Bright v. City of Killeen
| Decision Date | 31 March 2021 |
| Docket Number | 6:20-CV-000431-ADA-JCM |
| Citation | 532 F.Supp.3d 389 |
| Parties | Diane Reed BRIGHT, Individually, and as the Personal Representative for the Estate of the Decedent, James Scott Reed, Plaintiff, v. The CITY OF KILLEEN, TEXAS; Anthony R. Custance; Richard A. Hatfield, Jr.; Fred L. Baskett; and Christian Suess, Defendant. |
| Court | U.S. District Court — Western District of Texas |
Daryl K. Washington, Washington Law Firm, P.C., Dallas, TX, for Plaintiff.
Joe Rivera, Roy Lee Barrett, Naman Howell Smith & Lee, PLLC, Waco, TX, for Defendants City of Killeen, Richard A. Hatfield, Jr., Fred L. Baskett, Christian Suess.
Charles D. Olson, Michael W. Dixon, Haley & Olson, PC, Waco, TX, for Defendant Anthony R. Custance.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT CUSTANCE'S MOTION TO DISMISS
Before the Court is Defendant Custance's Motion to Dismiss pursuant to Fed. R. Civ. P 12(b)(6), which was filed on July 7, 2020. Def.’s Mot., ECF No. 20. Plaintiff filed her Response on July 24, 2020. Pl.’s Resp., ECF No. 24. Custance filed his Reply on July 30, 2020. Def.’s Reply, ECF No. 27. Plaintiff filed her Sur-Reply on July 24, 2020. Pl.’s Sur-Reply, ECF No. 33. The Court has considered the Motion, all relevant filings, and the applicable law. For the reasons set forth below, the Court finds that the Defendant Custance's Motion to Dismiss hould be GRANTED in part and DENIED in part.
Plaintiff Diane Reed Bright, mother of the decedent, brings this claim as the Personal Representative for the estate of James Scott Reed, the decedent. Pl.’s Compl., ECF No. 1 at 116. Had the decedent survived, he would have this right of action for wrongful conduct against the Defendants. Id. at 118. Plaintiff brings this claim against The City of Killeen, Texas, and Killeen Police Department (KPD) SWAT Officers Anthony R. Custance, Richard A. Hatfield, Jr. Fred L. Baskett, Christian Suess. Id. at 1. Specially Plaintiff alleges Defendant Custance's actions violated Reed's constitutional rights pursuant to the Fourth Amendment. Id. at 76. Furthermore, Plaintiff alleges that Defendants’ Custance, Hatfield, Baskett, and Suess conspired to deprive Reed of equal protection of the law pursuant to 42 U.S.C. § 1985(3). Id. at 105. Lastly, Plaintiff alleges that all the defendants conspired to deprive Reed of his constitutional rights pursuant to 42 U.S.C. § 1983. Id. at 110.
On February 27, 2019, around 6:00 a.m., eighteen KPD SWAT officers, including Defendant Custance, executed a no-knock narcotics warrant at Reed's apartment in Killeen, Texas. ECF No. 1 at 17. At the no-knock narcotics search warrant's execution, an officer set a charge at the front door. Id. at 21. A window team officer used a window breaking tool to break Reed's bedroom window and initiate a Flash Noise Diversion Device. Id. Officers fired numerous shots and consequently pronounced Reed dead on the scene from gunshot wounds. Id. at 22. The autopsy report showed that Reed suffered traumatic injuries to his vital organs from a single bullet entering under his right armpit, traveling through both lungs, and severing his aorta. Id.
After the raid, KPD determined who shot at Reed based upon the officers’ own admissions or denials during brief interviews. Id. at 23. During his interview, Custance denied shooting his firearm at Reed. Id.
At the request of the KPD, the Texas Ranger Department performed an investigation at approximately 8:00 a.m. on the day of the shooting. Id. at 24. Ranger Adam Russell was the lead investigator assisted by Rangers Justin Duck and Randy Lewis. Id. KPD Sergeant Wilts told Ranger Russell that KPD SWAT officers killed Reed after Reed produced a handgun and opened fire on the officers. Id. at 25. The Sergeant told Russell that KPD SWAT members Hatfield and Baskett shot at Reed. Id.
Ranger Duck conducted an in-custody recorded interview with Eva Marie Brocks, who was in the bedroom with Reed during the police raid. Id. at 26. During this interview directly following Reed's death, Brocks stated she did not see whether Reed shot at the officers or not. Id. In this interview, Brocks also stated that someone shot at Reed's apartment two weeks before the raid, so he had obtained a small grey gun and a shotgun. Id. In a written statement outside the scene of the police raid, Brocks confirmed that she believed Reed had not fired any shots. Id. at 27. Brocks also indicated in this written statement that she did not believe Reed would have been able to fire any shots because of how fast the unannounced shooting commenced. Id.
