KEITH P. ELLISON, District Judge.
Pending before the Court is the Motion for Summary Judgment (Doc. No. 32) filed by Defendants City of Stafford ("Stafford"), Jesus Estrada ("Officer Estrada"), and Bonny Krahn ("Chief Krahn") (collectively, "Defendants"); the Motion to Dismiss Plaintiffs' First Amended Complaint (Doc. No. 61) filed by Defendants Stafford and Chief Krahn; and the Motions to Quash Deposition Notices and for Protection from Improper Discovery (Doc. Nos. 46-51, 53) filed by non-parties Stafford City Council (the "Council"), various city council members, and Stafford Mayor Leonard Scarcella (collectively, "Movants"). After considering the parties' arguments and the applicable law, the Court finds that the Motion for Summary Judgment should be granted in part and denied in part, that the Motion to Dismiss should be denied; and that the Motions to Quash Deposition Notices should be denied.
This lawsuit arises from the death of Aaron Hobart ("Aaron"), son of Plaintiffs Steve and Pam Hobart (individually, "Mr. Hobart" and "Ms. Hobart"; collectively, "the Hobarts" or "Plaintiffs"). Aaron suffered from a schizoaffective disorder, which resulted in delusions. (Pls.' Ex. 24, Moreland Decl.) Aaron's mental health was deteriorating in the days, weeks, and months leading up to February 18, 2009. For example, on August 25, 2007, Aaron was arrested for reckless driving, and the
Aaron was examined by three doctors during 2008, including two visits with the third, Dr. C. Scott Moreland, a psychiatrist. (Defs.' Ex. 9, 10, 11, Medical Records.) Aaron did not visit Dr. Moreland after September 11, 2008, and Dr. Moreland's records indicate that, contrary to Dr. Moreland's orders, Aaron had stopped taking his Abilify medication in November 2008. (Defs.' Ex. 9, at 178-79.)
On February 18, 2009, Aaron refused to leave his room to go to his doctor's appointment. Mr. Hobart came home from work and joined Aaron in Aaron's room, where he found Aaron speaking "belligerently and abusively" in the same raspy alternate voice. (Steve Hobart Dep., at 20-24.) Mrs. Hobart also called Dr. Moreland, who told her not to press Aaron to attend the appointment that day so that Aaron could calm down. (Defs.' Ex. 9, at 183.) Dr. Moreland also sent a follow-up email to Mrs. Hobart giving her instructions on how to administer Aaron's medication, and providing information from the Houston Crisis Intervention Team ("CIT") website regarding how to request emergency help. (Id. at 184-85.) The information stated that the CIT program "educates patrol officers about mental illness and tactics and techniques to help verbally de-escalate situations involving individuals in serious mental health crises," that one should call for a CIT officer "[w]hen the situation involves a person in a serious mental health crisis," and that, if the situation is an emergency, one should call 911 and request a CIT officer. (Id.) It also noted that "If the person is mentally ill and poses a substantial risk of imminent harm to self or others, Texas Peace officers have the authority to take the individual to a facility for an emergency mental health evaluation, even if the person is
Based on the instructions in Dr. Moreland's email, Mrs. Hobart called 911 and requested a "CIT officer." (Pls.' Ex. 9, Dispatch Transcript, at 1.) She told the 911 operator, "I have a son that needs to be taken," that he was "becoming ... very violent," and that he was "deteriorate" [sic] and "becoming delusional," but that "he's not hurting anyone," and "needs to be in a hospital" and "needs medication." (Id.) The operator informed her that an officer would come to the Hobarts' home. (Id.) A few minutes later, a man from the Stafford Police Department ("SPD") called Mrs. Hobart twice with some questions, and Mrs. Hobart informed him that Aaron was "becoming more and more belligerent" but that he did not have any weapons in his room and that he was not "under the influence." (Id. at 2-3.) Officers Garcia and Claunch from the SPD were the primary officers dispatched on the call, but Officer Estrada was the first to arrive at the Hobarts' home. (Pls.' Ex. 3, Jesus Estrada Dep., June 3, 2010, at 176-78.)
Officer Estrada testified that, prior to arriving at the home, he was aware that Aaron was hallucinating, but did not know if Aaron was mentally ill or was simply under the influence of drugs. (Id. at 138.) Officer Estrada also testified that he believed dispatch had informed him that Aaron did not have a weapon. (Id. at 179.) SPD Sergeant Dustin Claborn ("Sgt. Claborn") testified that Officer Estrada asked dispatch to ask Mrs. Hobart to step outside to talk to him when he arrived. (Pls.' Ex. 2, Dustin Claborn Dep., June 4, 2010, at 126.) However, it is undisputed that when Officer Estrada arrived, Mrs. Hobart let him into the house. (See id. at 128.) Sgt. Claborn also testified that Officer Estrada did not attempt to learn where Aaron was located or whether he was trying to hurt himself or others. (Id. at 127-30.)
The video camera in Officer Estrada's car was running during the events at issue in this case, and both sides have provided that footage as an exhibit. The video shows Officer Estrada enter the Hobarts' home by himself at approximately 15:07:59 on the video's clock. For a period of time only the front yard is visible, with audio from inside the home captured on Officer Estrada's microphone. Immediately after he enters the home, one can hear Officer Estrada conversing with Mrs. Hobart. At approximately 15:08:15, one can hear noises, and Officer Estrada shouts, "Stop!" and "Get back!" several times. At approximately 15:08:20, one can hear gunshots. Officer Estrada then begins shouting, "Goddamnit!" "Shots fired!" and "Oh my god!" and Mrs. Hobart begins screaming loudly. The video then shows two other SPD officers arriving in the house at approximately 15:08:43. They accompany Officer Estrada onto the lawn, where he kneels down with his head on the ground sobbing, and remains panicked during the next seven minutes of video and audio, repeatedly saying, "Oh my god," crying, and stating that he cannot catch his breath.
