Brothers v. Klevenhagen

• Decision Date: 01 August 1994
• Docket Number: No. 93-2453,93-2453
• Citation: 28 F.3d 452
• Parties: Shelia Marie BROTHERS, Individually and as Next Friend of Minor Children, Breint Brothers, Roland Brothers, III, and Danrica Brothers; and Roland J. Brothers, Sr., Plaintiffs-Appellants, v. Johnny KLEVENHAGEN, in His Official Capacity as Sheriff of Harris County, Texas, and Harris County, Texas, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 452

28 F.3d 452

Shelia Marie BROTHERS, Individually and as Next Friend of Minor Children, Breint Brothers, Roland Brothers III, and Danrica Brothers; and Roland J. Brothers, Sr., Plaintiffs-Appellants, v. Johnny KLEVENHAGEN, in His Official Capacity as Sheriff of Harris County, Texas, and Harris County, Texas Defendants-Appellees.

No. 93-2453.

United States Court of Appeals Fifth Circuit.

Aug. 1, 1994.

Gerald Birnberg, Matt E. Rubin, William, Birnberg & Andersen, Houston, TX, for plaintiffs-appellants.

Michael Paul Fleming, Asst. County Atty., Renuka V. Jain, Houston, TX, for defendants-appellees.

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

Before GARWOOD, SMITH and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Plaintiffs appeal a summary judgment in their excessive force suit against Harris County, Texas, and its sheriff. Finding no reversible error, we affirm.

I.

On November 5, 1988, Roland Brothers, Jr., a/k/a Michael Reed, was arrested by the Jersey Village Police Department for auto theft. Brothers spent a few hours in a cell at the Jersey Village police facility. Because there were outstanding felony and misdemeanor warrants for his arrest, the Jersey Village police turned Brothers over to Harris County sheriff's deputies Barry Rizk and Robert Nichols, who transported Brothers to the Harris County Jail. They handcuffed Brothers, restrained his legs, and placed him in the rear of the sheriff's vehicle.

When they arrived at the Harris County Jail, the deputies drove into the "sallyport" area behind the jail. ¹ As the deputies exited the car and proceeded to the area where they were required to check their weapons, they noticed that Brothers somehow had managed to remove the handcuffs and leg restraints and was running from the car toward the entrance to the sallyport that they had just entered. The automatic door to the sallyport entrance was in the process of coming down.

Fearing that Brothers would escape, the deputies several times shouted at him to stop. As Brothers attempted to crawl under the automatic door, the deputies drew their weapons and fired twelve times. Brothers died from gunshot wounds.

Family members filed suit in state court pursuant to the Texas Wrongful Death Statute and 42 U.S.C. Sec. 1983 against the county, against Johnny Klevenhagen, in his official capacity as sheriff, and against Rizk and Nichols. The defendants removed the action to federal court, and Rizk and Nichols were voluntarily dismissed by plaintiffs.

The parties filed cross-motions for summary judgment. Both deputies testified in depositions that they shot Brothers in order to prevent his escape. They knew that he was unarmed, and they had no reason to believe that he was a danger to them or anyone else. It is undisputed that the deputies acted in accordance with the official policy of the sheriff's department, based upon TEX.PENAL CODE Sec. 9.52, which authorizes the use of deadly force to prevent escape from the jail without regard to whether the person is dangerous. In granting summary judgment for the defendants, the district court held that the evidence supported the conclusion that the force used under the circumstances was necessary to prevent Brothers's escape and was not unconstitutionally unreasonable.

II.

A.

Plaintiffs contend that the district court erred in granting summary judgment to defendants on their Sec. 1983 claim. We review a grant of summary judgment de novo. Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.1992). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). The party seeking summary judgment carries the burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). After a proper motion for summary judgment is made, the non-movant must set forth specific facts showing that there is a genuine issue for trial. Hanks, 953 F.2d at 997.

We begin our determination by consulting the applicable substantive law to determine what facts and issues are material. King v. Chide, 974 F.2d 653, 655-56 (5th Cir.1992). We then review the evidence relating to those issues, viewing the facts and inferences in the light most favorable to the non-movant. Id. If the non-movant sets forth specific facts in support of allegations essential to his claim, a genuine issue is presented. Celotex, 477 U.S. at 327, 106 S.Ct. at 2554.

