Hathaway v. Bazany

• Citation: 507 F.3d 312
• Decision Date: 01 November 2007
• Docket Number: No. 06-50602.,06-50602.
• Parties: Harry HATHAWAY, Individually and as Personal Representative of the Estate of Jon-Eric Hathaway, Deceased; Erica Hathaway, Individually and as Personal Representative of the Estate of Jon-Eric Hathaway, Deceased, Plaintiffs-Appellants, v. Steven BAZANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

507 F.3d 312

Harry HATHAWAY, Individually and as Personal Representative of the Estate of Jon-Eric Hathaway, Deceased; Erica Hathaway, Individually and as Personal Representative of the Estate of Jon-Eric Hathaway, Deceased, Plaintiffs-Appellants, v. Steven BAZANY, Defendant-Appellee.

No. 06-50602.

United States Court of Appeals, Fifth Circuit.

November 1, 2007.

Ricky James Poole (argued), Law Offices of Ricky J. Poole, San Antonio, TX, for Plaintiffs-Appellants.

Shawn Kevin Fitzpatrick (argued), San Antonio, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, JOLLY and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal raises questions of excessive force under the Fourth Amendment involving the shooting death of a teenage driver by a policeman who was struck by the car as it sped away after a traffic stop. Harry and Erica Hathaway, parents of the teenager, appeal the summary judgment granting police officer Steven Bazany qualified immunity. The Hathaways also appeal the district court's exclusion of expert witness evidence offered in reply to Bazany's summary judgment motion. We hold that the exclusion of evidence was justified and that Bazany, facing a grave threat to personal safety and with only seconds to make a decision, acted reasonably under the circumstances, and thus meets the requirements for qualified immunity. We therefore AFFIRM the judgment dismissing the case.

I.

Steven Bazany, an officer with the San Antonio Police Department, was providing security for City Hall on the afternoon of April 1, 2003. The San Antonio City Hall is bounded on the north by West Commerce Street and on the east by Flores Street. West Commerce Street, the street on which Bazany was stationed, is four lanes wide and open only to west-bound traffic.

While on Commerce Street—and west of the intersection with Flores Street—Bazany was approached by Marc Vargas, an off-duty Bexar County Sheriff's Deputy. Deputy Vargas stopped his vehicle beside Bazany to report a possible gang altercation occurring farther down Commerce Street, east of the intersection of Commerce and Flores. Officer Vargas told Bazany that a silver Mustang was swerving at a blue car while the occupants of the Mustang were hanging out of a window making gang signs and yelling "Sureño," the name of a well-known gang.

Bazany saw the Mustang stopped at the Flores and Commerce traffic light and facing west with its doors open. Two or three males, the occupants of the silver Mustang, were standing over the blue car, yelling and flailing their arms. In order to get a better view, Bazany walked to the third lane from the south curb of Commerce Street, the lane in which the Mustang was stopped on the other side of the intersection. Bazany then walked east, towards the intersection, at which time the men standing over the blue car returned to the Mustang. The Mustang traveled through the intersection, and Bazany motioned for it to pull over to the south curb of Commerce Street and stop. The Mustang did so. Bazany then entered the southernmost lane so that he could approach the Mustang from the driver's side.

Bazany testified that when he reached a point approximately eight to ten feet from the front right corner of the Mustang, the vehicle suddenly accelerated towards him, turning first to the right, then back to the left, and then finally back towards the center of the roadway as Bazany attempted to get out of the way. When Bazany realized that he was not going to be able to get out of the Mustang's path, he decided to fire his weapon. The Mustang struck Bazany on the left leg, causing him to spin down the side of the vehicle. Bazany did fire his weapon, though he does not know whether he drew and fired before, during, or immediately after he was struck by the Mustang. These events took place, on his account, in the snap of a finger.

The bullet fired by Bazany hit the Mustang's driver, Jon-Eric Hathaway, at a point immediately below Hathaway's lower left shoulder blade, traveled laterally through Hathaway's lungs and heart, and came to rest on the right side of his chest, between his right nipple and armpit. Hathaway died from this wound.

II.