According to Officer Estrada's testimony, the following occurred in the house: When he first entered, he thought that everything seemed quiet and normal, and "perceived ... that either the disturbance was over or there was no disturbance." (Estrada Dep., at 208-11, 224-25.) Mrs. Hobart let him in, and the two spoke inside the house. (Id. at 209-10.) Officer Estrada then began walking down the hall,
According to Mrs. Hobart's testimony, the following occurred in the house: When Officer Estrada arrived she "was under the impression that ... [she] was getting a CIT person that was going to explain that and was going to go through a certain procedure, so [she] was trusting that they knew what was going to happen next." (Defs.' Ex. 19, Pls.' Ex. 6, Pam Hobart Dep., March 23, 2010, at 168.) Aaron ran from out of his bedroom and toward Officer Estrada while "flailing with his arms." (Id. at 33-35.) When he reached Officer Estrada, "Officer Estrada had his arms up," and Aaron's arms hit Officer Estrada's arms. (Id. at 33-35.) She did not see Aaron's arms hit Officer Estrada's head. (Id. at 35.) Although Mrs. Hobart acknowledged that she did not "see every single strike that Aaron made on Officer Estrada, sufficient to tell us where each one landed," she "watched them the entire time," and only closed her eyes after Officer Estrada pulled gun from its holster but before he fired it. (Id. at 37-40.) The flailing stopped and "2 or 3 seconds passed" before Officer Estrada began shooting. (Id. at 40.) In the few seconds prior to the shooting there was "a separation of 2 or 3 feet" between Aaron and Officer Estrada, and that she had shifted
Officer Estrada fired six or seven bullets in the Hobarts' home, and four struck Aaron: one in the back of the right upper neck, one in the right lower back, one in the back of the right hip, and one in the right middle back. (Pls.' Ex. 22, Autopsy Report, at 4-6.) Officer Estrada did not have any bruises on his face from the incident, although he did have some redness on his face. (Estrada Dep., at 260; Pls.' Ex. 16-21, Photos of Estrada's Injuries.) At the time of his death on February 18, 2009, Aaron was nineteen years old, stood five-foot-nine-inches tall, and weighed 166 pounds. (Pls.' Ex. 22, Autopsy Report, at 3.). He was barefoot and dressed in shorts and a t-shirt. (Id.) There is no suggestion that he had any type of weapon at that time. Officer Estrada stands six-foot-one-inch tall and weighs 190 pounds. (Estrada Dep., at 53-54.)
Defendants filed a Motion to Dismiss (Doc. No. 7) on November 4, 2009. They filed this Motion for Summary Judgment (Doc. No. 32) on August 9, 2010. Also on August 9, Plaintiffs filed a Motion to Compel Depositions of Members of the Stafford City Council (Doc. No. 29). On August 30, 2010, 2010 WL 3419660, the Court issued a Memorandum and Order (Doc. No. 43) granting Plaintiffs' Motion to Compel Depositions on the grounds that the depositions would be relevant to Plaintiffs' claims against Stafford under Monell v. Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and that any applicable legislative privilege could only be invoked by the individual city council members. In that order, the Court indicated that the council members could invoke any applicable privileges if and when their depositions were noticed, and extended Plaintiffs' deadline to respond to the Motion for Summary Judgment until ten days after resolution of the disputes relating to those depositions. Various city council members, along with the Stafford mayor and the Council itself, filed Motions to Quash their deposition notices. (Doc. Nos. 46-51, 53.)
On September 29, 2010, 2010 WL 3894112, the Court issued a Memorandum and Order (Doc. No. 45) granting in part and denying in part the Motion to Dismiss, and granting Plaintiffs leave to file an amended complaint to cure the deficiencies identified in that order.
"To survive a Rule 12(b)(6) motion to dismiss, a complaint `does not need detailed factual allegations,' but must provide the plaintiff's grounds for entitlement to relief — including factual allegations that when assumed to be true `raise a right to relief above the speculative level.'" Cuvillier
Ultimately, the question for the court to decide is whether the complaint states a valid claim when viewed in the light most favorable to the plaintiff. The court must accept well-pleaded facts as true, but legal conclusions are not entitled to the same assumption of truth. Iqbal, 129 S.Ct. at 1950 (citation omitted). The court should not "`strain to find inferences favorable to the plaintiffs'" or "accept `conclusory allegations, unwarranted deductions, or legal conclusions.'" R2 Investments LDC v. Phillips, 401 F.3d 638, 642 (5th Cir.2005) (quoting Southland Sec. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 362 (5th Cir.2004)). Importantly, the court should not evaluate the merits of the allegation, but must satisfy itself only that plaintiff has adequately pled a legally cognizable claim. United States ex rel. Riley v. St. Luke's Episcopal Hosp., 355 F.3d 370, 376 (5th Cir.2004). "Motions to dismiss under Rule 12(b)(6) are viewed with disfavor and are rarely granted." Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 231 (5th Cir. 2009) (internal citation omitted).
A motion for summary judgment requires the Court to determine whether the moving party is entitled to judgment as a matter of law based on the evidence thus far presented. Fed.R.Civ.P. 56(c). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir.2001) (quotations omitted). A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party. Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.2000). The Court views all evidence in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Id.; see also Harvill v. Westward Communications, L.L.C., 433 F.3d 428, 436 (5th Cir.2005) (court may not make credibility determinations or weigh the evidence at the summary judgment stage). Hearsay, conclusory allegations, unsubstantiated assertions, and unsupported speculation are not competent summary judgment evidence. Fed.R.Civ.P. 56(e)(1); see, e.g., Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996); McIntosh v. Partridge, 540 F.3d 315, 322 (5th Cir.2008); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (noting that a non-movant's burden is "not satisfied with `some metaphysical doubt as to the material facts'") (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
Defendants move to dismiss and for summary judgment on several grounds; the Court will address each in turn. In the interest of efficiency, for those claims for which Defendants move both to dismiss and for summary judgment, the Court will address all of Defendants' arguments as part of the summary judgment motion. With respect to the Monell claims against Stafford, however, Plaintiffs' have not yet been required to respond to the Motion for Summary Judgment, so the Court will address only the Motion to Dismiss.
Defendants first argue that the Hobarts lack standing to bring claims in their individual capacities. In support of this contention they point to cases holding that "all persons who claim a deprivation of constitutional rights" are "required to prove some violation of their personal rights." Coon v. Ledbetter, 780 F.2d 1158, 1160 (5th Cir.1986) (citing Dohaish v. Tooley, 670 F.2d 934 (10th Cir.1982)). However, Plaintiffs do claim deprivation of their individual constitutional rights, for injuries suffered as a result of the wrongful death of their son. The Fifth Circuit has clearly held that those "within the class of people entitled to recover under Texas law for the wrongful death of a child" are eligible "to recover under § 1983 for her own injuries resulting from the deprivation of her son's constitutional rights." Rhyne v. Henderson County, 973 F.2d 386, 391 (5th Cir.1992). Texas law makes clear that the parents of the deceased are eligible beneficiaries in a wrongful death action. Tex. Civ. Prac. & Rem.Code § 71.004(a) (Vernon 2008); see Valle v. City of Houston, 613 F.3d 536, 541 (5th Cir.2010). Accordingly, the Court finds that the Hobart have standing to bring a wrongful death claim on behalf of themselves under Section 1983.
