Luna v. Mullenix

• Citation: 773 F.3d 712
• Decision Date: 19 December 2014
• Docket Number: No. 13–10899.,13–10899.
• Parties: Beatrice LUNA, Individually and as Representative of the Estate of Israel Leija, Jr.; Christina Marie Flores, as Next Friend of J.L. and J.L., Minor Children, Plaintiffs–Appellees, v. Chadrin Lee MULLENIX, In His Individual Capacity, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

773 F.3d 712

Beatrice LUNA, Individually and as Representative of the Estate of Israel Leija, Jr.; Christina Marie Flores, as Next Friend of J.L. and J.L., Minor Children, Plaintiffs–Appellees
v.
Chadrin Lee MULLENIX, In His Individual Capacity, Defendant–Appellant.

No. 13–10899.

United States Court of Appeals, Fifth Circuit.

Dec. 19, 2014.

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Robert Smead Hogan, Esq., Hogan Law Firm, P.C., Lubbock, TX, K. Paul Holloway, Law Office of Paul Holloway, Plainview, TX, for Plaintiffs–Appellees.

Matthew Hamilton Frederick, Assistant Solicitor General, Office of the Solicitor General, Karen Denise Matlock, Assistant Attorney General, Andrew S. Oldham, Deputy Solicitor General, Office of the Attorney General, Austin, TX, for Defendant–Appellant.

Before HAYNES and GRAVES, Circuit Judges.

Opinion

JAMES E. GRAVES, JR., Circuit Judge:

We withdraw our prior opinion of August 28, 2014, Luna v. Mullenix, 765 F.3d 531 (5th Cir.2014), and substitute the following.¹

This § 1983 excessive use of force case arises from the shooting and death of Israel Leija, Jr. by Texas Department of Public Safety (DPS) Trooper Chadrin Mullenix during a high-speed pursuit. The district court denied Mullenix's motion for summary judgment on the issue of qualified immunity, holding that multiple genuine disputes of material fact existed as to the qualified immunity analysis. Because we conclude that Mullenix is not entitled to summary judgment on qualified immunity, we affirm.

I. Factual and Procedural Background

On March 23, 2010, at approximately 10:21 p.m., Sergeant Randy Baker of the Tulia Police Department followed Israel Leija, Jr. to a Sonic Drive–In to arrest him on a motion to revoke misdemeanor probation. The arrest warrant had been filed

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because (1) Leija had failed to complete all of his hours of community service, and (2) a new complaint of domestic violence had been filed against Leija, who was on probation. After some discussion with Baker, Leija fled the scene and headed north towards Interstate Highway 27 (“I–27”), with Baker in pursuit. Texas DPS Trooper Gabriel Rodriguez was on patrol nearby and took the lead in the pursuit. Around mile marker 77, Leija entered I–27 and continued north, with Rodriguez directly behind him. During the approximately 18 minutes that the pursuit lasted, Rodriguez followed Leija and captured the pursuit on his video recorder. The video supports the plaintiffs' assertions that although the pursuit proceeded north on 1–27 at speeds between 85 and 110 miles per hour, traffic on the dry roadway was light; Leija remained on the paved portion of the road with his headlights on, did not run any vehicles off the road, did not collide with any vehicles, and did not cause any collisions; there were no pedestrians or stopped vehicles along the road; and all of the pursuit occurred in rural areas, without businesses or residences near the interstate, which was divided by a wide center median.

As the pursuit headed north on I–27, other law enforcement units joined. Officer Troy Ducheneaux of the Canyon Police Department deployed tire spikes underneath the overpass at Cemetery Road and I–27. DPS Troopers set up spikes at McCormick Road, north of Cemetery Road. Other police units set up spikes at an additional location further north, for a total of three spike locations ahead of the pursuit. The record reflects that officers had received training on the deployment of spikes, and had been trained to take a protective position while deploying spikes, if possible, so as to minimize the risk posed by the passing driver.

During the pursuit, Leija twice called the Tulia Police Dispatch on his cell phone, claiming that he had a gun, and that he would shoot at police officers if they did not cease the pursuit. This information was relayed to all officers involved. It was discovered later that Leija had no weapon in his possession.

