Hernandez v. Causey
| Decision Date | 04 May 2021 |
| Docket Number | CIVIL ACTION NO. 2:17-cv-123-TBM-MTP |
| Parties | GABINO RAMOS HERNANDEZ PLAINTIFF v. PHILLIP CAUSEY and THE UNITED STATES OF AMERICA DEFENDANTS |
| Court | U.S. District Court — Southern District of Mississippi |
On July 20, 2016, Gabino Ramos Hernandez was unarmed when he was shot in his right forearm by Immigration and Customs Enforcement ("ICE") Officer Phillip Causey. Pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), Hernandez asserts that Causey violated his Fourth, Fifth, and Fourteenth Amendment rights to be free from an unreasonable and excessive use of deadly force. Causey filed a Motion for Summary Judgment based on qualified immunity. Because the Court finds that a genuine issue of material fact exists as to the location of Hernandez's hands at the time of the shooting, Causey's Motion for Summary Judgment based on qualified immunity is denied. In the light most favorable to Hernandez, a jury could conclude that Hernandez was shot while he was standing with his hands raised in the air.
In his Complaint, Hernandez also asserts three separate causes of action against the United States pursuant to the Federal Tort Claims Act: 1) wrongful use of deadly force; 2) wrongful assault and battery; and 3) negligent training and supervision. In response, the Government filed a Partial Motion to Dismiss only the negligent training and supervision claim since discovery related to the intentional tort claims is ongoing. In its Motion, the Government asserts that the "discretionary function exception" of the Federal Tort Claims Act prevents negligent training and supervision suits against it. As such, the Government submits that Hernandez's negligence claim must be dismissed for lack of subject matter jurisdiction. The Court finds that Hernandez has failed to satisfy the minimum pleading requirements to withstand dismissal under the discretionary function exception, and the negligent training and supervision claim is dismissed without prejudice under Rule 12(b)(1).
On July 20, 2016, Hernandez was driving home in Laurel, Mississippi. His brother was following behind him in another vehicle. Hernandez's brother allegedly rolled through a stop sign. Laurel Police Department Officer David Driskell initiated his blue lights. [68-1], ¶ 2. Hernandez's brother did not immediately pull over. [68-1], ¶ 2. Officer Driskell followed the brother's vehicle until he pulled into a driveway on 13th Avenue. [68-1], ¶ 2. After pulling into the driveway, Officer Driskell got out of his patrol car. [68-1], ¶ 2. Hernandez's brother got out of his vehicle and appeared intoxicated. [68-1], ¶ 3. Officer Driskell attempted to question Hernandez's brother in English, but discovered that his primary language was Spanish. [68-1], ¶ 3. While Officer Driskell was able to obtain basic information from Hernandez's brother in English, the language barrier made it difficult to continue the questioning. [68-1], ¶ 3.
Officer Driskell knew that ICE agents were in the area performing immigration operations.1 [68-1], ¶ 3. He called ICE Deportation Officer Mike McGhee and requested translation assistance. [68-1], ¶ 3. ICE Officer McGhee then called fellow ICE Deportation Officers Phillip Causey and Kyle Le, who were assigned to the transportation van. It is clear from the record that the ICE Officers were only told that the transportation van might be needed for deportation purposes at the address where Hernandez was located. [75-1], pgs. 17:20-19:01; [68-3], ¶ 2; see also [68-4], ¶ 2.
After calling ICE Officer McGhee, Officer Driskell radioed a fellow Laurel Police Department Officer and requested a breathalyzer. [75-8] at 3:59; [68-2], ¶ 2. At this point, Officer Driskell had not yet spoken to Hernandez. [75-3], pg. 103:5-14.
After handcuffing Hernandez's brother, Police Officer Driskell then addressed Hernandez, who had exited his vehicle. [75-8] at 4:50-5:07. Hernandez asked Officer Driskell, "what's the problem?" [75-8] at 5:08-5:10. Officer Driskell responded, "he's drunk." [75-8] at 5:10-5:15. Hernandez and Officer Driskell continued to converse, and Hernandez explained that the driver was his brother. Id. Officer Driskell stated that someone was on the way who could speak Spanish, and that they could continue their conversation once that person arrived. [75-8] at 5:15-5:41. It is clear from the record that Officer Driskell never indicated that Hernandez was getting a ticket for a traffic offense or that he was being detained. [75-3], pg. 81:13-23; [75-8] at 0:00-16:28. Instead, Officer Driskell merely pointed to Hernandez's vehicle with his flashlight and told Hernandez, "hang tight right there, okay." [75-8] at 5:39-5:41. Officer Driskell gave this instruction because he was the lone officer on scene and was waiting on backup. [75-3], pg. 75:25-76:01.