Defendants argue that Plaintiffs have not proven a violation of the Fourth Amendment by Officer Estrada, and even if they have, Officer Estrada is entitled to qualified immunity. The Court disagrees, and finds that Officer Estrada is not entitled to summary judgment on this claim.
"To prevail on a Fourth Amendment excessive-force claim, a plaintiff must establish: (1) an injury; (2) that the injury resulted directly from the use of excessive force; and (3) that the excessiveness of the force was unreasonable." Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (quoting Freeman v. Gore, 483 F.3d 404, 416 (5th Cir.2007)). "It is objectively unreasonable to use deadly force `unless it is necessary to prevent a suspect's escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.'" Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir. 2004) (quoting Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). Conversely, "[a]n officer's use of deadly force is presumptively reasonable when the officer has reason to believe that the suspect poses a threat of serious harm to the officer or to others." Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir.2009) (citing Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir.2003)). Further, "`[t]he `reasonableness' of a particular
First, there is no dispute that there has been an injury — the death of Aaron Hobart. Second, whether Officer Estrada's conduct was clearly excessive and unreasonable turns on whether Officer Estrada had probable cause to believe that Hobart posed a significant threat of death or serious physical injury to Officer Estrada or to others. Id. There is conflicting evidence on this question, and a reasonable jury could find that Officer Estrada lacked such probable cause. When she called 911, Mrs. Hobart specifically requested that a CIT officer be dispatched. (Doc. No. 72, Ex. 9, at 1.) She told the dispatcher that Aaron was becoming delusional and very violent, but that he was not hurting anyone and needs medication and to be in a hospital. (Doc. No. 72, Ex. 9, at 1.) Therefore, based on the 911 call, there was reason for Officer Estrada or other police officials to believe that Hobart could potentially be violent, but not that he had committed any crime or hurt anyone. After he entered the house, Officer Estrada claims he heard a "roar" from Aaron, but the Hobarts deny that Aaron made such a noise, and it is (at the very least) not readily apparent from the audio recording of the incident that such a noise occurred.
Mrs. Hobart testified that the flailing stopped and "2 or 3 seconds passed" before Officer Estrada began shooting. (Id. at 40.) She also testified that in the few seconds prior to the shooting there was "a separation of 2 or 3 feet" between Aaron and Officer Estrada, and that she had shifted her weight to go between the two, at which point Officer Estrada pulled out his gun. (Id.) Accordingly, if a jury were to credit Mrs. Hobart's testimony, it could reasonably conclude that Officer Estrada faced only minor physical contact from Aaron, and that such contact ended and the two men were separated for multiple seconds prior to Officer Estrada pulling out his gun and shooting Aaron approximately six times. Under that factual scenario, Officer Estrada would lack probable cause to believe that Aaron posed a significant threat of death or serious physical injury to Officer Estrada or to others, and shooting Aaron in the manner that he did would be clearly excessive and unreasonable.
Summary judgment is particularly inappropriate on the question of whether the use of force was excessive, as the "balancing test requires careful attention to the facts and circumstances of each particular case." Flores, 381 F.3d at 399 (citation omitted). The facts and circumstances are difficult to discern conclusively in this case, as the only available accounts of the critical events an audio recording and two witnesses, both of whom appear to have been experiencing strong emotional reactions that may have impaired their consciousness and recollection. Viewing the summary judgment facts in the light most favorable to the non-movants, there remain genuine issues of material fact on this question.
Defendants contend that, even if Officer Estrada's conduct violated the Fourth Amendment, he is protected by the doctrine of qualified immunity. Officials sued in their individual capacities are protected by qualified immunity unless the act violates a constitutional right clearly established at the time. Sanchez v. Swyden, 139 F.3d 464, 466-467 (5th Cir.1998). "The doctrine of qualified immunity serves to shield a government official from civil liability for damages based upon the performance of discretionary functions." Cozzo v. Tangipahoa Parish Council, 279 F.3d 273, 284 (5th Cir.2002). To avoid summary judgment, a plaintiff also must present evidence to raise a fact issue "material to the resolution of the questions whether the defendants acted in an objectively reasonable manner in view of the existing law and facts available to them." Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir.1993).
To determine whether the plaintiff has overcome the presumption of qualified immunity, the Court first considers whether the plaintiff has proven a violation of a clearly established constitutional right. Collins v. Ainsworth, 382 F.3d 529, 537 (5th Cir.2004). A right is "clearly established" if its contours are "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). If that prong is met, the court must consider whether the defendant's "actions were objectively reasonable" in light of "law which was clearly established at the time of the disputed action." Collins, 382 F.3d at 537. "The touchstone of this inquiry is whether a reasonable person would have believed that his conduct
In February 2009, when Aaron Hobart's shooting death occurred, it was clearly established that "`deadly force violates the Fourth Amendment unless the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.'" Bazan v. Hidalgo County, 246 F.3d 481, 488 (5th Cir.2001) (quoting Garner, 471 U.S. at 11, 105 S.Ct. 1694); see Meadours v. Ermel, 2005 WL 1923596, at *9 (S.D.Tex. Aug. 10, 2005) ("the law is clearly established that an officer can use deadly force only when he has probable cause to believe that a suspect poses a threat of death or serious harm to the officer or others"). The threat of physical harm must be immediate. Garner, 471 U.S. at 11, 105 S.Ct. 1694. As discussed above, Mrs. Hobart's testimony and other evidence (such as the lack of injuries to Officer Estrada) support Plaintiffs' claim that Officer Estrada did not have probable cause to believe Aaron posed a threat of death of serious physical harm, let alone an immediate threat. Shooting Aaron under that circumstance would violate clearly established law at the time. "[I]n the light of pre-existing law the unlawfulness [would] be apparent." Anderson, 483 U.S. at 640, 107 S.Ct. 3034. Thus, genuine issues of material fact remain on this question, and Plaintiffs have presented evidence of a violation of a clearly established constitutional right sufficient to defeat summary judgment.
Next, viewing the evidence in the light most favorable to Plaintiffs, the Court finds that Officer Estrada's conduct was not objectively reasonable. That is to say, if the jury credits Plaintiffs' version of the facts, no reasonable officer in Officer Estrada's circumstances would have believed his conduct to be lawful. Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir. 2001). Given the clearly established law at the time, no reasonable officer would have believed that it was legal to shoot repeatedly at a young man whom the officer had no reason to believe had a weapon and who merely hit the officer's arms with his flailing arms before multiple seconds passed with a two- or three-foot gap between the two men.