DPS Trooper Chadrin Mullenix was on patrol thirty miles north of the pursuit, and also responded. Mullenix went to the Cemetery Road overpass, initially intending to set up spikes at that location, but ultimately decided to attempt to disable the car by shooting it. He positioned his vehicle atop the Cemetery Road bridge, twenty feet above I–27, intending to shoot at the vehicle as it approached. Mullenix planned to use his .223 caliber M–4 rifle to disable the vehicle by shooting at its engine block, although he had never attempted that before and had never seen it done before. The district court noted that “[t]here is no evidence—one way or another—that any attempt to shoot out an engine block moving at 80 mph could possibly have been successful.” Mullenix testified that he had been trained in shooting upwards at moving objects, specifically clay pigeons, with a shotgun. He had no training on how to shoot at a moving vehicle to disable it.

Mullenix's dash cam video reflects that once he got to the Cemetery Road overpass, he waited for about three minutes for the pursuit to arrive. Mullenix relayed to Officer Rodriguez that he was thinking about setting up with a rifle on the bridge. Rodriguez replied “10–4,” told Mullenix where the pursuit was, and that Leija had slowed down to 85 miles per hour. Mullenix then asked the Amarillo DPS dispatch to contact DPS Sergeant Byrd, Mullenix's supervisor, to tell Byrd that he was thinking about shooting the car and to ask whether the sergeant thought that was

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“worth doing.” According to plaintiffs' allegations, he contacted Byrd to “request permission” to fire at the vehicle. Mullenix denies that he requested or needed “permission,” but stated that he “asked for what [Byrd] advised” and asked to “get his advice.” Mullenix did not wait for a response from Sergeant Byrd, but exited his patrol vehicle, took out his rifle, and took a shooting position on the bridge. During this time, the dispatcher relayed a response from Sergeant Byrd to “stand by” and “see if the spikes work first.” Mullenix alleges that he was unable to hear that instruction because he had failed to turn on his outside loudspeakers, thereby placing himself out of communication with his dispatch or other officers involved in the pursuit. Plaintiffs allege that since the trunk was open, Mullenix should have heard the response. Mullenix did have his radio microphone on him. During the waiting minutes, Mullenix had a short, casual conversation with Randall County Sheriff's Deputy Tom Shipman about whether he could shoot the vehicle to disable it. When Shipman mentioned to Mullenix that there was another officer beneath the overpass, Mullenix replied that he did not think he would hit that officer.

As the two vehicles approached, Mullenix fired six rounds at Leija's car. There were no streetlights or ambient lighting. It was dark. Mullenix admitted he could not discern the number of people in Leija's vehicle, whether there were passengers, or what anyone in the car was doing. Mullenix testified that at the time of the shooting, he was not sure who was below the overpass, whether Ducheneaux had actually set up spikes there, or where Ducheneaux was positioned beneath the overpass. After Mullenix fired, Leija's car continued north, engaged the spike strip, hit the median and rolled two and a half times. In the aftermath of the shooting, Mullenix remarked to his supervisor, Sergeant Byrd, “How's that for proactive?” Mullenix had been in a counseling session earlier that same day, during which Byrd intimated that Mullenix was not being proactive enough as a Trooper.

Leija was pronounced dead soon after the shooting. The cause of death was later determined to be one of the shots fired by Mullenix that had struck Leija in the neck. The evidence indicates that at least four of Mullenix's six shots struck Leija's upper body, and no evidence indicates that Mullenix hit the vehicle's radiator, hood or engine block.

The incident was investigated by Texas Ranger Jay Foster. Foster concluded that Mullenix complied with DPS policy and Texas law. The DPS Firearms Discharge Review board reviewed the shooting and concluded that Mullenix complied with DPS policy and Texas law. A grand jury declined to return an indictment of Mullenix. A DPS Office of the Inspector General (“OIG”) Report concluded the opposite, that Mullenix was not justified and acted recklessly. The parties disputed the relevance and admissibility of that OIG report, which was subsequently called into question by its author, who testified that he did not have full information on the incident or investigation when he wrote the report. The district court mentioned the report in its statement of facts, but did not further discuss the report.

Beatrice Luna, as the representative of Leija's estate, and Christina Flores, on behalf of Leija's minor child, sued DPS, the Director of DPS Steve McCraw, Trooper Rodriguez, and Trooper Mullenix, in state court, asserting claims under the Texas Tort Claims Act and 42 U.S.C. § 1983. Defendants removed to federal court. Director McCraw's Motion to Dismiss was granted, and plaintiffs' stipulation of dismissal against DPS and Trooper

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