Facts
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On July 25, 2021, Angel Sanchez held Neida Tijerina, his former girlfriend, hostage in her apartment with three of her four minor children. Sanchez was armed with a shotgun and had a military style ballistic vest. One of Neida’s children later told detectives that Sanchez was saying that he was going to kill Neida and then himself; the children also heard Sanchez hitting Neida. The next day, Neida was eventually able to contact her cousin, who called 911 and reported the situation. Officer Aguirre stated in an affidavit that on July 26, 2021, he received a call over his police radio for a suicide in progress, with officers being dispatched to Neida’s home. Aguirre responded to the call with other officers and was informed that there was a male suspect threatening suicide, armed with a gun and wearing a bulletproof vest, who was holding a woman and a few children hostage inside the apartment.
A San Antonio Police Department (“SAPD”) helicopter was requested to fly over the area to narrow down which building Sanchez was in at the apartment complex. Aguirre stated that he was familiar with the apartment complex and the layout of the inside of the apartments because he had responded to other calls there in the past. Once outside the apartment, Aguirre, along with other officers, moved to a small shed near Neida’s apartment where they could see her second story unit. Aguirre observed Sanchez come out of the apartment and point what he believed was a gun in the direction of the officers; the SAPD helicopter later confirmed that Sanchez had a gun in his hand. Aguirre eventually moved to the roof of a nearby recreation center in order to get a better view of the apartment and to gain better cover if fired upon by Sanchez. Officers Jose Claire and Nicholas Rodgers also took positions on the roof and were armed with rifles.
Lying in a prone position on the roof with his rifle in a stable position, Aguirre observed a woman, later identified as Neida, come out of the apartment on the second floor and down the stairwell that went straight from the small landing area outside the apartment to the ground floor. Sanchez came out of the apartment holding a baby in front of him while Neida went down to talk to officers, before both returned inside. Later, multiple statements came in over the radio confirming that everyone inside the apartment was “all in one room together” with the windows facing the back parking lot. Aguirre stated that based on his knowledge of the apartments, this meant the people inside the apartment were far away from his line of fire, aimed at the front door, if he needed to shoot. Another radio message stated that Sanchez was coming out of the apartment and wanted to die. Almost simultaneously with the end of that message, Sanchez opened the door while holding what looked like a sawed-off shotgun or rifle.
Aguirre saw Sanchez turn and point the gun at the officers who were by the shed, and fired nine shots from his rifle, aimed at Sanchez’s center mass. Two of the officers who were on the ground by the shed, Officer James Ybarra and Officer Brian Head, stated that they saw Sanchez point the gun toward them and feared for their lives. Officer Claire fired one shot, and Officer Rodgers fired two shots. Officer Claire stated in an affidavit that he did not see anyone else behind, next to, near, or around Sanchez when he fired. Officer Rodgers also stated that could not see anyone to either side of or behind Sanchez.
Sanchez was struck six times and fell to the ground just inside the apartment door. Upon entering the apartment and taking Sanchez into custody, officers found Neida lying face down on the floor just inside the front doorway, appearing to suffer from a gunshot wound. She was pronounced dead at the scene. Sanchez was convicted of Aggravated Assault Against a Public Servant and Aggravated Kidnapping and was sentenced to 30 years in prison on each charge.
Maria Tijerina, Neida’s mother, filed suit on July 24, 2023, individually and on behalf of Neida’s estate and as next friend of her minor children. The complaint alleges (1) an excessive force claim under 42 U.S.C. § 1983 against Aguirre and (2) a bystander injury claim on behalf of the children. The district court granted the Officers’ motion for summary judgment, finding that they were entitled to qualified immunity. The 5th affirmed.
Analysis
A. Excessive Force
Tijerina’s excessive force claim goes directly to the unanswered question within this circuit of whether a seizure occurs when law enforcement intentionally targets a suspect but unintentionally strikes an innocent hostage. See Est. of Parker.
We assume without deciding that Neida was seized for Fourth Amendment purposes. However, Tijerina’s claim for excessive force still fails. The record indicates that Aguirre waited to discharge his weapon until he believed Neida was far from the line of fire, and only after Sanchez pointed a gun at other officers such that he posed an imminent and deadly threat. In determining whether an officer used “excessive force,” the plaintiff must show (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. The excessive force must be unreasonable considering the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. The reasonableness inquiry turns on the threat that Sanchez posed to officers and others on the scene.