Officer Estrada testified that he was blacking out at the time of the shooting, to the point that he did not even know who was shooting the gun. However, those subjective circumstances are not relevant to this objective prong. See Cozzo v. Tangipahoa Parish Council — President Government, 279 F.3d 273, 284 (5th Cir.2002) ("an individual defendant's subjective state of mind is irrelevant to the qualified immunity inquiry"). Even if a police officer who uses deadly force believed he is at risk of death or serious injury, he is not entitled to qualified immunity if that belief was objectively unreasonable. For example, if an officer were under the influence of alcohol, or if his mental state caused him to panic such that he unreasonably determine that a threat was present, that would not render his determination reasonable.
Plaintiffs provide evidence of a factual scenario under which Officer Estrada's use of force would constitute a violation of clearly established Fourth Amendment law, and which no reasonable officer could interpret to be otherwise. That is not to say that the jury will credit the competing evidence in that manner, but simply to say
Municipalities are considered "persons" who may be sued directly under Section 1983. Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). However, "a municipality cannot be held vicariously liable for the constitutional torts of its employees or agents." Gros v. City of Grand Prairie, Tex., 181 F.3d 613, 615 (5th Cir. 1999) (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018). A local government may be sued under Section 1983 "`if it is alleged to have caused a constitutional tort through a policy statement, ordinance, regulations, or decision officially adopted and promulgated by that body's officers.'" Zarnow v. City of Wichita Falls, 614 F.3d 161, 166 (5th Cir.2010) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 121, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion)). To establish municipal liability under Section 1983, a plaintiff must prove three elements: 1) a policymaker; 2) an official policy; and 3) a violation of constitutional rights whose moving force is the policy or custom. Id. (quotations omitted).
In the September 29 Order, the Court found that Plaintiffs had not stated a claim against Stafford. The Court found that Plaintiffs met the first element by adequately pleading that Chief Krahn is an official policymaker for the City of Stafford. However, the Court found, Plaintiffs failed to meet the second element of proving the existence of an official custom or policy. In their Amended Complaint, Plaintiffs provide additional allegations regarding the claim against Stafford. Stafford again moves to dismiss for failure to state a claim upon which relief may be granted.
With regard to the first prong, "only those municipal officials who have `final policymaking authority' may by their actions subject the government to § 1983 liability." Praprotnik, 485 U.S. at 123, 108 S.Ct. 915 (plurality opinion) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion)).
In this case, Plaintiffs allege that Chief Krahn "is an official policymaker." (Doc. No. 54, ¶ 63.) They also allege:
(Id. at ¶ 64.) These allegations, if proven true, would support a finding that Chief Krahn is a final policymaker for the City of Stafford. Even if Chief Krahn has not been explicitly delegated final policymaking authority, "absent a contrary regulation or ordinance, a city council's ... continuous refusal to exercise some theoretical authority to review a municipal official's policy decisions will, at some point, establish the municipal official as the final policymaking authority by custom or usage having the force of state law." Gros, 181 F.3d at 616 n. 2; see also Worsham v. City of Pasadena, 881 F.2d 1336, 1341 (5th Cir.1989) ("Rule 12(b)(6) dismissal could be improper ... where it is based solely on a theoretical right of review because a plaintiff may be able to demonstrate that such review is ineffective and meaningless."); Crowder v. Sinyard, 884 F.2d 804, 829 (5th Cir.1989) (notwithstanding "formal subservice of the Chief of Police to city officials," chief could be considered final policymaker where his uncontradicted testimony "indicate[d] that the city manager delegated all power regarding the city's law enforcement activities to [him]" and, "except as to the department's budget, city officials exercise no control over the department's activities, policies, or procedures"), overruled in part on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); Bishop v. McCollum, 1994 WL 1890218, at *2 (N.D.Miss. Sept. 27, 1994) (holding that chief of police was policymaker based on, among other things, chief of police's deposition testimony). Accordingly, Plaintiffs have alleged that Chief Krahn was a "final policymaker" sufficiently to meet the first prong.
With regard to the second prong, a plaintiff may prove the existence of an "official policy" in one of two ways: 1) by pointing "to a policy statement formally announced by an official policymaker"; or 2) by demonstrating "a persistent widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy." Zarnow, 614 F.3d at 168-69 (citation omitted). The latter type of policy may itself come in one of two forms: 1) "a pattern of unconstitutional conduct may be shown on the part of municipal actors or employees" who "are not policymakers"; or 2) "a final policymaker took a single unconstitutional action." Id. at 169 (emphases in original).
The failure to train municipal employees may also constitute a "policy," but only when it "reflects a `deliberate' or `conscious' choice by a municipality." City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Thus, although municipalities are not normally liable for inadequate training of employees, failure to properly train constitutes an
In their Amended Complaint, Plaintiffs allege the existence of a policy in several ways. First, they allege customs in Stafford police practices that were "so common and well settled as to constitute a custom that fairly represents municipal policy." Zarnow, 614 F.3d at 168-69. The alleged customs primarily concern the lack of policies regarding how emergency dispatchers and police officers should handle calls and encounters involving mentally ill people. For example, Plaintiffs allege:
(Doc. No. 54, ¶ 66.) However, Plaintiffs also allege a custom, practice, or policy that includes "[a]llowing, encouraging, requiring, and training officers to use deadly weapons in lieu of less harmful techniques, including non-lethal physical restraints or proper detention techniques," "to use deadly force as a first resort, rather than training them to assess the situation and use only necessary force," and "to confront mental health detainees in such a way as to lead to the officer's use of excessive force." (Id. at ¶ 71(a)(c).) Specifically, Plaintiffs allege, "the City trains officers to assess situations according to an `action/reaction' motive. The City trains officers
With regard to their allegations based on the lack of policies, Plaintiffs point to no authority that the failure to create policies in a certain area can constitute an unconstitutional custom or practice. With regard to the other allegations, however, Plaintiffs point to a specific type of training they allege that Stafford applies — the "action/reaction motive" — and allege specifically that officers are trained to use deadly force "as a first resort" and "before a person has a chance to act." If proven true, such a custom or practice would violate the Constitution by instructing officers to use more force than the Fourth Amendment permits. The Court finds that Plaintiffs' allegations are sufficiently particular and not conclusory.
Plaintiffs also allege the existence of a policy on the basis that Stafford was deliberately indifferent in failing to train and/or supervise its police officers and emergency dispatchers regarding how to handle calls and encounters involving mental ill people. Specifically, they argue that Stafford failed to provide training for:
(Id. at ¶ 53.) Plaintiffs also now allege that the city "knew and acknowledged that there would be recurring situations involving emergency calls relating to encounters with mentally ill citizens" and "knew and acknowledged the potential for constitutional violations with respect to lack of training in firearms and appropriate use of force," yet failed to train its officers in those areas. (Id. at ¶ 56, 58.) Plaintiffs allege that the city and Chief Krahn were aware of a "Community Plan" that "was developed that acknowledged the ongoing pattern of conduct that constituted constitutional violations of the mentally ill citizens of Fort Bend County," yet provided no additional training and supervision in the deficient areas. (Id. at ¶ 57.) They also allege that Stafford "was aware specifically of a pattern of conduct on the part of Officer Estrada of constitutional violations from conduct evidencing lack of judgment, lack of common sense, lack of safe practices," yet failed to properly train or supervise him. (Id. at ¶ 59.)
