Cole v. Hunter

• Citation: 497 F.Supp.3d 172
• Decision Date: 29 October 2020
• Docket Number: Civil Action No. 3:13-cv-02719-O
• Parties: Randy COLE and Karen Cole, individually and as next friends of Ryan Cole, Plaintiffs, v. Michael HUNTER et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

497 F.Supp.3d 172

Randy COLE and Karen Cole, individually and as next friends of Ryan Cole, Plaintiffs,

v.Michael HUNTER et al., Defendants.

Civil Action No. 3:13-cv-02719-O

United States District Court, N.D. Texas, Dallas Division.

Signed October 29, 2020

J. Mark Mann, Mann Tindel Thompson, Henderson, TX, R. Jack Ayres, Jr., Law Offices of R. Jack Ayres Jr., Addison, TX, Christopher S. Ayres, Ayres Law Office PC, Dallas, TX, for Plaintiffs.

James T. Jeffrey, Jr., Law Offices of Jim Jeffrey, Arlington, TX, Norman Ray Giles, William S. Helfand, Lewis Brisbois Bisgaard & Smith LLP, Houston, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

Reed O'Connor, UNITED STATES DISTRICT JUDGE

Before the Court are Defendants Carl Carson, Martin Cassidy, City of Sachse, and Michael Hunter's Motion for Summary Judgement, Brief/Memorandum in Support, and Appendix in Support (ECF Nos. 220–22), filed June 8, 2020; Plaintiffs Karen Cole and Randy Cole's Response, Brief/Memorandum in Support, and Appendix in Support (ECF Nos. 264–66), filed September 29, 2020; and Defendants’ Reply (ECF No. 273), filed October 13, 2020. Having considered the motion, briefing, appendices, record, and applicable law, the Court finds that Defendants’ Motion should be and is hereby GRANTED in part and DENIED in part .

I. BACKGROUND

Ten years have passed since the underlying tragic encounter between Defendant Sachse Police Officers Michael Hunter ("Hunter"), Martin Cassidy ("Cassidy"), and Carl Carson ("Carson") (collectively, "the Officers") and Plaintiff Ryan Cole ("Cole"), which culminated in the Officers firing their weapons at Cole, leaving him with permanent injuries, including cognitive impairment, partial paralysis, and other serious mental and physical disabilities.

On September 21, 2012, Cole's father Randy Cole and his mother Karen Cole, individually and as next friends of Cole, brought this suit alleging four distinct constitutional deprivations under 42 U.S.C. § 1983 (2012): (1) use of excessive force in violation of the Fourth Amendment against Hunter and Cassidy (Count One); (2) maintenance of an official policy permitting use of excessive force in violation of the Fourth Amendment against the City (Count Two); (3) constitutionally inadequate policies, training, or supervision in violation of the Fourth Amendment against the City (Count Three); and (4) fabrication of evidence in violation of the Fourth and Fourteenth Amendments against Hunter, Cassidy, and Carson (Count Four). See Am. Compl. 14–29, ECF No. 67. For eight years, the parties have litigated the merits of Plaintiffs’ claims and the Officers’ assertions of their entitlement to qualified immunity at both the motion-to-dismiss and summary-judgment stages before this Court, the Fifth Circuit, and the Supreme Court.¹ The facts material to the present motion, viewed in the light most favorable to the non-movant Plaintiffs at this stage, are as follows:

On October 25, 2010, around 10:30 A.M., the Officers arrived at a tree line on Murphy Road in pursuit of Cole—a juvenile who had reportedly been wandering along nearby train tracks with a gun in hand. There, "unaware of the Officers’ presence[,]" Cole backed out from the tree line in front of Hunter and Cassidy, holding his handgun to his own head. Cole v. Carson , 935 F.3d 444, 448–49 (5th Cir. 2019) (en banc ) (hereinafter " Cole en banc "). "[Cole] never pointed a weapon at the Officers," and "never made a threatening or provocative gesture towards [the] Officers." Id. at 449. "[Cassidy and Hunter] had the time and opportunity to give a warning" for Cole to disarm himself. Id. However, they provided "no warning ... that granted [Cole] a sufficient time to respond," such that Cole "was not given an opportunity to disarm himself before he was shot." Id. Hunter and Cassidy then shot Cole multiple times. Hunter's first shot struck Cole as he was facing away from the Officers at a 90-degree angle. Following impact of the first shot, Cole's body turned or fell towards Hunter, who shot Cole a second time. As an involuntary reflex to being shot, Cole pulled the trigger of his own gun, shooting himself in his temple.

