Full Opinion (html_with_citations)

Case: 24-10017       Document: 82-1       Page: 1    Date Filed: 09/27/2024




        United States Court of Appeals
             for the Fifth Circuit
                                                                     United States Court of Appeals
                                                                              Fifth Circuit


                              ____________                                  FILED
                                                                    September 27, 2024
                                No. 24-10017                           Lyle W. Cayce
                              ____________                                  Clerk

Latrisha Winder, Individually, as next friend of J.W., a minor and as
personal representative of the Estate of Stephen Wayne Winder,
Deceased; Lily Winder; Stephen Tyler Winder; Kolene
Winder, as next friend of E.W., a minor,

                                                       Plaintiffs—Appellants,

                                    versus

Joshua M. Gallardo; Robert Travis Babcock; Young
County, Texas,

                                        Defendants—Appellees.
               ______________________________

               Appeal from the United States District Court
                   for the Northern District of Texas
                         USDC No. 7:23-CV-59
               ______________________________

Before Jones, Willett, and Engelhardt, Circuit Judges.
Per Curiam:
       Upset that he saw Facebook messages between his wife and her ex-
husband, Steve Winder became suicidal. Later that night, his wife Latrisha
(who was out of state for National Guard training) called her mother and told
her that Steve had sent her pictures in which he was holding a gun to his head.
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       Latrisha called the Young County Sheriff’s department for a welfare
check. Deputy Joshua Gallardo arrived and, after hearing Steve shout from
within, opened the front door. Steve’s mother-in-law indicated he was armed
and walking to the nearby bedroom door. Deputy Gallardo yelled at Steve to
put the gun down before fatally shooting him. Appellants sued for (1) war-
rantless entry, (2) excessive force, (3) supervisory liability, (4) Monell liabil-
ity, and (5) ADA violations. The District Court dismissed the case at the
12(b)(6) stage. It did so correctly.
       First, Steve’s suicidality, combined with his possession of the means
to follow through (the gun), created exigent circumstances excusing the need
for a warrant. Second, an objectively reasonable officer in Deputy Gallardo’s
shoes wouldn’t need for Steve to point the gun at him before using deadly
force under the facts as pled and from what can be seen in Deputy Gallardo’s
body cam footage, defeating the excessive force claim. Third, there is no un-
derlying constitutional violation to support a claim for supervisory or Monell
liability. Fourth, Title II of the ADA (which Appellants sued under) doesn’t
support claims where police officers faced exigent circumstances, such as
those created by which Steve’s suicidality. We AFFIRM.
                              I. Background
A.     Factual
       Steve was enjoying an afternoon of swimming and drinks with family
and friends when he accidentally got in his pool with his cell phone. So he
went inside his house and charged his wife Latrisha’s old cell phone. She was
in Fort Lee, Virginia training for the National Guard at the time. On her
phone, he found private Facebook messages between Latrisha and her ex-
husband. Latrisha’s ex-husband wanted to get back together, but she
declined.




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       Presumably upset, Steve walked next door to show the messages to his
mother-in-law, Lou Anne Phillips, around 4:00 p.m. Lou Anne sympathized
with Steve, agreeing that Latrisha should have told him about the messages
while emphasizing that Latrisha declined her ex-husband’s advances. Steve
went home, but later that evening Lou Anne began receiving texts from
Latrisha expressing concern that she couldn’t reach Steve and was worried
about him because of his history of excessive drinking and mental illness,
namely depression. Lou Anne went over to check on Steve, let him use her
phone to call Latrisha, and took Steve’s daughter J.W. back to her house at
Steve’s request.
       Around 7:00 p.m. Latrisha called Lou Anne again, telling her that
Steve sent pictures of himself holding a handgun under his chin and to his
head, stating that he “could not bear it anymore.” Lou Anne went to check
on Steve again. Around the same time, Latrisha called the Young County
Sheriff’s Department to request a welfare check for Steve, informing officers
that Steve had sent pictures holding a gun to his head.
       Deputies Gallardo and Dwyer were dispatched to the Winders’ home,
driving in separate vehicles. Deputy Gallardo got there first, where Steve’s
niece escorted him to the Winders’ front door. Lou Anne heard that someone
was at the door and tried to retrieve the gun from Steve, but Steve got upset,
yelling “I don’t give a [expletive]. This is my home” and took the gun. Steve
was heavily intoxicated at the time, with a BAC of .173.
       After hearing Steve shout, Deputy Gallardo opened the door, said
“Hello, Sheriff’s Office,” and remained on the porch. 1 He received no