Plaintiffs acknowledge that they "do not have information reflecting a pattern of injuries from constitutional violations," but instead contend that the relevant inquiry is "whether there has been a pattern of unconstitutional conduct." (Doc. No. 62, at 11 (emphases in original).) The Court acknowledges the logic behind a rule allowing failure to train liability based on showing a pattern of actions that greatly risked injury to third parties but did not actually injure anyone until the instant plaintiff. However, such an approach has been foreclosed by binding precedent, which requires a showing that the prior act "involved injury to a third party" to establish a pattern of misconduct for failure to train liability. Valle, 613 F.3d at 547; see also Estate of Davis, 406 F.3d at 383; Snyder, 142 F.3d at 798 (5th Cir.1998); Rodriguez, 871 F.2d at 554-55 (5th Cir.1989).
The Court does find, however, that Plaintiffs have stated a claim under the narrow "single incident exception." In other words, Plaintiffs have alleged facts that, if proven true, would support a finding that Aaron's death was the "highly predictable consequence" of Stafford's fail to train its employees. Plaintiffs allege that Chief Krahn and others were aware of the inadequacies in training with regard to mental health issues and use of force in Stafford as a whole, and with regard to Officer Estrada in particular. Moreover, Plaintiffs allege that the inadequacies were so severe that it was known or obvious to Officer Krahn and others that a death such as Aaron's — from excessive force used against a mentally ill person — was the inevitable consequence of those inadequacies.
This holding finds support in the Fifth Circuit's decision in Brown, 219 F.3d 450. After the Supreme Court held that the county in that case was not liable under the single incident exception for hiring a police officer who used excessive force, 520 U.S. 397, 117 S.Ct. 1382, the Fifth Circuit held that the county was liable under that exception for failure to train the officer. The court reasoned that the sheriff "knew that all law enforcement officers, unless expressly restricted, will face situations calling for the application of force," and that "there was an even greater magnitude
Defendants argue that, as a matter of law, they cannot be liable for a failure to train claim because SPD officers were certified under the Texas Commission on Law Enforcement Officer Standards and Education ("TCLEOSE") training standards. The Court disagrees with that argument for two reasons. First, Plaintiffs allege in a non-conclusory manner that Officer Estrada received inadequate training, and at the motion to dismiss stage all well-pleaded facts must be taken as true. Indeed, the summary judgment briefing with regard to Chief Krahn makes clear that the parties vigorously dispute whether Officer Estrada indeed received the training mandated by TCLEOSE. Second, the Court disagrees that compliance with state-mandated training requirements automatically precludes liability for failure to train. The Court does not read any of the Fifth Circuit cases cited by Defendants (all of which concerned summary judgment, not motions to dismiss) to hold that state requirements provide such per se immunity. See Zarnow, 614 F.3d at 170-71; Roberts, 397 F.3d at 293-95; Baker v. Putnal, 75 F.3d 190, 200 (5th Cir.1996); Benavides v. County of Wilson, 955 F.2d 968, 973 (5th Cir.1992). Those cases treat compliance with state training requirements as a relevant but not dispositive factor. See Zarnow, 614 F.3d at 171 ("We consider compliance with state requirements as a factor counseling against a `failure to train' finding.") (emphasis added). So, for example, the court in Benavides approached the issue as follows:
955 F.2d at 973.
With regard to the third prong, a plaintiff must prove that the municipal policy was the "`moving force' behind the injury alleged." Brown, 520 U.S. at 404, 117 S.Ct. 1382. That is, the plaintiff "must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Id. In this case, Plaintiffs allege that Stafford's customs and practices, along with its failure to train its employees, were the cause of Aaron's death. (Doc. No. 54, ¶¶ 52, 56, 60, 66, 67, 69.) The Court finds that, if Plaintiffs' allegations are proven true, it is plausible that the unconstitutional policies were the "moving force" behind Aaron's death. See, e.g., Brown, 219 F.3d at 463-65 (finding sufficient evidence that failure to train officer was moving force behind plaintiff's injury). Accordingly, Plaintiffs have made sufficient allegations to meet the third prong of municipal liability.
Both the Motion to Dismiss and Motion for Summary Judgment on the claims against Chief Krahn are now fully briefed. However, there is significant factual and legal overlap between these claims and those against Stafford. Accordingly, the Court will defer ruling on these claims until the Motion for Summary Judgment on the claims against Stafford is fully briefed.
Defendants also move to dismiss and for summary judgment on Plaintiffs' claims against Stafford under Title II of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act. Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or
Plaintiffs allege that Stafford, a public entity, violated the ADA and the Rehabilitation Act in numerous ways, including: failing and refusing to accommodate police department operations for mental health service calls, failing and refusing to adopt a policy to protect persons with mental illnesses, discriminating in the provision of police services and emergency responses, and failing to conduct a self-evaluation plan for programs and services affecting persons with mental illnesses. In the September 29 Order, the Court recognized that Title II of the ADA can apply to arrests. (Doc. No. 45, at 19 (citing Morais v. City of Philadelphia, 2007 WL 853811, at *11 (E.D.Pa. Mar. 19, 2007)).) The Court further held that Plaintiffs had stated a claim under the "reasonable accommodation" theory, "under which the police properly investigate and arrest a person with a disability for a crime unrelated to that disability, but fail to reasonably accommodate the disabled person's disability in the course of investigation or arrest, `causing the person to suffer greater injury or indignity in that process than other arrestees.'" (Id. at 19 (citing Morais, 2007 WL 853811, at *11).) The Court found it plausible that Aaron had been denied the accommodation "for the police `to refrain from taking aggressive action against [him] until he presented an immediate threat to human life." (Id. at 19-20 (citing Morais, 2007 WL 853811, at *11); see also Morais, 2007 WL 853811, at *12 ("the lawful exercise of police power is a benefit of the services, programs, or activities of a public entity"); Schorr v. Borough
Defendants argue that there is no evidence that 1) Aaron is an "individual with a disability"; 2) Defendants knew that Aaron was an individual with a disability; or 3) Aaron was subjected to intentional discrimination due to a disability. They also argue that this case falls within the exception to ADA coverage for "an officer's on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer's securing the scene and ensuring that there is no threat to human life." Hainze, 207 F.3d at 801.