Officer Driskell then returned to his patrol car where Hernandez's brother was standing handcuffed. [75-8] at 5:41-6:10. Hernandez began to walk towards Officer Driskell and his brother. After Officer Driskell told him to "wait right there," Hernandez stopped walking. [75-8] at 6:10-6:14. Hernandez then explained, from a distance, that he had someone who could translate on the phone. [75-8] at 6:28-6:33. Officer Driskell responded that he had a police officer on the way who would translate. [75-8] at 6:50-6:55. Hernandez continued to talk on the phone and walked back and forth in the driveway for the next few minutes. [75-8] at 6:28-11:30.
Before the ICE officers arrived, Laurel Police Department Officer Wade Robertson brought a breathalyzer. [75-8] at 11:30. Officer Driskell told Officer Robertson, referencing Hernandez, [75-8] at 11:30-11:38. Officer Driskell then administered the breathalyzer to Hernandez's brother and began to write him a citation. [75-8] at 11:44-14:00. After completing a few sections on the citation form, Officer Driskell called the ICE officers again to tell them that another guy on scene was "real mouthy," and that he "couldn't understand a word he's saying." [75-8] at 14:24-14:40.
Once ICE Officer Mike McGhee arrived, Police Officer Driskell left Hernandez's brother with ICE Officer McGhee, and he went to talk to Hernandez. [68-1], ¶ 4. Officer Driskell walked toward the house and called out to Hernandez, who was no longer standing in the driveway. [75-8] at 15:34-15:38. At that time, Hernandez was in the garage talking on the phone to a friend about what was going to happen to his brother. [75-22] at 42:3-10. Then, Hernandez saw the ICE van and ran. [75-22] at 42:10-14.
Officer Driskell realized that Hernandez was running and said, "he's darted around the front . . . I think he just ran around the front." [75-8] at 15:58-16:02. A few seconds later, Officer Driskell said, [75-8] at 16:16-16:21. Police Officer Robertson then asked Police Officer Driskell, "do you want me to go get him?" to which Officer Driskell responded, "yeah." [75-8] at 16:26-16:28
Hernandez was already running when the Defendant, ICE Officer Phillip Causey, and ICE Officer Kyle Le arrived on the scene in the ICE transportation van. [68-3], ¶ 2; [68-4], ¶ 2. ICE Officer McGhee told ICE Officers Causey and Le to "walk back down to the end of the street and see if you can locate him." [75-1], pg. 23:12-19. Significantly, Causey and Le were given no further instructions. It is clear from the record that the ICE Officers were only called to assist with translation services for Hernandez's brother and were not told that Hernandez was suspected of committing any crime. [75-1], pg. 45:23-25. Causey was not told that Hernandez was armed or dangerous. [75-1], pg. 45:10-22.
ICE Officers Causey and Le headed to an intersection to see if they could locate Hernandez. Upon entering the intersection, they saw Hernandez approximately fifty to sixty yards away at the end of the street. [68-4], ¶ 3; [75-1], pg. 25:1-3. As Hernandez approached Causey and Le, the ICE officers began shouting. [75-8] at 16:42-16:55. Causey gave Hernandez commands in English and Spanish to stop, put his hands up, and get down. [68-3], ¶ 3; [75-1], pg. 25:6-19. Le stated that he used hand gestures to try to get Hernandez to stop. [68-4], ¶ 3. Hernandez continued to walk towards Causey and Le. [68-3], ¶ 3; [75-1], pg. 25:6-19; [68-4], ¶ 3. Le testified that he did not see anything in Hernandez's hands while he was walking towards them. [75-2], pg. 12:8-23. It is undisputed that Hernandez came to a stop when he was approximately twelve to fifteen feet from Causey, at which point Causey shot him. [68-3], ¶ 3; [75-1], pgs. 25:19-26:6.
Hernandez testified that, at the time he was shot, his hands were raised. [75-22], pg. 75:13-19. Specifically, Hernandez testified that his hands were near his waist, and while his hands were not raised very high, his palms were facing Causey. [75-22], pg. 75:18-22. Officer Driskell stated in an interview after the shooting that he saw Hernandez with his hands near his waist. [83-2], at 10:20-10:28. In that same interview, Officer Driskell stated that Officer Robertson told him that he saw Hernandez with his hands raised. [83-2], at 10:20-10:28; [75-3], pg. 43:14-24.
According to Causey, once Hernandez was approximately twelve to fifteen feet away, Hernandez stopped and reached into his pocket. [68-3], ¶ 3; [75-1], pgs. 25:19-26:6; 35:21-25. Causey testified that once Hernandez reached into his pocket, Causey discharged his firearm. [68-3], ¶ 3; [75-1], pg. 26:1-6. Although the shot struck Hernandez in his right forearm, Causey testified that he was shooting to kill. [75-1], pg. 28:13-18. Causey, Le, and Robertson testified that Hernandez reached towards his...
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