       _____________________
       1
         Appellants dispute this and claim that Deputy Gallardo entered the home, but
body camera footage demonstrates that he remained outside the home until after the
shooting occurred. But, as explained below, whether Deputy Gallardo entered the home or




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immediate response, so he called out “Steve” in a louder voice. Steve
responded “What?” from the bedroom, and Lou Anne emerged saying
“We’re right here. Can I help you?” But Lou Anne then saw Steve holding
his gun and approaching the bedroom door. She told Steve to “put it up,”
and informed Deputy Gallardo that “he’s got a gun.” Deputy Gallardo drew
his service weapon, radioed “he’s got a gun, he’s got a gun,” and told Steve
“put it down man, put it down.” Deputy Gallardo then shot Steve once in
the chest. Body cam footage indicates that the above took place over
approximately 28 seconds.
        Deputy Dwyer arrived about forty seconds after. The Deputies
entered the bedroom and saw Steve on the floor and his handgun on the bed,
which Deputy Gallardo secured and removed to one of their vehicles. The
Deputies rendered aid until emergency medical services arrived a few
minutes later, but Steve ultimately died.
B.      Procedural
        Appellants asserted claims for warrantless entry, excessive force,
supervisory liability, Monell liability, and Americans with Disabilities Act
(“ADA”) violations against Deputy Gallardo, Sheriff Robert Travis
Babcock, and Young County, Texas. Defendants filed a Motion to Dismiss,
which the District Court granted. Appellants timely appealed.
                           II. Standard of Review
        A district court’s Fed. R. Civ. Pro. 12(b)(6) dismissal on the
pleadings receives de novo review. Morgan v. Swanson,
659 F.3d 359, 370
 (5th
Cir. 2011) (en banc). In conducting that review, we accept “all well-pleaded

        _____________________
not is non-dispositive because Steve’s suicidality and possession of the means to follow
through (the gun) created exigent circumstances justifying warrantless entry. Infra III(B).




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facts as true and draw[s] all reasonable inferences in favor of the nonmoving
party.”
Id.
 We do not, however, “presume true a number of categories of
statements, including legal conclusions; mere labels; threadbare recitals of
the elements of a cause of action; conclusory statements; and naked
assertions devoid of further factual enhancement.”
Id.
 (cleaned up) (quoting
Ashcroft v. Iqbal.,
556 U.S. 662, 678
 (2009)). But while “the court accepts ‘all
well-pleaded facts as true and draw[s] all reasonable inferences in favor of the
nonmoving party,’” “the video depictions of events, viewed in the light most
favorable to the plaintiff, should be adopted over the factual allegations in the
complaint if the video ‘blatantly contradict[s]’ those allegations.” Harmon v.
City of Arlington, Tex.,
16 F.4th 1159
, 1162–63 (5th Cir. 2021) (quoting Scott
v. Harris,
550 U.S. 372, 380
 (2007)) (cleaned up).
       The parties disputed in a motion to strike whether the body cam video
was sufficiently referenced to the point of being incorporated in the
complaint; regardless, the District Court noted that it relied solely on the
complaint in dismissing the case and denied that motion as moot. Appellants
nevertheless referenced the video in their complaint and brief, included
several screenshots from the video in their complaint, and caselaw supports
our consideration of the video. See, e.g., Harmon, 16 F.4th at 1162–63 (relying
on appended video evidence to affirm district court’s dismissal of all claims
based on qualified immunity); Hodge v. Engleman,
90 F.4th 840
, 843 (5th Cir.
2024); see also, e.g., Salinas v. Loud, No. 22-11248,
2024 WL 140443
, at *1
(5th Cir. Jan. 12, 2024) (unpublished).
       Qualified immunity protects government officials “from liability for
civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald,
457 U.S. 800, 818
 (1982). To determine
whether a government official is entitled to qualified immunity, we must
decide (1) whether a plaintiff has alleged facts sufficient to establish a