As a preliminary matter, Plaintiffs have not alleged intentional discrimination anywhere in their complaint. Therefore, under Fifth Circuit precedent, they may not recover compensatory damages under the ADA or the Rehabilitation Act. See Delano-Pyle, 302 F.3d at 574. They may, however, still be entitled to declaratory or injunctive relief. See Carter v. Orleans Parish Public Schools, 725 F.2d 261, 263-64 & n. 7 (1984).
With regard to the first prong for liability, the Court finds that Plaintiffs have presented evidence that Aaron was "a person with a disability" within the meaning of the ADA. In addition to Aaron's medical records, Plaintiffs present an affidavit from Dr. Moreland stating, based on his experience treating Aaron:
(Pls.' Ex. 24.) Dr. Moreland concludes:
Id. Accordingly, the Court finds that Plaintiffs have, at a minimum, raised a genuine issue of material fact as to whether Aaron was a "qualified individual with a disability."
With regard to the second prong for liability, as discussed above, Plaintiffs have now presented evidence raising a material issue of fact as to whether Officer Estrada could reasonably have believed that Aaron posed an immediate threat of death or serious injury. Therefore, there remains a factual issue as to whether Aaron was "excluded from participation in, or being denied benefits of, services, programs, or activities for which the public entity is responsible." Melton, 391 F.3d at 671.
With regard to the third prong, the Court finds that factual issues remain as to whether Aaron was denied benefits or discriminated against because of his disability. In Hainze, the Fifth Circuit held that the plaintiff "was not denied the benefits and protections of Williamson County's mental health training by the County, Sheriff Richards, or the officers," but rather by his own assault of an officer with a deadly weapon. 207 F.3d at 801. In the instant case, by contrast, Plaintiffs have presented sufficient evidence to raise factual issues as to whether Aaron's actions could reasonably have been interpreted to present any serious threat, let alone "threat of
This is in line with cases in other courts that have factually distinguished Hainze. In Morais, a factual issue remained as to whether the decedent "pose[d] a threat to innocent parties," so the court found that the police "were not facing the type of pressurized situation that the Fifth Circuit seemed to be contemplating in Hainze," and denied summary judgment. 2007 WL 853811, at *12. In Spencer v. Dawson, 2006 WL 3253574 (N.D.Ill. Nov. 7, 2006), the court denied summary judgment because, although it was uncontested that the plaintiff was physically manifesting his anger when he was pepper-sprayed, there was a factual issue as to whether he was threatening anyone's safety. Id. at *7. And in Salinas v. City of New Braunfels, 557 F.Supp.2d 771 (W.D.Tex.2006), the court denied the city's motion to dismiss because the deaf plaintiff alleged that the scene had been secure, that she had not posed a threat to the safety of the officers, and that she had requested and been denied an interpreter. Id. at 776; see also Hogan v. City of Easton, 2004 WL 1836992, at *7 n. 3 (E.D.Pa. Aug. 17, 2004); but see DeLeon v. City of Alvin Police Dep't, 2010 WL 4942648, at *3-4 (S.D.Tex. Nov. 30, 2010) (finding that reasonable accommodation theory did not apply because exigent circumstances existed).
Finally, Defendants contend that the ADA and Rehabilitation Act claims fail because Stafford did not know that Aaron had a disability. "[T]he accommodation provisions of the ADA and RA do not require public entities to `guess' an individual's need for an accommodation." McCoy v. Texas Dep't of Criminal Justice, 2006 WL 2331055, at *7 (S.D.Tex. Aug. 9, 2006). Instead, a plaintiff must show either that he requested an accommodation or that "defendant otherwise had knowledge of an individual's disability and needs, but took no action." Id. In this case, it is undisputed that Mrs. Hobart requested a CIT officer and told the emergency dispatcher that Aaron was "becoming delusional," "needs to be in a hospital," and "needs medication." (Pls.' Ex. 9, Dispatch Transcript, at 1-3.) An SPD employee then called Mrs. Hobart two more times with followup questions, including those that the officers on their way to the Hobarts' house "wanted to know." (Id. at 2-3.) The Court finds that, at a minimum, a factual issue remains as to whether Stafford knew that Aaron was disabled.
Accordingly, Plaintiffs have presented sufficient evidence that Stafford violated Aaron's rights under the ADA and the Rehabilitation Act to raise factual issues that preclude summary judgment.
Defendants also move to dismiss and for summary judgment on Plaintiffs' claims under Texas common law. "Under the common-law doctrine of sovereign immunity, a municipality is immune from tort liability for its own acts or the acts of its agents unless the Texas Tort Claims Act [`TTCA'] waives immunity." City of Amarillo v. Martin, 971 S.W.2d 426, 427 (Tex.1998). "For a governmental entity to be held liable for the acts of its employee under the TTCA: (1) the claim must arise under one of three specific areas of liability; and (2) the claim must not fall within an exception to the waiver of
Section 101.102(a) provides, "A suit under this chapter shall be brought in state court in the county in which the cause of action or a part of the cause of action arises." Contrary to Defendants' argument, "the federal district courts in this circuit have consistently held that `this "venue" statute does not defeat federal jurisdiction over lawsuits brought under the Act.'" Jackson v. Sheriff of Ellis County, Texas, 154 F.Supp.2d 917, 920 (N.D.Tex.2001) (quoting Mifsud v. Palisades Geophysical Institute, Inc., 484 F.Supp. 159, 161 (S.D.Tex.1980)). This court has original jurisdiction over Plaintiff's federal claims, and thus has supplemental jurisdiction over their related state law claims under 28 U.S.C. § 1367. See id.; see also Lester v. Terry County, Texas, 353 F.Supp. 170 (N.D.Tex.1973) ("it is doubtful under the supremacy clause of the United States Constitution, Art. 6, cl. 2, whether a state could constitutionally deprive a federal court of jurisdiction which the Congress of the United States had otherwise given it").
Section 101.021 provides a waiver of sovereign immunity for certain types of torts. Plaintiffs contend that their claims against Stafford fall within the waiver because they claim "personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code § 101.021(2) (Vernon 2005). Specifically, Plaintiffs contend that Officer Estrada's gun qualifies as tangible personal property. To state a claim based on that waiver provision:
Gonzales v. City of El Paso, 978 S.W.2d 619 (Tex.App.-El Paso 1998, no pet.). The Texas Supreme Court has held that the waiver in Section 101.021(2) provides for governmental liability both on the basis of respondeat superior and for premises defects. DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex.1995). When the basis for liability is respondeat superior and the employee is entitled to official immunity, so too is the government entity. Id. at 654.
