Cass v. City of Abilene

• Citation: 814 F.3d 721
• Decision Date: 24 February 2016
• Docket Number: No. 14–11134.,14–11134.
• Parties: Tammy CASS, Individually, and as Executor of the Estate of Marcus Cass, Deceased; Matthew Cass; Jerry Cass ; Kyle Cass; Nathan Cass, Plaintiffs–Appellants, v. CITY OF ABILENE; Chief Of Police Stan Standridge; Chris Smith, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

814 F.3d 721

Tammy CASS, Individually, and as Executor of the Estate of Marcus Cass, Deceased; Matthew Cass; Jerry Cass ; Kyle Cass; Nathan Cass, Plaintiffs–Appellants,
v.
CITY OF ABILENE; Chief Of Police Stan Standridge; Chris Smith, Defendants–Appellees.

No. 14–11134.

United States Court of Appeals, Fifth Circuit.

Feb. 24, 2016.

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Chad Wilson Dunn, Esq. (argued), Brazil & Dunn, Houston, TX, Richard Alan Grigg, Attorney, Spivey & Grigg, L.L.P., Austin, TX, for Plaintiffs–Appellants.

Kelley Kemper Messer, Esq. (argued), Assistant City Attorney, Stanley Earl Smith, Esq., City Attorney's Office, Abilene, TX, for Defendants–Appellees.

Before DAVIS, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:

Officer Chris Smith, a detective with the Abilene Police Department (APD), fatally shot Marcus Cass during the execution of a warrant to collect certain business records of Abilene Gold Exchange, where Cass worked. Cass's surviving family members (Appellants) sued the City of Abilene, along with Smith and Chief of Police Stan Standridge in their individual capacities, alleging retaliation in violation of the First Amendment and various Fourth Amendment violations. Appellants appeal the district court's summary judgment order dismissing their excessive force and retaliation claims against Smith and Standridge on the basis of qualified

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immunity. Because Appellants produced no summary judgment evidence that Standridge was involved with the execution of the warrant or Cass's death, we AFFIRM summary judgment on all claims against him. Although a reasonable jury could find that the manner in which Smith executed the warrant was unconstitutional and neither the district court nor the parties has addressed whether the violation was clearly established in the law, we AFFIRM summary judgment on Appellants' Fourth Amendment claim as it relates to the execution of the warrant because Appellants have not shown that Smith violated clearly established law. We AFFIRM summary judgment on Appellants' remaining claims against Smith because Appellants have not raised fact issues to support constitutional claims for retaliation or for excessive force as it relates to Smith's shooting of Cass.

I.

A.

Until his death on December 13, 2012, Marcus Cass—together with Charles Camp—managed Abilene Gold Exchange, one of about eight similar businesses in Abilene, Texas that purchased jewelry and precious metals for cash. Cass and Camp maintained firearms at several easily accessible locations in the store, and signs on the front door warned that the employees were armed. Although Camp had a thirty-year-old felony conviction for possessing marijuana, Cass had no criminal record and could legally possess firearms. Abilene Gold Exchange had cooperated with APD in solving past crimes, and on several occasions APD officers had walked into the store and spoken with its employees without incident.

Nevertheless, multiple APD officers testified in depositions that Camp and Cass displayed an "anti-police" attitude, and particularly that they were unhappy with the burden of complying with state and local law requiring reporting of Abilene Gold Exchange's purchases. Early in 2012, APD began developing a proposed city ordinance that would require purchasers of precious metals to—among other things—hold purchased items for at least eleven days to give officers time to recover stolen items. A week before Cass's death, the Abilene City Council held a public meeting to discuss the proposed ordinance. Chief of Police Stan Standridge was the primary proponent of the ordinance at the meeting. Cass spoke in opposition to the eleven-day holding requirement, as did Ronald DeLauney, the owner of another gold exchange store. Both Cass and DeLauney emphasized that because the price of gold is highly volatile, an eleven-day holding requirement could have severe consequences when the price dropped after they purchased items. Cass also stated that APD had earlier told him that the ordinance was already in effect, which he found "a little disturbing." DeLauney testified in his declaration that "Chief Standridge became visibly angry during Marcus Cass' testimony." After hearing from Standridge, Cass, DeLauney, and others, the city council narrowly adopted the ordinance with a compromise holding period of seven days.