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constitutional violation, and (2) whether the right at issue was clearly
established at the time of the defendant’s alleged misconduct. Pearson v.
Callahan,
555 U.S. 223
, 231–32 (2009). And we have discretion to determine
the order in which we consider those questions.
Id. at 236
.
                           III.    Discussion
A.     We decline Appellants’ invitation to upend qualified immunity.
       Before delving into their case’s substance, Appellants first request
that we upend qualified immunity outright. This request is, as Appellants
concede, outside our abilities. (“While this Court cannot abrogate Supreme-
Court authority on QI, Plaintiffs raise it now for potential argument in the
Supreme Court.”). “As a panel of this court, however, we are bound by the
precedential decisions of both our court and the Supreme Court.” Garcia v.
Blevins,
957 F.3d 596
, 602 (citing Vaughan v. Anderson Reg. Med. Ctr.,
849 F.3d 588, 591
 (5th Cir. 2017)) (rejecting argument to reconsider Fifth
Circuit’s approach to qualified immunity). We decline Appellants’
invitation.
B.     Appellants’ warrantless entry claim.
       Appellants argue that Deputy Gallardo’s warrantless entry was an
unjustified violation of Steve’s constitutional rights. Appellees assert
qualified immunity, responding that Deputy Gallardo never entered the
home until after the shooting, and even if he did, Steve’s suicidality created
an exigent circumstance justifying warrantless entry. Even taking
Appellants’ version of the facts as true in the face of body camera footage
demonstrating otherwise, Appellants do not allege facts overcoming an
exigent circumstance under this Circuit’s decision in Rice v. Reliastar Life
Ins., which held that suicidality “may create an exigency . . . so compelling




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that a warrantless entry is objectively reasonable under the Fourth
Amendment.”
770 F.3d 1122, 1131
 (5th Cir. 2014).
       “[S]earches and seizures inside a home without a warrant are
presumptively unreasonable.” Brigham City v. Stuart,
547 U.S. 398
 (2006)
(cleaned up). But the exigent circumstances exception exists, applying when
‘“the exigencies of the situation’ make the needs of law enforcement so
compelling that [a] warrantless search is objectively reasonable under the
Fourth Amendment.”
Id.
 (citation omitted). “The Government bears the
burden of demonstrating exigent circumstances.” United States v. Troop,
514 F.3d 405, 409
 (5th Cir. 2008).
       Suicidality presents a tragically common example of exigent
circumstances. See, e.g., Rice,
770 F.3d at 1131
 (granting qualified immunity)
(“This is not the first time we have encountered a tragic factual scenario like
the one present here: a police officer, in an attempt to aid a potentially
suicidal individual, entered without a warrant and killed the person the officer
was trying to help.”) (collecting cases). Rice squarely confronted the issue of
“whether the exigent circumstances exception to the warrant requirement
may allow for a warrantless entry based on the threat an individual poses to
himself.”
Id.
 And Rice “h[e]ld that the threat an individual poses to himself
may create an exigency that makes the needs of law enforcement so
compelling that a warrantless entry is objectively reasonable under the
Fourth Amendment.”
Id.
 “The need to protect or preserve life or avoid
serious injury is justification for what would be otherwise illegal absent an
exigency or emergency.”
Id.
 (quoting Brigham City,
547 U.S. at 403
). “This
need to protect or preserve life is not limited to instances where violence is
directed to another person; the need to protect and preserve life can be just
as strong when the violence is directed at one’s self.”
Id.
 (emphasis added)
(citing Fitzgerald v. Santoro,
707 F.3d 725, 731
 (7th Cir. 2013)); see also, e.g.,




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Clark, 850 F. App’x at 211 (“The exigency of a credible risk that a person is
about to end their life justifies[] warrantless entr[y.]”).
         Body camera footage shows that Deputy Gallardo did not enter until
after the shooting. But, even if he did, the 911 call made clear that Steve was
suicidal and potentially in possession of a gun, just like the decedent in Rice.
Rice,
770 F.3d at 1132
. Thus, Deputy Gallardo’s warrantless entry was
objectively reasonable because it was prompted by credible information that
Steve both “was a suicide risk and had the means to act on it.” Clark v.
Thompson,
850 F. App’x 203
, 211 (5th Cir. 2021) (emphasis added); Rice,
770 F.3d at 1132
. Deputy Gallardo’s entry was clearly in line with Rice, exigent
circumstances existed, and no constitutional violation occurred.
C.       Appellants’ excessive force claim.
         Appellants assert that Deputy Gallardo used excessive force when he
shot Steve, and Appellees counter that Deputy Gallardo’s use of force is
protected under qualified immunity. Excessive force claims must establish
“(1) injury, (2) which resulted directly and only from a use of force that was
clearly excessive, and (3) the excessiveness of which was clearly
unreasonable.” Deville v. Marcantel,
567 F.3d 156, 167
 (5th Cir. 2009)
(cleaned up). An injury occurred—Deputy Gallardo shot and killed Steve—
so the analysis hinges on prongs (2) and (3). Deputy Gallardo’s use of force,
viewed “from the perspective of a reasonable officer on the scene,” Graham
v. Connor,
490 U.S. 386, 388
 (1989), was neither excessive nor unreasonable
because “[a] police officer does not have to permit a suspect to aim his
weapon before answering the threat.” Jones v. Shivers,
697 F. App’x 334, 334
(citing Salazar-Limon v. City of Houston, 826 F.3d at 272, 279 n.6 (5th Cir.
2016).
         “Reasonableness” is an objective inquiry: one asks “whether the
officers’ actions are ‘objectively reasonable’ in light of the facts and