B.

The threshold issue in this case is which constitutional standard for excessive force applies to an individual escaping from custody during transport from one holding cell to another. The plaintiffs argue that the Fourth Amendment governs this case and that the Supreme Court's decision in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), compels a judgment in their favor.

In Garner, the Court held that the use of deadly force to prevent a felony suspect's escape was unconstitutional unless the officer had probable cause to believe that the suspect posed a significant threat of death or serious physical injury to the officer or others. Id. at 3, 105 S.Ct. at 1697. The Court held a Tennessee statute unconstitutional to the extent it authorized such use of deadly force. Id. at 11, 105 S.Ct. at 1701. The suspect in Garner was encountered in the backyard of a house that officers were investigating for a reported burglary. The officer shot the suspect as he attempted to escape over a fence. The officer stated that he was reasonably sure that the suspect was not armed and that he shot him to prevent his escape. Id. at 3-4, 105 S.Ct. at 1697-1698.

The Court stated that apprehension by the use of deadly force was a seizure subject to the reasonableness requirement of the Fourth Amendment, under which a court must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. Id. at 7-8, 105 S.Ct. at 1699-1700. ²

This argument would be persuasive had Brothers been a suspect, but at the time of his attempted escape he was in custody. A pretrial detainee receives the protection of the Due Process Clause of the Fourteenth Amendment. Valencia v. Wiggins, 981 F.2d 1440, 1443-45 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993). Under Valencia, the appropriate inquiry is "whether the measure taken inflicted unnecessary and wanton pain and suffering" and " 'whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm.' " Id. at 1446 (citing Hudson v. McMillian, --- U.S. ----, ----, 112 S.Ct. 995, 998, 117 L.Ed.2d 156 (1992)).

In Graham v. Connor, 490 U.S. 386, 395 n. 10, 109 S.Ct. 1865, 1871 n. 10, 104 L.Ed.2d 443 (1989), the Court stated that it "ha[d] not resolved the question whether the Fourth Amendment continues to provide individuals with protection against the deliberate use of excessive force beyond the point at which arrest ends and pretrial detention begins." ³ But Valencia is unambiguous as to when the protection of the Fourth Amendment ends:

We do not believe that the Fourth Amendment provides an appropriate constitutional basis for protecting against deliberate official uses of force occurring ... after the incidents of arrest are completed, after the plaintiff has been released from the arresting officer's custody, and after the plaintiff has been in detention awaiting trial for a significant period of time.

Valencia, 981 F.2d at 1443-44.

The court cited three reasons for reaching this conclusion. First, the text of the Fourth Amendment--prohibiting unreasonable "seizures"--does not support its application to a post-arrest encounter. Second, the Supreme Court has refused to apply the Fourth Amendment to protect inmates after incarceration. And third, Graham and Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (refusing to concede that Fourth Amendment applied to pretrial detainee subjected to body cavity search), dictate that the Due Process Clause is the appropriate constitutional basis for pretrial detainee excessive force suits.

Applying the Valencia analysis to the facts of this case, we conclude that Brothers was a pretrial detainee. First, the incidents of arrest were complete. Second, Brothers was released from the arresting officer's custody. And third, Brothers already had been in detention.

Valencia indicates that the Fourth Amendment applies more appropriately to the actual incident of arrest. Although the protection may extend beyond the time of initial apprehension, see 981 F.2d at 1444 n. 10, Brothers had been arrested earlier in the day, had been processed by the Jersey Village Police Department, and had spent several hours in jail. He was being transported to the county jail, his hands cuffed and his legs restrained. It is difficult to imagine how Brothers could not be considered a detainee at that point. If the incident had occurred several hours earlier, while Brothers was a resident of the Jersey Village Police Department jail, he surely would have been considered a pretrial detainee. The fact that he was being transported to the Harris County jail does not change his status.

Plaintiffs argue that the apprehension of Brothers paralleled the apprehension of the suspect in Garner. According to this logic, however, anytime a detainee escapes, requiring re-apprehension by law enforcement officials, the Fourth Amendment comes back into play because the individual is "seized." See id. at 1444 ("[T]he concept of 'seizur...