Under that framework, all three Graham factors for the reasonableness inquiry tip in favor of Aguirre, greatly. Again, Tijerina concedes that the other two officers who fired one and two shots used reasonable force in the circumstances. Although Tijerina essentially asks our court to focus solely on the number of shots fired by Aguirre, or the quick-succession method in which he fired, comparing his actions to those of the other officers on the scene, our court instead must examine the totality of the circumstances for excessive-force claims.
Sanchez held the family hostage for multiple hours prior to and after officers arrived on the scene. Officers were briefed with the knowledge that Sanchez had active warrants for a charge of aggravated assault with a deadly weapon. Aguirre responded to the call as a “suicide in progress,” and right before Sanchez came outside the police radio broadcasted that he was going to come out fighting and that he was ready to die. Sanchez came outside with a gun and pointed it in the direction of the officers, who later stated that they feared for their life. Aguirre knew that Sanchez was wearing a bulletproof vest. Sanchez was threatening to kill himself and was holding four people hostage. On the predominating factor, then, Sanchez posed an immediate threat to officers who feared for their lives when he pointed the gun at them while wearing a bulletproof vest, and Sanchez was actively resisting for the extended hostage standoff.
It is tragic that Neida was somehow in the line of fire and lost her life. She was, of course, one of the very people that the officers intended to save when they responded to her cousin’s 911 call that day. But, when judging the reasonableness of the force used, our court considers only the facts that were knowable to Aguirre at the time. The fact that Neida exited the apartment once before does not mean Aguirre should have known Neida would be anywhere near Sanchez, or that the quick-succession nine shots Aguirre fired in two seconds until he saw Sanchez fall was unreasonable, especially after the police radio confirmed multiple times that everyone had entered a room away from the doorway.
Neida’s excessive-force claims therefore fail; we conclude that Officer Aguirre acted reasonably under the totality of the circumstances.
B. Bystander excessive force claim
A bystander claim for excessive force can only succeed when the officer directs the force toward the bystander—that is to say, when the bystander is not really a bystander.
The record shows that Aguirre fired all shots directly at Sanchez, after explicit notice that the children had moved into a different room. The Officers also point our court to one of the minor children’s deposition testimony about where the children were located during the time of the shooting. J.P. testified that she was sitting on the floor in her mother’s bedroom with her brothers when the gunshots occurred and drew a diagram confirming she was in the same room that Aguirre believed she was in. J.P.’s testimony confirms what the officers were told shortly before Sanchez emerged from the home, which was that the children were “outside the purview” of the gunfire. Furthermore, at best, Tijerina places the hostages as moving about the apartment throughout the standoff. Even though the children may have been “moving about” the building at the time of the shooting, Aguirre fired his weapon after receiving information that the children were, at the very least, out of harm’s way, precluding a finding of bystander claim for excessive force. The facts in this record, where Aguirre directed his fire to Sanchez’s center mass, do not meet the lofty standard for a bystander excessive force claim.
C. Conclusion
The distressing circumstances of Neida Tijerina’s death, resulting from an hours-long standoff, are devastating. It is a natural, understandable instinct to look back and wonder what could have happened if Aguirre had waited to see if Neida had moved from the bedroom into the doorway behind Sanchez, or if Aguirre had fired two shots instead of nine. The question before us today, however, is whether Aguirre used excessive force when he fired at Sanchez. When answering that question, we cannot discount the danger that Sanchez posed to the people in the apartment and to the officers on the scene. Sanchez engaged law enforcement officers in a long hostage standoff and came outside in a bulletproof vest, pointing his gun at officers on the scene. The evidence further shows that, at the time of the shooting, Aguirre understood that the hostages had moved into a different room and heard that Sanchez was coming outside wanting to die. It is not unreasonable or excessive for an officer to respond as Aguirre did here in response to such a severe and immediate threat. We therefore hold that there is no basis for an excessive force claim on these facts under the Fourth Amendment against Aguirre, nor for bystander liability.
https://www.ca5.uscourts.gov/opinions/unpub/25/25-50719.0.pdf