During his initial walkthrough, Ranger Russell determined that there was likely a third KPD SWAT officer who shot at Reed based on his observation of ten bullet defects under the bathroom window. Id. at 28. Russell determined that whomever shot these ten bullets was shooting from outside into the residence based on a "bullet wipe." Id. A bullet wipe is the dark area around the margins of a bullet hole caused by the bullet lubricant, lead, or other possible material used to identify an entry site of a bullet. Id. Russel found that the defects’ angle seemed to track towards the west side broken window of Reed's master bedroom. Id. During his investigation, Ranger Duck marked fired cartridges behind the Reed residence on the north side. Id. at 30. The Rangers associated the ten defects that Russell found during his initial walkthrough with these cartridges. Id. After examining of the cartridges, Russell determined they were the same manufacture and caliber issued to the KPD SWAT team. Id.
Russell then informed the KPD Sergeants Manges and Wilts that a third KPD SWAT member had shot at Reed and was covering it up. Id. The Sergeants recalled the KPD SWAT team for a meeting with Russell at 6:30 p.m. on the day of the police raid. Id. at 31. Russell relayed the evidence at the scene to the entire raid team, which showed that a third KPD SWAT member had shot at Reed a minimum of ten times. Id. During the meeting, Custance admitted he did shoot at the back of the Reed residence. Id. at 32. He alleged that he began shooting when he saw muzzle flashes and heard gunfire. Id. At this time, Russell took possession of and inspected Custance's rifle, an HK-416D assault rifle. Id.
The Defendants each had five to seven days before being required to give written statements. Id. at 33. Allegedly a small gray .380 Cobra pistol was found near the right hand of Reed's body. Id. When asked, the Defendants stated that the initial gunfire was from Reed using a small arms pistol or handgun. Id. Officer Hatfield alleges he heard a pop from a handgun in the direction of Reed's window and that he saw a right hand and arm holding a handgun coming out of the bedroom window pointed at Officers Baskett and Suess. Id. at 34. Officer Baskett and Suess both claim they observed a black arm holding a handgun out of the bedroom window. Id. at 39–40. Officer Swan, a member of the window team, did not claim to see Reed's hand or arm come out of the window shooting from a handgun. However, Swan did state that he heard several gunshots "go off at the window." Id. at 42.
During the raid, Custance's role was "to watch for any movement dangers that may have presented themselves that would disrupt the operations" at the northeast corner of the house. Id. at 36. After hearing shots and ‘shots fired’ over the radio, Custance moved to the north side of the property, approximately thirty to forty feet away from the house, a position not assigned to him. Id. Custance alleges he saw a muzzle flash and suspected it was from someone inside the room shooting towards the window team. Id. at 37. He then fired several rounds of his rifle in the direction he allegedly saw the muzzle flashes coming from. Id.
The Ranger investigation revealed that by the end of April 2019, Custance had resigned from the KPD. Id. at 45. In June 2019, the Bell County grand jury presented evidence that Custance lied, concealed, and altered evidence during the Reed investigation. Id. The grand jury entered a true bill of tampering with physical evidence against Custance, and he pled guilty to the felony of tampering with physical evidence. Id.
The Rangers investigation found thirteen 5.56 fired cartridges, eight 9mm fired cartridges, and one 9mm brass fired cartridges recovered. Id. at 46. Except for the one brass cartridge, these findings are consistent with Baskett's handgun and rifles fired by the Custance and Hatfield. Id. Ranger Russell's analysis found a jam in Reed's semi-automatic .380 Cobra handgun's ejection port, and the magazine in the handgun filled to capacity with seven rounds of .380 ammunition. Id. at 48. While the Rangers analysis found Reed's DNA on the gun, there was no finding of fired .380 brass cartridges during their investigation of the scene. Id. at 50–51. Also, the analysis of Gun Shot Residue collected from Suess’ face was inconclusive about where it came from. Id. at 52.
A. Failure to State a Claim 12(b)(6)
Motions to dismiss under Rule 12(b)(6) "are viewed with disfavor and are rarely granted." Lormand v. U.S. Unwired, Inc. , 565 F.3d 228, 232 (5th Cir. 2009). A complaint will not be dismissed merely because it contains an imperfect statement of the legal theory supporting the claim asserted. Johnson v. City of Shelby , 574 U.S. 10, 135 S. Ct. 346, 346, 190 L.Ed.2d 309 (2014). Federal pleading rules call for "a short and plain statement of the claim showing that the pleading is entitled to relief." Id. (citing Fed. R. Civ. P. 8(a)(2) ).
The ultimate question in a motion to dismiss is whether the complaint states a valid claim when it is viewed in the light most favorable to the plaintiff. Great Plains Trust Co. v. Morgan Stanley Dean Witter , 313 F.3d 305, 312 (5th Cir. 2002). Two primary principles guide the plausibility analysis: courts must liberally construe the complaint in favor of the...
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