Flores v. Harris

• Decision Date: 29 March 2019
• Docket Number: CIVIL ACTION NO. H-17-3817
• Parties: HELDER FLORES, Plaintiff, v. THOMAS L. HARRIS, ANTON M. MAWHOOD, CITY OF HOUSTON, LA ESTANCIA APARTMENTS, and 2012 MULTI-FAMILY REAL ESTATE FUND, LLC, Defendants.
• Court: U.S. District Court — Southern District of Texas

HELDER FLORES, Plaintiff, v. THOMAS L. HARRIS, ANTON M. MAWHOOD, CITY OF HOUSTON, LA ESTANCIA APARTMENTS,and 2012 MULTI-FAMILY REAL ESTATE FUND, LLC, Defendants.

CIVIL ACTION NO. H-17-3817

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

March 29, 2019

MEMORANDUM AND ORDER

On July 22, 2015, Houston Police Department OfficerThomas Harris shot Helder Flores at La Estancia Apartments, where Harris was working an off-duty second job as a security guard.Flores sued the City of Houston, Harris, and Anton Mawhood, another HPD officer at the scene that night.¹(Docket EntryNos. 1-1, 6, 78).Flores alleges constitutional violations under 42 U.S.C. § 1983 and state-law causes of action for excessive force, racial discrimination, wrongful prosecution, unlawful arrest, illegal search and seizure, negligence, failure to train, and violations of the Texas Constitution.(SeeDocket EntryNo. 78).The City, Harris, and Mawhood have moved to dismiss Flores's Fourth Amended Complaint under Federal Rule of Civil Procedure 12(b)(6).(Docket EntryNo. 79).The City and the officers have also separately moved for summary judgment under Rule 56.(Docket EntryNos. 100, 102).Flores has responded to the motions, (DocketEntryNos. 112-15, 122, 123), and the City and officers have replied.(Docket EntryNos. 119, 120).

Based on the amended complaint; the motions, responses, and replies; the record; and the applicable law, the court grants the City's motion for summary judgment, (Docket EntryNo. 100), and denies in part and grants in part Harris's and Mawhood's motion for summary judgment, (Docket EntryNo. 102).The court denies as moot the defendants' motion to dismiss.(Docket EntryNo. 79).

The reasons are explained below.

I.Background

A.The Summary Judgment Evidence

The City's and the police officers' summary judgment evidence includes several exhibits filed under seal:

1. the Houston Police Department Internal Affairs Division's investigative report for the July 2015 shooting, (Docket EntryNo. 101-1, 103-1);

2. the Houston Police Department's offense report for the July 2015 shooting, (Docket EntryNo. 101-2, 103-2);

3.Mawhood's administrative statements from September 2, 2015, and October 12, 2015, (Docket EntryNos. 101-3, 101-4, 103-3, 103-4);

4.Harris's administrative statements from September 2, 2015, and October 12, 2015, (Docket EntryNos. 101-5, 101-6, 103-5, 103-6); and

5. the Houston Police Department's Gang Database entry related to Flores, (Docket EntryNo. 101-7, 103-7).

The City has also presented:

1.Mawhood's and Harris's training records, (Docket EntryNos. 100-8, 100-9, 102-8, 102-9);

2. expert reports by a consulting forensic scientist, Edward Hueske, (Docket EntryNo. 100-10, 102-10);3. expert reports by a professor of criminology, Dr. Robert Taylor, (Docket EntryNo. 100-11, 102-11); and

4. the Houston Police Department policies on the use of force and effecting arrests and searches, (Docket EntryNos. 100-12, 100-13, 102-12, 102-13).

In response, Flores submitted:

1. his 2018 deposition, (Docket EntryNo. 114-2, 115-1);

2. a 2018 affidavit by Daniel Negron Vargas, (Docket EntryNo. 114-3, 115-2); a 2015 affidavit by Edward R. Cruz, (Docket EntryNo. 114-4, 115-3);

3. an expert report by Dr. William H.Reading that evaluates Flores's mental health, (Docket EntryNo. 114-5, 115-4);

4.Harris's 2018 deposition, (Docket EntryNo. 114-6, 115-5);

5.Mawhood's 2018 deposition, (Docket EntryNo. 114-7, 115-6);

6.Houston Police DepartmentLieutenant Bradley Morefield's 2018 deposition, (Docket EntryNo. 114-8, 115-7);

7.Houston Police DepartmentSergeant Clint Ponder's 2018 deposition, (Docket EntryNo. 114-8; 115-7);

8. the 2018 deposition of Jimmie Lea Conway, the vice-president for the Stone Legacy Group, (Docket EntryNo. 114-9, 115-8);

9. the amended complaint in Okhueleigbe v. Harris, a 2012 civil case against Harris, (Docket EntryNo. 114-10, 115-9);

10.Houston Police Department Internal Affairs investigative reports on incidents involving off-duty officers, (Docket EntryNo. 114-11, 115-10);

11. the Houston Police Department extra-employment permit application for Guardian Equity Management, (Docket EntryNo. 114-12, 115-12);

12. the Houston Police Department Internal Affairs Division's report on the July 22, 2015, shooting, (Docket EntryNo. 115-11); and

13. an expert report by Keith A. Howse, (Docket EntryNo. 114-13, 115-13).