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circumstances confronting them, without regard to their underlying intent or
motivation.” Graham,
490 U.S. at 397
 (citations omitted). “The
‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.”
Id. at 396
. And one must account for “the fact that
police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation.”
Id.
 at 396–97. To
access reasonableness, we consider three factors that the Supreme Court
outlined in Graham v. Connor: (1) “the severity of the crime at issue,” (2)
“whether the suspect poses an immediate threat to the safety of the officers
or others,” (3) “and whether he is actively resisting arrest or attempting to
evade arrest by flight.” Deville,
567 F.3d at 167
 (citing Graham v. Connor,
490 U.S. at 396
).
       When it comes to deadly force, “[a]n officer’s use of deadly force is
not excessive, and thus no constitutional violation occurs, when the officer
reasonably believes that the suspect poses a threat of serious harm to the
officer or to others.” Manis v. Lawson,
585 F.3d 839, 843
 (5th Cir. 2009). And
“if the officer believes the suspect has a gun, the calculation changes—even
if there was never, in fact, a gun.” Allen v. Hays,
65 F.4th 736
, 744 (5th Cir.
2023) (emphasis added). Uses of force may be reasonable when the officer
could reasonably believe the suspect was reaching for or had a gun. See, e.g.,
Ontiveros v. City of Rosenberg,
564 F.3d 379, 385
 (5th Cir. 2009) (officer did
not use excessive force even when subsequent search of bedroom revealed no
weapons)(“[T]his court has upheld the use of deadly force where a suspect
moved out of the officer’s line of sight and could have reasonably been
interpreted as reaching for a weapon.”); Reese v. Anderson,
926 F.2d 494, 501
(5th Cir. 1991) (police did not use excessive force when a decedent repeatedly
refused to keep hands raised and appeared to be reaching for an object,




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despite the “fact that [the decedent] was actually unarmed.”) (emphasis
added).
       Much confusion exists around whether Steve was, in fact, holding a
gun the moment he was shot. The body cam footage is inconclusive: Deputy
Gallardo was standing outside the front door peering into the home after
being informed by Lou Anne that Steve “ha[d] a gun,” so the doorframe
obscures where Steve was standing and footage neither confirms nor denies
that Steve was holding a gun. At the same time, the complaint alleges that
Steve “had gotten up from his chair with his gun” and walked “to the
bedroom doorway” while yelling. Lou Anne herself even believed Steve had
a gun, telling him to “put it up” and informing Deputy Gallardo “he’s got a
gun.” And Deputy Gallardo radioed this information, then told Steve “put it
down man, put it down” directly before firing, indicating that he saw (or at
least believed that he saw) Steve holding a gun before firing. But whether
Steve was in fact aiming a gun at Deputy Gallardo does not matter—binding
caselaw demonstrates that what matters is whether Deputy Gallardo could
reasonably believe that Steve was reaching for or had a gun. See, e.g., City of
Rosenberg,
564 F.3d at 385
.
       Taking the facts alleged as true, a reasonable officer in Deputy
Gallardo’s position would have reasonably believed that Steve had or was
reaching for a gun—meaning Steve “pose[d] a threat of serious harm to
[him] or to others.” Manis,
585 F.3d at 843
. The body cam footage and
complaint as pled show as much, including (1) the 911 call informing Deputy
Gallardo that Steve had a gun and was in an unstable (indeed suicidal) mental
state, (2) Steve’s walking toward the door while yelling, (3) Lou Anne telling
Steve to “put [the gun] up,” (4) Lou Anne informing Deputy Gallardo that
“he’s got a gun,” and (5) Deputy Gallardo commanding Steve twice to “put
[the gun] down.” Nor would a reasonable officer in Deputy Gallardo’s
position “have to permit [Steve] to aim his weapon before answering the



