." Plaintiffs moved to strike Carpenter's affidavit, on the basis that it improperly asserted inadmissible "expert" opinions without foundation, ultimate facts, and conclusions of law. ² The district court granted this motion. Thereafter, the district court denied defendant's summary judgment motion on the basis that it was not supported by affidavit as required by rule 56. Fed.R.Civ.P. 56. The district court also denied Carpenter's motion to dismiss, on the ground that it was "not well taken."

II

Denial of dismissal or summary judgment for want of qualified immunity fits within the small class of interlocutory decisions qualifying for appellate review. Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985). We may review the denial of a claim of qualified immunity "to the extent it turns on an issue of law." Id. at 530, 105 S.Ct. at 2817. Plaintiffs argue that we lack jurisdiction because there are disputed factual issues material to immunity. See Feagley v. Waddill, 868 F.2d 1437, 1441-42 (5th Cir.1989). We conclude that no genuine issue of fact relevant to resolving the immunity question remains.

Until recently, uncertainty in this Circuit clouded whether or not we had jurisdiction in these interlocutory appeals to decide whether plaintiffs had stated a constitutional claim. Compare Gagne v. City of Galveston, 805 F.2d 558, 559 n. 1 (5th Cir.1986) (holding that denial of Rule 12(b)(6) motion asserting qualified immunity is appealable), cert. denied, 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 764 (1...