Harmon v. City of Arlington
| Docket Number | 20-10830 |
| Decision Date | 26 October 2021 |
| Parties | Terrence Harmon; Sherley Woods, as Administratrix for the Estate of O'Shea Terry, Plaintiffs-Appellants, v. City of Arlington, Texas; Bau Tran, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Northern District of Texas USDC No. 4:19-CV-696
Before Jones, Southwick, and Engelhardt, Circuit Judges.
Officer Bau Tran fatally shot O'Shea Terry, who was trying to drive his SUV away while Tran stood on the vehicle's running board. Terry's estate and Terrance Harmon, a passenger in the car, sued Tran under 42 U.S.C. § 1983 for using excessive force. Tran moved to dismiss the case based on qualified immunity. His defense hinges on whether he reasonably perceived an imminent threat of personal physical harm in the short interval between Terry's starting the engine and when Tran began shooting. The district court upheld Tran's defense dismissing the claims against him and the City of Arlington a codefendant. We agree that plaintiffs did not plausibly allege an unconstitutional use of excessive force by Tran did not rebut his qualified immunity, and therefore had no claim for municipal liability. Thus, we Affirm.
A City of Arlington police officer pulled over O'Shea Terry and his passenger, Terrance Harmon, for driving a large SUV with an expired registration tag. The officer approached the car and asked Terry and Harmon for identification. After taking their information, the officer advised them that she smelled marijuana coming from the car and, as a result, had to search it. In the meantime, another police officer, Defendant Bau Tran, arrived on the scene and approached the car from the passenger's side next to a curb. While the first officer went back to her patrol car to verify Terry's and Harmon's information, Tran waited with the two men. Tran asked them to lower the windows and shut off the vehicle's engine, and Terry at first complied. Dashcam and bodycam videos capture what happened next.
After some small talk, Terry started raising the windows and reaching for the ignition. Tran immediately shouted "hey, hey, hey, hey," clambered onto the running board of the SUV, and grabbed the passenger window with his left hand. Tran reached through the passenger window with his right hand and yelled "hey, stop." Tran retracted his right hand and rested it on his holstered pistol. Then Terry fired the ignition and shifted into drive. Just after the car lurched forward, Tran drew his weapon, stuck it through the window past Harmon's face, and shot 5 rounds, striking Terry four times.
Terry lost control, careened across the opposite lane, and jumped the curb. The force of the SUV hitting the curb knocked Tran off and onto the street. As Tran rolled over the asphalt, the car's rear tires just about hit Tran's flailing limbs. Harmon then gained control of the SUV, got it back onto the street, and stopped it. An ambulance took Terry to the hospital, but he did not survive.
Terry's administratrix and Harmon sued Tran under 42 U.S.C. § 1983 for Tran's alleged violation of the Fourth Amendment. They also sued the City of Arlington, contending that Tran's use of excessive force could be imputed to the city because of its repeated failure to discipline Tran in the past and its broader custom of using excessive force with racial bias. They also alleged various state-law claims.
Tran moved to dismiss the case on the pleadings and asserted qualified immunity as a defense. The City of Arlington also moved to dismiss the municipal liability claims against it for failure to state a claim. The district court granted those motions. The plaintiffs have appealed the judgment, except as to the state law claims.
Appellate review of a district court's Fed. R. Civ. Pro. 12(b)(6) dismissal on the pleadings is de novo. Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc). In conducting that review, the court accepts "all well-pleaded facts as true and draw[s] all reasonable inferences in favor of the nonmoving party." Id. The court does not, however, "presume true a number of categories of statements, including legal conclusions; mere labels; threadbare recitals of the elements of a cause of action; conclusory statements; and naked assertions devoid of further factual enhancement." Id. (cleaned up) (quoting Ashcroft v. Iqbal., 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009)). Moreover, where video recordings are included in the pleadings, as is the case here, the video depictions of events, viewed in the light most favorable to the plaintiff, should be adopted over the factual allegations in the complaint if the video "blatantly contradict[s]" those allegations.[1] Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776 (2007).