Harry and Erica Hathaway brought a 42 U.S.C. § 1983 lawsuit against Bazany and the city of San Antonio. The Hathaways claimed that Bazany used excessive force in seizing their son and that the city had failed to train its police officers in the proper use of deadly force. The city filed a motion to dismiss and Bazany filed a motion for summary judgment, claiming an entitlement to qualified immunity. The Hathaways failed to respond to either motion and both were granted by the magistrate judge. The Hathaways subsequently asked for, and were granted, additional time to respond to Bazany's motion for summary judgment.

The Hathaways' response objected to the expert testimony upon which Bazany's motion relied. The response also included the expert testimony of Harry Hathaway, to which Bazany objected. The magistrate judge ruled that the testimony of both expert witnesses should be excluded. On the basis of the remaining evidence, which was primarily Bazany's own testimony, the magistrate judge held that the Hathaways had failed to show that Bazany had violated Jon-Eric Hathaway's constitutional rights, and granted the motion for summary judgment again. The District Court adopted the magistrate judge's conclusions. The Hathaways now appeal the exclusion of the testimony of their expert and the grant of summary judgment.

III.

The Hathaways raise two issues on appeal: the exclusion of Harry Hathaway's testimony as an expert witness and the grant of qualified immunity to Bazany. With respect to the expert witness issue, the Hathaways argue that Harry Hathaway has presented all the indicia of reliability required by Fed.R.Evid. 702, including a detailed account of his methodology and his own expert background as a police officer. Bazany, in turn, points to numerous paragraphs in the affidavit that he claims have virtually no evidentiary support and range from purely legal determinations to psychological speculation.

The second issue on appeal, the grant of summary judgment denying the Hathaways' Fourth Amendment claims, is closer. The Hathaways argue that the evidence was sufficient to merit jury consideration. To support this argument, the Hathaways cite alleged inconsistencies in Bazany's deposition, the autopsy report describing their son's injury, and the excluded evidence of their expert. This evidence, the Hathaways argue, supports their theory that Bazany fired at Jon-Eric well after the threat to Bazany's safety had dissipated. Bazany, for his part, notes that no admitted evidence controverts his deposition testimony, and that his deposition evinces a scenario characterized by a threat to both his safety and the safety of others and an extremely limited period of time in which to develop a response to that same threat. These characteristics, on Bazany's account, justify his use of deadly force.

IV.

A.

There is, first of all, a dispute over the proper standard of review to apply to the exclusion of Harry Hathaway's testimony. The Hathaways argue that an abuse of discretion standard is appropriate here, see Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), while Bazany, claiming that the Hathaways failed to preserve their objection to the magistrate judge's order, urges the more restrictive plain error standard of review, see Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir.1996) (en banc). Both standards give deference to the trial court, however, and both support excluding Harry Hathaway's testimony here.¹

Assuming that the Hathaways properly preserved their objections, "[w]ith respect to expert testimony offered in the summary judgment context, the trial court has broad discretion to rule on the admissibility of the expert's evidence and its ruling must be sustained unless manifestly erroneous." Boyd v. State Farm Ins. Co., 158 F.3d 326, 331 (5th Cir.1998). The district court excluded Harry Hathaway's testimony on the ground that he failed to provide an adequate basis to support his conclusions.

Federal Rule of Evidence 702 permits opinion testimony from "a witness qualified as an expert by knowledge, skill, experience, training, or education" if such testimony will assist the trier of fact and "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court assigned to trial courts the responsibility of determining whether expert testimony under Rule 702 is "not only relevant, but reliable." Id. at 589, 113 S.Ct. 2786. In this gate-keeping role, trial courts make "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id. at 592-93, 113 S.Ct. 2786.

The Daubert opinion lists a number of factors that a trial court may use in determining an expert's reliability. Trial courts are to consider the extent to which a given technique can be tested, whether the technique is subject to peer review and publication, any known potential rate of error, the existence and maintenance of standards governing operation of the technique, and, finally, whether the method has been generally accepted in the relevant scientific community. See id. at 593-94, 113 S.Ct. 2786. These factors are not mandatory or exclusive; the district court must decide whether the factors discussed in Daubert are appropriate, use them as a starting point, and then ascertain...