Five days later, Smith, a detective newly assigned to APD's property crimes unit, called Abilene Gold Exchange as part of his investigation into a recent jewelry theft. Smith testified in his deposition that Camp answered the phone, Smith identified himself and told Camp what he was looking for, including the names of some individuals Smith was investigating, and Camp "was obviously upset, got upset on the phone, [and] started ranting and yelling at [Smith]." Smith testified that this reaction was unusual and made him suspicious, and that when Smith discussed it with his colleagues, they informed him that Abilene Gold Exchange should have

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been reporting its purchases in Leads Online, an online database used by purchasers of fine metals to satisfy the reporting requirements of the Texas Occupations Code.¹ Smith investigated Abilene Gold Exchange's recent Leads Online reporting and discovered that no new purchases had been entered during the prior three weeks and that some earlier transactions had not been reported within forty-eight hours as required by law.

Based on his research, Smith suspected that Abilene Gold Exchange might be fencing stolen property and that he had probable cause to obtain a warrant for the reporting violations. On December 12, the day after he spoke with Camp, Smith submitted an affidavit to a state district judge and obtained a warrant authorizing him to search Abilene Gold Exchange's physical and electronic records for evidence pertaining to the reporting violations.

The next morning, the property crimes unit met to discuss executing the warrant, as is customary in APD. Although Smith's initial plan had been to simply walk in with another officer and serve the warrant, other officers who "were more familiar with the Gold Exchange" raised concerns about officer safety due to Cass and Camp's "anti-police" attitude, the presence of readily-accessible weapons in the store, and the possibility that Cass and Camp might be "hiding something" that would cause them to shoot police officers.² Camp's felony conviction was also discussed as a factor to consider. Lieutenant Gary Bone, the head of the Criminal Investigation Division which included the property crimes unit, decided that for the safety of the officers, a team in body armor led by a uniformed officer would enter the business quickly with guns drawn to secure the premises and execute the warrant.

The available officers of the property crimes unit, led by Sergeant Kenneth Robinson and joined by patrol officer Tim Pipes, caravanned to Abilene Gold Exchange and parked down the street, out of sight of the business. Pipes was in his regular police uniform, and the other three officers who would enter the business were wearing street clothes under bullet-proof vests. Smith's vest was solid black; the only indication of his identity as a police officer was his badge, which was attached to his belt on Smith's right side. Smith was also wearing dark sunglasses, which he did not remove upon entering the building. Unlike Smith, the other two officers on the entry team, Chris Collins and Chris Adams, had "POLICE" written in large white letters across their bullet-proof vests. Collins carried an assault rifle and the other officers entered with drawn handguns. Other officers waited at the back of the building.

The raid was captured on Abilene Gold Exchange's three video cameras. Pipes

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entered first, immediately walking to the counter in the center of the room and pointing his gun toward Camp, who was seated in a small office behind the counter on the officers' right. Smith entered second, walking around the counter along the left-most wall toward a second back office in which Cass was located, to the left of Camp's office from the officers' point of view. Adams and Collins followed Smith. As Smith approached Cass's office, Cass was walking toward the doorway from inside the back room. It appears from the video recording that the officers and Cass could not see each other, but that Cass heard someone enter and was walking to the doorway to greet the person. As Smith walked forward along the wall, his drawn gun, which was extended in front of him, crossed the open doorway and was the first thing Cass saw. At that point, Cass began to draw his own gun, which was holstered at his right hip. Smith continued walking forward, and as he came to the doorway, he saw Cass drawing his gun and raising it toward Smith. Because Smith was not wearing a vest marked "POLICE" and his badge was on his right side opposite Cass, nothing Cass could see indicated that Smith was a police officer; Cass saw only a gunman dressed in black body armor and dark sunglasses. Smith stepped to the right and fired twice, causing Cass to drop his gun and slump to the floor. The entire sequence occurred rapidly;...