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threat.” Jones,
697 F. App’x at 334
; see also Salazar-Limon, 826 F.3d at 279
n.6 (“[W]e have never required officers to wait until a defendant turns
towards them, with weapon in hand, before applying deadly force to ensure
their safety.”) (collecting cases). Deputy Gallardo’s use of deadly force was
neither excessive nor unreasonable under our binding caselaw, meaning no
constitutional violation occurred.
D.     Appellants’ supervisory liability claim.
       Appellants also allege a failure-to-supervise claim against Sheriff
Babcock, relying on the single incident exception to do so. Appellants needed
to show “(1) the [sheriff] failed to supervise or train the officer; (2) a causal
connection existed between the failure to supervise or train and the violation
of the plaintiff’s rights; and (3) the failure to supervise or train amounted to
deliberate indifference to the plaintiff’s constitutional rights.” Roberts v. City
of Shreveport,
397 F.3d 287, 292
 (5th Cir. 2005). Even assuming arguendo that
there was a failure to supervise, Appellants cannot succeed at the second step
because no violation of rights occurred. Supra III(B)–(C).
E.     Appellants’ Monell claim.

       Appellants also levy a Monell claim against Young County.
“[M]unicipal liability under section 1983 requires proof of three elements: a
policymaker; an official policy; and a violation of constitutional rights whose
‘moving force’ is the policy or custom.” Piotrowski v. City of Hous.,
237 F.3d 567, 578
 (5th Cir. 2001) (citing Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694
 (1978)). “‘[I]t is well established that there must be an underlying
constitutional violation for there to be a claim under Monell.’” Landry v.
Laborde-Lahoz, 852 Fed. App’x 123, 127 (5th Cir. 2021) (quoting Taite v. City
of Fort Worth Texas,
681 F. App’x 307, 309
 (5th Cir. 2017)). But no
constitutional violation took place here. Supra III(B)–(C). So, the Monell
claim lacks an underlying constitutional claim and therefore fails.




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F.     Appellants’ ADA claims.
       Finally, Appellants argue that Young County violated the ADA. An
ADA plaintiff must show: “(1) that he has a qualifying disability; (2) that he
is being denied the benefits of services, programs, or activities for which the
public entity is responsible, or is otherwise discriminated against by the
public entity; and (3) that such discrimination is by reason of his disability.”
Hale v. King,
642 F.3d 492, 499
 (5th Cir. 2011). Key here is Hainze v.
Richards, which foreclosed ADA claims where police officers face exigent
circumstances. See
207 F.3d 795
, 801 (5th Cir. 2000) (qualified immunity
case where an officer shot a suicidal, mentally ill man threatening and
advancing toward him with a knife) (Title II of the ADA “does not apply to
an officer’s on-the-street responses to reported disturbances, whether or not
those calls involve subjects with mental disabilities”); see also Windham v.
Harris Cnty., Tex.,
875 F.3d 229, 235
 (5th Cir. 2017) (ADA allows
“individuals to sue local governments for disability discrimination
committed by police in non-exigent circumstances.” (emphasis added)).
       As discussed above, there were indeed exigent circumstances—Steve
“was a suicide risk and had the means to act on it.” Clark, 850 F. App’x at
211 (emphasis added); see supra III(B). These exigent circumstances
(circumstances resembling those in Hainze itself) foreclose ADA relief. See
207 F.3d at 801. Moreover, Appellants cannot show that Steve was
discriminated against “by reason of his disability” (here, depression).
Appellants point to no facts showing that Deputy Gallardo shot Steve because
Steve was depressed. Instead, they assert that Young County lacked policies
to “protect [Steve’s] welfare” or “respond[] to threatened suicide calls with
well-established crisis intervention techniques, including responding with a
mental-health professional.” But this doesn’t demonstrate that Deputy
Gallardo shot Steve “by reason of” his depression. Deputy Gallardo shot
Steve “by reason of” circumstances that would lead an objectively




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reasonable officer to reasonably believe that Steve was reaching for or had a
gun. Supra III(C).
                           IV.    Conclusion
      We AFFIRM the District Court in full for the reasons stated.




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