Waller v. Hanlon

• Decision Date: 24 April 2019
• Docket Number: No. 18-10561,18-10561
• Citation: 922 F.3d 590
• Parties: Angie WALLER, Individually and in her Capacity as Independent Executrix of the Estate of Kathleen Margaret Waller; Chris Waller, Plaintiffs - Appellees Terry Wayne Springer; Gayla Wynell Kimbrough, Intervenor Plaintiffs - Appellees v. Benjamin B. HANLON; Richard Hoeppner; B. S. Hardin, Defendants - Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

922 F.3d 590

Angie WALLER, Individually and in her Capacity as Independent Executrix of the Estate of Kathleen Margaret Waller; Chris Waller, Plaintiffs - Appellees

Terry Wayne Springer; Gayla Wynell Kimbrough, Intervenor Plaintiffs - Appellees

v.Benjamin B. HANLON; Richard Hoeppner; B. S. Hardin, Defendants - Appellants

No. 18-10561

United States Court of Appeals, Fifth Circuit.

FILED April 24, 2019

Arthur John Brender, Law Offices of Art Brender, Fort Worth, TX, for Plaintiffs-Appellees ANGIE WALLER, CHRIS WALLER.

Michael Ware, Fort Worth, TX, for Intervenor Plaintiff-Appellee TERRY WAYNE SPRINGER, GAYLA WYNELL KIMBROUGH.

James Thomas Jeffrey, Jr., Esq., Law Offices of Jim Jeffrey, Arlington, TX, for Defendant-Appellant BENJAMIN B. HANLON.

Kenneth E. East, Esq., Foster & East, North Richland Hills, TX, Dee Lee Thomas, Jr., Law Office of D. Lee Thomas, Fort Worth, TX, for Defendant-Appellant RICHARD HOEPPNER.

Stephen Chamberlain Maxwell, Bailey & Galyen, Fort Worth, TX, for Defendant-Appellant B. S. HARDIN.

Before KING, SMITH, and WILLETT, Circuit Judges.

KING, Circuit Judge:

Fort Worth Police Officer Richard Hoeppner fatally shot 72-year old Jerry Waller in Waller’s own garage. Hoeppner insists he did so only out of reasonable fear for his life. Seeking recompense for Waller’s death, Waller’s survivors came to the district court alleging that forensic evidence substantially undermines Hoeppner’s version of events. The district court concluded that the plaintiffs pleaded enough facts to plausibly allege that Hoeppner did not reasonably fear for his safety when he shot Waller. It likewise concluded they pleaded enough facts to allege that defendant police officers Benjamin Hanlon and B. S. Hardin conspired with Hoeppner to veil the true circumstances of Waller’s death. It accordingly denied the defendants’ motions for a judgment on the pleadings.

The defendants appeal that ruling. Exercising appellate jurisdiction under the collateral-order doctrine, we AFFIRM in part and REVERSE in part. We agree with the district court that the plaintiffs plausibly allege Waller was unarmed—and thus posed no reasonably perceivable threat—when Hoeppner killed him. But we conclude the plaintiffs’ claims alleging the defendants denied them access to the courts are currently unripe. We also conclude the plaintiffs do not have standing to seek declaratory (as opposed to retrospective) relief for the past injury to Waller.

I.

A.

We draw the following facts from the plaintiffs’ pleadings and the attachments thereto.

Defendants Richard Hoeppner and Benjamin Hanlon, both Fort Worth police officers on patrol during the early morning of May 28, 2013, were dispatched to 409 Havenwood Lane North to investigate a residential burglary alarm. Hoeppner and Hanlon arrived in separate vehicles and parked down the street from 409 Havenwood Lane North, so they could approach surreptitiously. The officers proceeded on foot to 404 Havenwood Lane North, erroneously believing it was 409 Havenwood Lane North, which was across the street. The officers looked around the outside of the house and noticed the garage door was open. Hanlon then went to knock on the front door while Hoeppner stayed by the open garage. Meanwhile, the officers’ flashlights roused Jerry and Kathleen Waller, the residents of 404 Havenwood Lane North. Jerry Waller attributed the lights to his car alarm, so he went out to the garage to investigate.

What happened next is the subject of dispute. Hoeppner and Hanlon, the only surviving witnesses to the encounter, recounted the following version of events in a series of statements to investigators.¹ Holding a small gun, Waller entered the garage through a door that led in from the house. Hoeppner shined his 600-lumen flashlight in Waller’s eyes specifically to conceal himself, drew his service weapon, and repeatedly ordered Waller to drop the gun. Hoeppner did not identify himself as a police officer, but Hanlon, upon hearing Hoeppner shouting in the garage, rushed to the garage while yelling "Fort Worth PD."