On appeal, the plaintiffs advance three arguments. First, the plaintiffs argue that Tran is not entitled to qualified immunity because his use of excessive force violated a clearly established constitutional right. Second, Tran violated Harmon's rights by shooting Terry and thereby seizing the entire SUV, including Harmon, the passenger. Finally, the City is liable for Tran's use of excessive force. We discuss each claim in turn.
Tran is entitled to qualified immunity at the motion-to-dismiss stage unless the plaintiffs have alleged facts sufficient to plausibly show that (1) the defendant's conduct violated a constitutional right and (2) the constitutional right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 816 (2009). The plaintiffs cannot satisfy either of these standards.
Because Officer Tran used deadly force to "seize" Terry, the relevant Fourth Amendment questions are whether the force was "excessive" and "unreasonable" as "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872 (1989) (citation omitted). That calculus "must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." Id. at 396-97.
In evaluating whether the officer used "excessive" force, courts consider the "severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396 (citation omitted). The threat-of-harm factor typically predominates the analysis when deadly force has been deployed. Accordingly, this court's cases hold that "[a]n officer's use of deadly force is not excessive, and thus no constitutional violation occurs, when the officer reasonably believes that the suspect poses a threat of serious harm to the officer or to others." Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) (citation omitted). A court must "be cautious about second-guessing [the] police officer's assessment" of the threat level. Ryburn v. Huff, 565 U.S. 469, 477, 132 S.Ct. 987, 991-92 (2012) (per curiam). The question for this court is whether Tran could reasonably believe that Terry posed a serious threat of harm.
The reasonableness inquiry is inherently factbound, making the video of this ten-second event critical.[2] Scott, 550 U.S. at 383, 127 S.Ct. at 1778 (2007). While Tran was waiting with Terry and Harmon, Terry abruptly rolled up the windows and reached for his keys. Tran immediately shouted "hey, hey, hey, hey" and "hey stop," grabbed onto the SUV's passenger window, and stepped onto the running board (a narrow ledge at the base of the SUV doors designed to assist passengers climbing into the car). Ignoring Tran's commands to stop what he was doing, Terry started the car, put it in gear, and started to drive off-with Tran hanging onto the passenger window, perched on the narrow running board. Before Terry accelerated, Tran kept his pistol holstered. But about a second after the car lurched forward, Tran drew his pistol and shot Terry four times.
That brief interval-when Tran is clinging to the accelerating SUV and draws his pistol on the driver-is what the court must consider to determine whether Tran reasonably believed he was at risk of serious physical harm. Cf. White v. Pauly, ___ U.S. ___, 137 S.Ct. 548, 550 (2017) (per curiam). That belief was reasonable. [3]
Indeed, what came next illustrates the danger Tran faced. Several seconds after Tran shot Terry, while the SUV was still moving, Tran fell off the running board and into the busy street.[4] Common sense confirms that falling off a moving car onto the street can result in serious physical injuries. Moreover, as Tran tumbled across the asphalt, the car's rear tires nearly overran his limbs. That this near miss occurred after Tran had shot Terry is of no moment; it confirms that Tran could reasonably perceive a serious threat of harm as Terry drove away with Tran holding onto the SUV.
The plaintiffs attempt to refute that conclusion by arguing that being "at" the side of a moving vehicle does not pose a threat of harm because "the existence of the threat generally turns on whether the person is in the vehicle's path." But Tran faced a different threat altogether. The threat of falling from a vehicle in motion is unrelated to whether Tran was in the vehicle's path. As a result, Terry's analogy to cases where officers were "at" the vehicle's side, and not in its path, falls flat.
The plaintiffs also contend that...
To continue reading
Request your trial
-
Frank v. Parnell
...plainly available and obviously recommended by the situation." Crane v. City of Arlington, 50 F.4th 453, 464 (5th Cir. 2022) (citing Harmon, 16 F.4th at 1165). It is clear Daniel's body camera footage that the officers made no attempt to deescalate the situation, but rather deliberately and......