Carnaby v. City of Houston

• Decision Date: 22 March 2011
• Docket Number: No. 09–20825.,09–20825.
• Citation: 636 F.3d 183
• Parties: Susan CARNABY, Individually and as Representative of the Estate of Roland Carnaby, Deceased, Plaintiff–Appellant,v.CITY OF HOUSTON; Charles Foster, HPD Officer; Andrew J. Washington, HPD Officer, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

636 F.3d 183

Susan CARNABY, Individually and as Representative of the Estate of Roland Carnaby, Deceased, Plaintiff–Appellant,

v.CITY OF HOUSTON; Charles Foster, HPD Officer; Andrew J. Washington, HPD Officer, Defendants–Appellees.

No. 09–20825.

United States Court of Appeals, Fifth Circuit.

March 22, 2011.

Randall Lee Kallinen (argued), Law Office of Randall L. Kallinen, Houston, TX, for Carnaby.Andrea Chan, Sr. Asst. City Atty. (argued), City of Houston Legal Department, Houston, TX, for Defendants–Appellees.Katharine D. David, Sandy Dian Hellums, Michael Anthony Stafford, Casey T. Wallace, Haynes & Boone, L.L.P., Houston, TX, for City of Houston.L.A. Teehan, City of Houston Legal Department, Houston, TX, for Foster and Washington.Appeal from the United States District Court for the Southern District of Texas.Before JOLLY, HIGGINBOTHAM and SMITH, Circuit Judges.JERRY E. SMITH, Circuit Judge:

Plaintiff Susan Carnaby (“Mrs. Carnaby”), individually and as a representative of the estate of her husband Roland Carnaby (“Carnaby”), appeals a summary judgment for defendant City of Houston and Police Officers Charles Foster and Andrew Washington. Finding no error, we affirm.

I.

In April 2008, Carnaby was pulled over for speeding by a Houston Police Department (“HPD”) officer, Charles Starks.¹ During the traffic stop, Carnaby provided Starks with identification and stated that he was a “CIA Agent.” Starks was suspicious of that claim for several reasons and returned to his squad car to confirm Carnaby's credentials. Starks ran a background check on Carnaby, discovering that he had a concealed handgun license and a 1992 arrest for disorderly conduct, and questioned him to find other ways to check out his story. While Starks was still in his vehicle, Carnaby exited his car, pointed to his cell phone, and got back inside his car.

Starks contacted a sergeant at HPD's Criminal Investigations Command to see whether there was a way to confirm Carnaby's status as a CIA agent. The sergeant told Starks that he should write Carnaby a ticket and file a report detailing the unique circumstances, but Starks said he could not write a ticket if Carnaby was a federal agent.² The sergeant then asked to speak with Carnaby over the phone. After doing so, the sergeant told Starks he would call back shortly, and he did so but gave no further instructions. At the same time, Carnaby again exited his vehicle, pointed to his cell phone, and reentered the car.

Starks next contacted the police impersonator squad in the Major Offenders Division (“MOD”) of HPD, inquiring whether Carnaby could be charged with anything for falsely claiming to be a CIA agent; MOD did not answer Starks's question immediately but said someone would call him back.

Foster arrived to assist Starks; with Foster present, Starks decided to approach Carnaby again. Carnaby told Starks that he had a friend who was a member of HPD, Frank Zavala, on the phone. Zavala told Starks that he believed Carnaby was a CIA agent but had never confirmed that information. Starks questioned Zavala about Carnaby's handgun license, criminal history, and dealings with HPD and told Zavala that Carnaby would eventually be released. After the conversation with Zavala, Starks and Foster returned to their vehicles. Zavala called Carnaby back immediately and told him that Starks planned on releasing him.

MOD called Starks back and asked what offense Carnaby had committed. Starks informed MOD of Carnaby's speeding but stated that “I can find another traffic violation somewhere. Let me talk to him a little bit. I'm sure I can find another violation.”

While Starks was on the phone with MOD, Carnaby was on the phone with Dennis Franks with the FBI. Franks volunteered to speak with the police officers on the scene, then heard an officer tell Carnaby to step out of the vehicle right before the phone connection was lost.

Starks and Foster had approached Carnaby's vehicle from either side and requested Carnaby to step out; instead, he fled, leading Starks, Foster, and other officers on a car chase that lasted less than fifteen minutes. During the chase, Foster reported over the radio that Carnaby had thrown an object from the car. (That is visible on the video, but the object was never recovered.) Carnaby eventually pulled to the side of the road, ending the pursuit. At the time, the officers did not know why he had stopped, but they would later discover that he had run out of gas.