Immediately following the shooting, the Officers remained together at the scene while members of the Garland Police Department ("Garland PD") arrived. Cassidy and Hunter later returned to the Sachse Police Department ("Sachse PD") headquarters together, in violation of Garland PD's standard procedure for separating witnesses. Later that day, the Officers each provided statements to investigators (the "Statements"), now in dispute as allegedly fabricated evidence. Carson stated in relevant part:

As [Cassidy and I] were about 30-40 feet from Officer Hunter, the suspect came out of the tree line almost standing directly in front of Officer Hunter. I was standing adjacent behind Lt. Cassidy and I was directly behind Officer Hunter. Then I heard Officer Hunter make a command to the suspect about showing his hands or dropping his guns. After the command was made, I heard gunshots and saw Officer Hunter and Lt. Cassidy firing at the suspect. I did not fire any shots of any kind due to a crossfire issue where my position was. I also could not see what the suspect was doing before the shots were fired due to the fact that he was standing directly in front of Officer Hunter, which put him out of my view. As the suspect was going down from the gunfire, I did see him fall with a gun in his hand.

Defs.’ App. 25, ECF No. 222. Cassidy stated in relevant part:

I started walking to Officer Hunter when I saw the suspect, matching the clothing and description that we had been given earlier, emerge from the tree line, moving backward, looking back at the railroad tracks (through the tree line) with a gun in his hand aimed at his own head. I could hear Officer Hunter[’]s voice yell, but could not tell what was said due to the high winds; at that point[,] the suspect turned toward Officer Hunter and pointed the gun at him. At that point I was in immediate fear for the life of Officer Hunter and myself[.] I fired three rounds at the suspect[,] and the suspect fell[.] [H]e fell on his left side, facing away from myself and Officer Hunter.

Id. at 28. Hunter stated in relevant part:

The subject appeared to be walking towards the railroad track, mentioned previously, so I advised Officer Carson, who had just pulled up[,] that we needed to go out to the highway and intercept the suspect[.] ...

I had my duty weapon out and heard someone moving in the brush behind me to the left about 10 to 20 feet. I was not sure it was the suspect or other police officers.

I began to look for cover since I was out in the open. As I was moving towards the tree line[,] the suspect walked out from the brush approximately 10 to 20 feet from me with his back to me. Before I had the chance to give any commands, the suspect suddenly turned towards me and pointed a dark colored handgun directly at me. I was in fear of my life as well as the lives of Lt[.] Cassidy and Officer Carson. I then immediately fired four rounds at him with my duty weapon. I was so focused on the threat [that] I am not sure who else fired their weapons, but I do recall hearing another gunshot.

Id. at 31–32.² In summary, Hunter stated that he had no chance to issue a command to Cole, but Cassidy and Carson stated that Hunter shouted a warning to Cole. Hunter and Cassidy stated that Cole then turned and pointed his handgun at Hunter, at which point both officers—fearing for Hunter's life—opened fire defensively.

The Dallas County District Attorney presented the Statements, among other evidence, to a grand jury. It returned a no-bill for the Officers and charged Cole with felony aggravated assault of a public servant, and Cole was placed under house arrest. The arrest affidavit, prepared by Detective Stacy Tooke ("Tooke"), states in relevant part:

Detective's [sic] Tooke and Sweet conducted individual walk-throughs of the crime[ ]scene with officers involved in the shooting. Detective's [sic] Tooke and Sweet did a walk-through with Sachse PD Lt. Martin Cassidy and a [second] walk through was done with detective's [sic] Tooke, Sweet and a Sachse Cid Sgt. Chris Burns, with Lt. Cassidy. Detective's [sic] Tooke and Sweet made a walk through of the crime scene with officer involved in the shooting, Sachse PD Officer Michael Hunter, with Cleat attorney Craig Driskell[.] Sachse PD Officer Carl Carson was in very close proximity to Lt. Cassidy (Carson stood a few feet behind Cassidy[ ] and did not fire his handgun[)]. Shell casings where Officer Hunter had fired his rounds, were the 3 .40 cal. shell casings located by the treeline, [sic] in close proximity, about 3 to 7 yards, from the area where Ryan Cole had fallen. Officer Michael Hunter saw Cole emerge from the treeline [sic] and lower his handgun, pointing it at Hunter. Hunter gave a command to Cole to drop his gun and then fired. (detective's [sic] heard the command, listening to officer hunter's body mic. recording.) Lt. Cassidy remembered Hunter giving a command[;] Hunter did not remember giving one. Both of them knew that Cole pointed his handgun at Hunter[,] and they both fired multiple shots. There were [four] .40 cal. shell casings on the ground in the area where Lt. Cassidy had been standing. This was about 15 to 30 yards north of where Officer Hunter was, in the area where Lt. Cassidy had been standing. The third Sachse PD Officer, Officer Carl Carson could not see Ryan Cole, as he was positioned in close proximity to Lt. Cassidy[,] and Officer Hunter was directly between himself and Cole.

Pls.’ App. 19–23, ECF No. 266.³

About a month after the indictment, investigators received a ballistics report from the crime lab. See Pls.’ App. 190–228, 1210-25, ECF No. 266. The ballistics analysis, taken together with stippling observed around Cole's head wound, made clear that Cole had shot himself in the temple. Id. The Statements, insofar as the Officers asserted that...