Defendants do not seem to contest that Plaintiffs have met the requirements set forth in Gonzales. Instead, Defendants argue that "there can be no waiver of the City's governmental immunity for Officer Estrada's use of his handgun because he cannot be held liable to the Plaintiffs under Texas law in light of his individual immunity." (Doc. No. 61, at 21.) "Texas law of official immunity is substantially the same as federal qualified immunity law." Wren v. Towe, 130 F.3d 1154, 1160 (5th Cir.1997). Defendants do not suggest any difference between state and federal immunity law that would be relevant here. Accordingly, because the Court has held that Officer Estrada is not entitled to qualified immunity at the summary judgment stage, it follows that he is not entitled to immunity under Texas law. Therefore, Plaintiffs' claims are not barred by Section 101.021.
Section 101.055 carves out exceptions to the waiver of sovereign immunity found in Section 101.021. Plaintiffs contend that their claims do not fall within the exception to the waiver of sovereign immunity for "Emergency Responses" or "Failure to Provide or Method of Providing Police Protection." Section 101.055(2) excludes from the waiver of immunity claims arising "from the action of an employee while responding to an emergency call or reacting to an emergency situation... if the action is not taken with conscious indifference or reckless disregard for the safety of others." To avoid dismissal under that subsection, Plaintiffs must show that Officer Estrada's action was "taken with conscious indifference or reckless disregard for the safety of others." Under Texas law, an act is "reckless" if the actor "knew or should have known" that it "posed a high degree of risk of serious injury." Martin, 971 S.W.2d at 430. The Court holds today that a reasonable jury could find that Officer Estrada acted even though no reasonable officer in his circumstances would have believed his conduct to be lawful. If Officer Estrada shot Aaron numerous times even though Aaron posed no threat of death or serious injury, that would constitute a "reckless" action. Accordingly, Stafford is not entitled to summary judgment based on Section 101.055(2).
Section 101.055(3) excludes from the waiver of immunity claims arising "from the failure to provide or the method of providing police or fire protection." Defendants argue on this basis that Stafford is immune from a claim of negligent formulation of policy, notwithstanding artful pleading seeking to avoid that limitation. However, "[w]hile a governmental unit is immune from liability for the negligent formulation of policy, the negligent implementation of policy will subject a governmental
Finally, Section 101.057(2) excludes from the waiver of sovereign immunity claims "arising out of assault, battery, false imprisonment, or any other intentional tort." Plaintiffs state that they only bring state law claims "for the wrongful death caused by the carelessness, recklessness, negligence, and grossly negligent misuse of tangible personal property." (Doc. No. 73, at 25.) Defendants argue that Section 101.057 bars the claims because "Officer Estrada intentionally shot Hobart." (Doc. No. 33, at 42.) The Court agrees that Plaintiffs' claims are barred by this provision.
"Where the essence of a claim under the TTCA arises from an intentional tort, allegations of negligence are insufficient to avoid the § 101.057 exception to liability." Holland, 41 F.Supp.2d at 713. Thus, in Petta, the Texas Supreme Court held that the plaintiff's claim for negligence was barred because the conduct she complained of was "the same conduct that forms the basis of her assault and battery claim against" the officer, and the "specific conduct" was "clearly intentional." 44 S.W.3d at 580.
In the police shooting context, the court in Harris County v. Cabazos, 177 S.W.3d 105 (Tex.App.-Houston [1 Dist.] 2005, no pet.), seemed to consider both factors — whether the act was intentional and whether the actor intended to cause the injury — and concluded that the officer's shooting of the plaintiff was an "intentional tort[] intended to cause injury to appellee," rather than an "act[] of negligence." Id. at 111-13. Likewise, the federal district court in Huong held that TTCA claims based on an a fatal shooting by an officer were barred because the plaintiffs "described their claims arising from the shooting as the intentional tort of excessive force," and, "regardless of the language used, it is clear that Plaintiffs' claims consist of intentional torts." 961 F.Supp. at 1008-09. And in Holland, a court in this district applied the "intentional act" inquiry to conclude that a police shooting was an intentional tort because there was "no allegation and no evidence in the record that [the officer] did not intend to shoot [the plaintiff]," and "no indication ... that the gun misfired or discharged inadvertently." 41 F.Supp.2d at 713.
In this case, whether the Court considers the intent to act or the intent to injure, summary judgment is appropriate on this claim. Plaintiffs have not alleged, or presented evidence, that Officer Estrada's gun discharged inadvertently. Nor have they alleged, or presented evidence, that Officer Estrada did not intend to injury Aaron when he shot him. Indeed, in seeking punitive damages, Plaintiffs also allege in their Amended Complaint that Estrada acted "willfully" and "intentionally." (Doc. No. 54, ¶ 40.) "[T]he fact that an action for an intentional tort is barred does not prevent an injured party from pursuing a claim for simple negligence arising out of the same facts." Hucker v. City of Beaumont, 144 F.Supp.2d 696, 708 (E.D.Tex.2001) (citing cases). However, unlike in Durbin, for example, Plaintiffs have presented no evidence supporting a finding of negligence rather than intent to shoot and to injure.
Plaintiffs argue that their claims do not arise from an intentional tort because they allege only the tort of wrongful death. Texas law provides, "A person is liable for damages arising from an injury that causes an individual's death if the injury was caused by the person's or his agent's or servant's wrongful act, neglect, carelessness, unskillfulness, or default." Tex. Civ. Prac. & Rem.Code § 71.002(b) (Vernon 2008). The Court agrees that a claim based on negligence that caused death would not be barred by the intentional tort exception of the TTCA. However, as the cases discussed above illustrate, courts in Texas have squarely rejected reliance solely on the name used by a plaintiff to describe the tort, in favor of a functional inquiry that considers whether the alleged misconduct constitutes an intentional tort. See Holland, 41 F.Supp.2d at 714 ("Plaintiffs cannot circumvent the intentional tort
Also pending are Motions to Quash Deposition Notices and for Protection from Improper Discovery filed by the Stafford City Council, council members, and the Mayor of Stafford. (Doc. Nos. 46-51, 53.) Plaintiffs seek to depose council members on the subject of whether Chief Krahn was the relevant final policymaker for purposes of Stafford's municipal liability. Movants ask the Court to bar any such depositions on the grounds that they are irrelevant and that they are barred by absolute legislative privilege.
Federal Rule of Civil Procedure 26(b)(1) provides:
"A party asserting a privilege exemption from discovery bears the burden of demonstrating its applicability." In re Santa Fe Int'l Corp., 272 F.3d 705, 710 (5th Cir.2001).