Waller ignored Hoeppner’s repeated commands to drop his gun. Instead, Waller became combative and demanded that Hoeppner get the light out of his eyes. Waller eventually did put the gun down on the back of a car parked in the garage. Hoeppner moved toward the gun, but Waller suddenly lunged for the gun, retrieved it, and pointed it at Hoeppner. Fearing for his life, Hoeppner shot Waller five or six times, and Waller fell forward on top of the gun. Hanlon did not fire his weapon.

The plaintiffs accuse Hoeppner and Hanlon of fabricating this story to cover up an unjustified use of force. They allege that physical evidence shows that Waller could not have been holding a gun when he was shot. Rather, they say the autopsy report and blood-splatter patterns suggest that Waller was holding both his hands over his face when he was shot.

The autopsy report, which the plaintiffs attach to their pleadings, shows that one of Hoeppner’s bullets went through Waller’s left thumb and struck several of his fingers on his left hand. The plaintiffs maintain that the bullet’s path through Waller’s fingers and the blood on the palm of his left hand suggest that he could not have been gripping a gun with his left hand when it was struck. Further, they say that Waller’s gun was not damaged in the shooting and crime-scene photographs do not reveal any blood on the gun’s handle, making it unlikely it was in Waller’s left hand when he was struck.

Likewise, Waller had blood splatter on the palm of his right hand, which the plaintiffs cite as evidence that when he was shot, he was not holding anything in his right hand either. Waller also had blood splatter around his left ear, which, the plaintiffs posit, means he must have been holding his left hand above his face when the bullet hit it, likely because he was trying to shield the light from his eyes. And if the blood splatter on his right hand also came from the wound

on his left hand, then his right hand must have also been at eye level when he was shot.

The events that allegedly followed further animate the plaintiffs’ suspicions. They allege that defendant B. S. Hardin, another Fort Worth officer, arrived at the scene a few minutes after the shooting and conspired with Hoeppner and Hanlon to cover up Hoeppner’s culpability. Hardin told investigators that he went to administer aid to Waller when he arrived on scene because he had prior experience as an EMT. Hardin said that Hoeppner told him there was a gun underneath Waller, so he lifted Waller’s body and laid the gun off to the side before administering aid in case Waller could still fire the weapon. It was not until after removing the gun, Hardin said, that he discovered Waller did not have a pulse.

The plaintiffs allege that Hardin lied about finding a gun under Waller’s body. The plaintiffs assert that Hardin had no legitimate reason to move the gun from underneath Waller to about a foot from Waller’s head, where it is later depicted in crime-scene photographs. They also point to inconsistent statements about the positioning of Waller’s arms as evidence that Hardin fabricated his story. Hardin told investigators that Waller’s arms were tucked underneath his chest when Hardin found him. But Kathleen Waller, who, according to Hardin, entered the garage around the same time as he arrived (and thus before he removed the gun), recalled that Jerry Waller’s hands were at his sides in a "pushup"-like position. Subsequent crime-scene photographs show Waller with his left arm stretched perpendicular to his body and his right arm laying parallel at his side.

The plaintiffs additionally allege several procedural irregularities in the early stages of the investigation, which they contend to be further evidence of a conspiracy. They allege that the defendants took more than five hours to call the medical examiner in violation of a state law that requires police officers to report an unnatural death to the medical examiner "immediately" upon its discovery.² Tex. Code Crim. Proc. Ann. art. 49.25 § 7(a). They likewise argue that one of the officers violated state law by moving Waller’s body without permission from the medical examiner. See id. § 8. And they allege someone stepped in Waller’s blood and tracked it throughout the garage, further contaminating the crime scene.

B.

Waller’s survivors³ brought 42 U.S.C. § 1983 claims against Hoeppner, Hanlon, Hardin, the City of Fort Worth, and several officers involved in the investigation into Waller’s death. As relevant to this appeal, they alleged that Hoeppner used excessive force against Waller in violation of his Fourth and Fourteenth Amendment rights to be free from unreasonable seizures. They also claimed that Hoeppner, Hanlon, and Hardin conspired to cover up Hoeppner’s use of excessive force in violation of their constitutional right to access the courts. And they sought declaratory relief for violations of analogous rights under the Texas Constitution.

Hoeppner, Hanlon, and Hardin each answered with a qualified-immunity defense to the § 1983 claims. On the district court’s order, the plaintiffs then filed a reply addressing qualified immunity. Hoeppner, Hanlon, and Hardin subsequently moved for judgment on the pleadings, arguing that the plaintiffs’ pleadings were insufficient to overcome their qualified-immunity defenses. The district court determined that the defendants were not entitled to qualified immunity based on the plaintiffs’ well-pleaded allegations and thus denied the defendants’ motions in relevant part.⁴ Specifically, it concluded that the plaintiffs’ allegations, taken as true, established that Waller was not holding a weapon when Hoeppner shot him. Thus, it ruled that the plaintiffs plausibly alleged Hoeppner did not reasonably perceive a threat when he shot Waller in violation of clearly established law. The district court also concluded that the plaintiffs plausibly alleged the defendants conspired to tamper with...