Because of Carnaby's abrupt stop, a police vehicle driven by Washington was parked in front of Carnaby's car. The vehicles driven by Foster and Starks were parked a few feet behind Carnaby. After the chase ended, Foster and Washington approached the passenger side of the vehicle, while Starks approached the driver's side. Starks unsuccessfully tried to open the door and knocked on the window, receiving no response. He then retreated a few feet and shouted at Foster to “get back, get back.”

Carnaby lowered the passenger window about four inches and spoke with Foster and Washington for about thirty seconds. Although the windows were tinted, Foster could see Carnaby talking on his cell phone and switching the phone back-and-forth between his hands. He then rolled his window up.

Foster pulled out his baton and began smashing the passenger-side window while Washington drew his gun and aimed at the window. After a couple hits on the window, Carnaby opened the driver's door. Several officers shouted at him “On the ground!” As the door opened, Washington came around the front of the vehicle toward the driver's side. With the driver's door fully open, Carnaby leaned toward the floor of the car, with his head in the gap between the floor and the open door. The officers could not see Carnaby's hands at that instant.

Washington continued his approach to the driver's door as Carnaby motioned to exit the vehicle. Carnaby, while exiting, began to swing his hands—one of which was grasping an object—around toward Washington. Seeing that, Foster fired his weapon through the car and hit Carnaby in the back. Washington also fired an instant later, but his round struck the driver's door.

Carnaby immediately dropped to the ground and was handcuffed and frisked for weapons. He did not have a weapon on his person, but the officers recovered three guns from his vehicle, one of which was within reach of the driver's seat. The police also recovered a black and grey cell phone on the ground, near Carnaby's body. Carnaby was rushed to the hospital but was declared dead in the emergency room.

II.

Mrs. Carnaby sued the city, Foster, and Washington under 42 U.S.C. § 1983 for use of excessive force, denial of medical treatment, conspiracy, failure to train, and state tort claims. On the excessive-force claim, the district court granted the officers' motions for summary judgment, deciding that qualified immunity was appropriate because the use of deadly force was reasonable. The court also granted the city's motion for summary judgment, concluding that the city cannot be liable if the officers did not violate the Fourth Amendment. Furthermore, the court found, if it were to reach the merits on the municipal-liability claim, that the city did not fail to train or discipline its officers. The court also dismissed the remaining state-law claims. Mrs. Carnaby appeals only the summary judgment on the qualified-immunity and failure-to-train claims.

III.

We review a summary judgment de novo, “using the same standard as that employed by the district court under Rule 56.” Kerstetter v. Pac. Scientific Co., 210 F.3d 431, 435 (5th Cir.2000). Summary judgment is warranted “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.” Fed.R.Civ.P. 56(a). There is no genuine issue for trial “[i]f the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party.” Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir.1999). We review evidence in the light most favorable to the nonmoving party, but conclusional allegations and unsubstantiated assertions may not be relied on as evidence by the nonmoving party. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc).

Although we review evidence in the light most favorable to the nonmoving party, we assign greater weight, even at the summary judgment stage, to the facts evident from video recordings taken at the scene. Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). A court of appeals need not rely on the plaintiff's description of the facts where the record discredits that description but should instead consider “the facts in the light depicted by the videotape.” Id. at 381, 127 S.Ct. 1769.

A.

Mrs. Carnaby alleges that the use of deadly force violated her husband's Fourth Amendment right to be free from unreasonable seizure. To prevail on a Fourth Amendment excessive-force claim, a plaintiff must establish: (1) an injury; (2) that the injury resulted directly from the use of excessive force; and (3) that the excessiveness of the force was unreasonable. Freeman v. Gore, 483 F.3d 404, 416 (5th Cir.2007). Qualified immunity is appropriate unless the defendant violated a clearly established constitutional right. Ontiveros v. City of Rosenberg, 564 F.3d 379 (5th Cir.2009).

Apprehension by the use of deadly force is a seizure, see Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), and Carnaby's death was an injury caused by the deadly force employed, so the only issue is whether the use of that deadly force was unreasonable. To gauge the objective reasonableness of the force, “we must balance the amount of force used against the need for force.” Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir.2008) (internal quotation marks and citation omitted). The “[u]se of deadly force is not unreasonable when an officer would have reason to believe the...