The U.S. Constitution provides that, "for any speech or debate in either House, [Senators and Representatives] shall not be questioned in any other place." U.S. Const. art. I, § 6. The Speech or Debate Clause affords members of the U.S. Congress absolute immunity from liability for activities taken within the sphere of legitimate legislative activity. Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 501, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975). It also provides an evidentiary privilege "against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts." United States v. Gillock, 445 U.S. 360, 366-67, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980) (quoting United States v. Helstoski, 442 U.S. 477, 489, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979)).
However, "the Supreme Court has unequivocally ruled that the embrace of the clause does not extend to a state legislator." Cole v. Gray, 638 F.2d 804, 810 (5th Cir.1981) (citing Gillock, 445 U.S. 360, 100 S.Ct. 1185); see also Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 404, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979). Under federal common law, state and local legislators are absolutely immune from civil liability for their legislative activities. See Bogan v. Scott-Harris, 523 U.S. 44, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998). But the Supreme Court in Gillock ruled that, in contrast to the privilege enjoyed by federal legislators, there is no absolute "evidentiary privilege for state legislators for their legislative acts." 445 U.S. at 373, 100 S.Ct. 1185.
Following Gillock, some courts have applied an absolute evidentiary privilege in civil cases for state and local legislators within the realm of legitimate legislative activity. See, e.g., Miles-Un-Ltd., Inc. v. Town of New Shoreham, 917 F.Supp. 91, 98 (D.N.H.1996); see Kay v. City of Rancho Palos Verdes, 2003 WL 25294710, at *12-13 (C.D.Cal. Oct. 10, 2003) (citing cases). Other courts have held that, in civil cases, "any such privilege must be qualified, not absolute, and must therefore depend on a balancing of the legitimate interests on both sides." See, e.g., In re Granite Purchases for State Capital, 821 F.2d 946, 957 (3d Cir.1987); Kay, 2003 WL 25294710, at *13-14 (citing cases). For example, the court in Manzi v. DiCarlo, 982 F.Supp. 125 (E.D.N.Y.1997), found that the evidentiary privilege did not apply because "the discovery and trial needs of plaintiff in enforcing her rights under federal law clearly outweigh the State Defendants' need for confidentiality." Id. at 129. The court in Kay analyzed both approaches and concluded that a qualified, rather than absolute, privilege based on balancing the competing interests was "the better, and controlling, legal rule." 2003 WL 25294710, at *14.
With regard to the first factor, the federal interests are strong in this case. First, there is a very strong federal interest in the enforcement of civil rights statutes that provide remedies for violations of the U.S. Constitution. See, e.g., Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) ("The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights — to protect the people from unconstitutional action under color of state law, whether that action be executive, legislative, or judicial."); Burnett v. Grattan, 468 U.S. 42, 55, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984) (rejecting application of state statute of limitations because its "policy is manifestly inconsistent with the central objective of the Reconstruction-Era civil rights statutes, which is to ensure that individuals whose federal constitutional or statutory rights are abridged may recover damages or secure injunctive relief"). Second, the information sought by Plaintiffs through deposing council members is relevant to their claims against the city. Although Defendants contend that the Council was the only final policymaker for purposes of municipal liability, Plaintiffs argue that Chief Krahn was actually the final policymaker. In order to determine the identity of the final policymaker, the district court must review "the relevant legal materials, including state and local positive law, as well as `custom or usage' having the force of law." Jett, 491 U.S. at 737, 109 S.Ct. 2702 (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 124 n. 1, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion)). "[A] city council's ... continuous refusal to exercise some theoretical authority to review a municipal official's policy decisions will, at some point, establish the municipal official as the final policymaking authority by custom or usage having the force of state law." Gros, 181 F.3d at 616 n. 2; see also Zarnow v. City of Wichita Falls, 614 F.3d 161, 167 (5th Cir.2010) ("A city's governing body may delegate policymaking authority (1) by express statement or formal action or (2) it may, by its conduct or practice, encourage or acknowledge the agent in a policymaking role."); Worsham v. City of Pasadena, 881 F.2d 1336, 1341 (5th Cir.1989) ("a plaintiff may be able to demonstrate that [a theoretical right of] review is ineffective and meaningless"). Thus, testimony regarding whether the Council delegated policymaking authority to Chief Krahn, and whether the Council actually exercised meaningful review of Chief Krahn's decisions, is relevant because it tends to prove whether Chief Krahn was the policymaker. See, e.g., Gros, 181 F.3d at 616 (remanding so district court could consider depositions as "evidence of the City's customs and usages in determining which City officials or bodies had final policymaking authority"); Paz v. Weir, 137 F.Supp.2d 782, 813-14 (S.D.Tex.2001) (finding based on deposition testimony that sheriff had delegated authority to jail employee, making that employee relevant policymaker); Hardy v. Town of Greenwich, 2009 WL 2176117, at *4-5 (D.Conn. July 22, 2009) (considering testimony of First Selectman in determining that he did not delegate final policymaking authority).
With regard to the second factor, the Court does not see any significant hindrance to or inhibition of the legislative process that could result from the requested depositions. The council members are not themselves parties to this case, and there is no suggestion that they could be subjected to any civil or criminal liability based on their legislative actions. Plaintiffs do not seek to inquire as to their motives or thought processes in the legislative process, but only "the methods and processes by which the council delegated, reviewed, enforced, and/or ratified the policies and practices of the Stafford police." Furthermore, the Court does not expect that such depositions would take a significant amount of the council members' time. Neither Defendants nor the third-party movants explain, and the Court cannot see, how this type of deposition could have a negative impact on the legislative process.
Accordingly, the balance of the competing interests in this case decidedly shows that the state legislators' interests must yield to important federal interests, and the depositions may go forward.
For the reasons discussed in this order, Defendants' Motion for Summary Judgment is
1) [T]he rules, regulations and policies of Defendant City of Arlington, as well as the training program in existence prior to and at the time of the shooting of Javier Fraire did not emphasize that the use of lethal force against a person or citizen should be exercised only as a last resort when all other methods of apprehension have failed...; and
2) [I]t was the custom and practice both before and after [the date of the shooting] for employees and officers of the City of Arlington to utilize deadly force in contravention of the standards and guidelines which comport with the Fourth and Fourteenth Amendments to the United States Constitution....
Id. at 1277. The first allegation complains of the failure to enact a policy of the sort that the Court today does not consider to support Plaintiffs' claim. The second allegation is entirely conclusory, essentially stating that it was the policy of the city to violate constitutional standards governing use of force. In the instant case, by contrast, Plaintiffs allege specific ways in which the alleged customs instructed officers to act, rather than merely concluding that they were instructed to violate the law.