Flores also filed his medical records related to the shooting under seal.(Docket EntryNo. 117).

B.The Shooting at La Estancia Apartments

On July 22, 2015, City of Houston Police Department Officers Thomas Harris and Anton Mawhood were working an off-duty job at La Estancia Apartments in Houston, Texas.The apartments required the officers to wear their uniforms and bring their own equipment.(Docket Entry No. 115-5at 19, 55).The officers drove to La Estancia that evening in Mawhood's car and drove around patrolling the parking lot.(Id. at 31, 33).

Helder Flores was visiting La Estancia Apartments that same evening.(Docket Entry No. 103-1at 6).As he was leaving the apartment building, Flores came across Daniel Vargas and Eduardo Cruz and began walking with them through the parking lot toward the exit to the street.(SeeDocket Entry No. 114-2at 7, 12).As the three men walked through the building's parking lot, Flores noticed a passing car that he suspected contained MS13 gang members.(Id. at 8, 12-13;Docket Entry No. 101-1at 5).According to Flores's account, he started walking faster through the parking lot and crouched beside a vehicle to better observe the car.(Docket Entry No. 103-1at 9;Docket Entry No. 114-2at 9).Flores was carrying a gun in his waistband.Flores asserts that as he picked up his pace, he felt the gun slip down, but that he did not grab or adjust the gun.((Docket Entry No. 114-2at 10;Docket Entry No. 103-1at 9-10;seeDocket Entry No. 101-1at 5-7).Flores stood back up and resumed walking toward the corner of the parking lot when he heard a gunshot and fell to the ground.(Docket Entry No. 114-2at 7).Flores testified that he did not see officers behind him, hear anyone identify himself as a police officer, or hear any order or warning before he heard the shots.(Docket Entry No. 101-1at 5-6).Cruz testified that he heard someone shout "aye" before the gunshots.(Docket Entry No. 101-1at 12-13).

Officer Harris fired his gun three times, hitting Flores in the upper back.Flores was lying bleeding on the pavement when Mawhood and Harris approached after the shots were fired.(Docket Entry No. 115-6at 78).Flores asserts that the police officers were not wearing uniforms.(SeeDocket Entry No. 115-2at 50;Docket Entry No. 102at 5, 26)

According to Officer Harris's version of events, as he and Officer Mawhood were driving around the parking lot, they spotted three men walking through the lot.The officers believed that the men "were acting very suspicious" because they"were looking around" and appeared to be in "some kind of altercation among themselves."(Docket Entry No. 115-5at 31).After observing Flores, Vargas, and Cruz make their way toward the parking-lot exit gate, Officer Harris saw Flores pause between a car and the gate, "reaching into his pants."(Id.).Harris testified that he saw Flores pull something from his pants, but Harris could not make out what it was until Flores stood up.At that point, Harris saw that Flores was holding a gun behind his leg.(Id. at 32, 37, 56).According to Harris, Flores "start[ed] running off to the side," holding the gun in front of him and pointing it at the street as if aiming at another person.(Id. at 32).

Harris testified that Mawhood stopped the car, and Harris stepped out, yelling at Flores that he was a police officer and ordering Flores to drop the gun.(Id. at 32, 37, 57;see alsoid. at 58;Docket Entry No. 115-6at 65).Harris's version of events is that Flores, while running away from Harris and toward the exit, turned his torso toward Harris and pointed the gun at him.(Id. at 32-33).

Mawhood testified that when Harris got out of the car, he promptly identified himself as a police officer and yelled commands at Flores and the other two men with him.Mawhood testified that he saw Flores with a gun in his right hand, turn his upper body around, and point his gun at Harris.(Docket Entry No. 101-1at 16, 18;Docket Entry No. 115-6at 37-38, 40-41, 65-67).Harris then fired his gun from behind the open car door, striking Flores in the back.(Docket Entry No. 114-5at 33).(SeeDocket Entry No. 155-6at 33, 68-69).The officers maintain that they were wearing their uniforms that evening.(Docket Entry No. 115-5at 57, 58;Docket Entry No. 115-6at 33, 68-69).

The officers lost sight of Flores when he fell after the shooting.Harris and Mawhood approached the spot where Flores, Vargas, and Cruz had been standing when the shooting started.(SeeDocket Entry No. 115-5at 43).Flores was lying beside a truck, with Vargas standing nearby.(Docket Entry No. 115-6at 65).The parties and witnesses have different accounts about whether Cruz hid under a car in the parking lot or fled the scene on foot to avoid the police.(Docket Entry No. 115-5at 43;Docket Entry No. 115-6at 25, 26).

The officers both testified that it was when they saw Flores that he had been shot and that a gun was on the ground within his reach.(Docket Entry No. 115-6at 65).The officers continued toward the Flores and Vargas with their own guns drawn and ordered Flores and Vargas to show their hands.Mawhood handcuffed Flores while Harris handcuffed Vargas.(Docket Entry No. 115-6at 78).Harris radioed dispatch to request an ambulance at 6:49 p.m.(SeeDocket Entry No. 101-1at 28;Docket Entry No. 115-6at 78).Flores testified that he began to lose consciousness after he was shot and was not aware of the officers or who shot him.(Docket Entry No. 115-1at 10).

When on-duty Houston Police...