Officers who go to wrong house and kill homeowner denied qualified immunity


Around 1:00 a.m. on May 28, 2013, the Fort Worth Police Department dispatched officers Richard A. Hoeppner and Benjamin Hanlon in response to a potential burglary. Hoeppner and Hanlon were both rookies in their initial probationary year with the department. The call came across as an active residential burglary alarm. As they neared the call location, they turned off their vehicle’s lights and parked in front of a neighboring home.

Not realizing that even-numbered houses on are one side of the street and odd-numbered houses are on the other side, they went to the wrong house and walked around Jerry Waller’s home. They scanned the perimeter of the home with their flashlights, and the Wallers’ small dogs began barking inside the home. This awoke Jerry Waller. While Hanlon went around to the front of the house, Hoeppner stayed in the driveway and saw Waller enter the garage. Waller was carrying a gun.

Hoeppner approached Waller with his gun aimed at him and shined his flashlight in Waller’s eyes. Hoeppner repeatedly yelled “drop the gun.” Hanlon heard the yelling, ran back to the driveway, and identified the officers as “Fort Worth Police!” or “Fort Worth PD!” Waller placed the gun on the trunk of the vehicle parked in the garage. What happened next is in dispute.

Waller was shot six times by Hoeppner. According to Plaintiffs and contrary to Hoeppner’s account, Waller remained unarmed when he was shot. Plaintiffs emphasize that the officers have materially conflicting accounts of what happened. Hoeppner claims that he opened fire from a distance of seven yards, while Hanlon claims that Waller was shot at a distance of two or three feet. Hanlon claims that Waller had the gun in his left hand throughout the shooting until he fell on the gun, while Hoeppner claims Waller had the gun in both hands and never dropped it.

The medical examiner noted seven gunshot wounds from the six shots fired. Hoeppner shot Waller in the torso and through the outside of the left thumb and through the first and second fingers. Plaintiffs contend that the shot to the left hand, together with the direction of the shots to the torso, are consistent with Waller being shot while standing upright with his hands shading his eyes with the left hand in front of the right.

The small handgun had no damage suggesting it was not held in the left hand or in both hands. They contend that the gunshot wounds to the fingers, a blood spatter pattern on the left side of Waller’s face, and an unsmeared blood spatter on his right hand, all of which are shown in crime scene and autopsy photographs, demonstrate that Waller was unarmed when he was shot.

Plaintiffs brought a wrongful death action under 42 U.S.C. § 1983. The City of Fort Worth and Hoeppner moved for summary judgment. The district court denied Hoeppner’s motion and granted the City’s. The 5th affirmed.


A. Hoeppner

Neither party makes an argument regarding whether a right at issue was “clearly established” at the time of the conduct; the only question is whether Hoeppner violated Waller’s constitutional rights under the Fourth Amendment’s reasonableness standard.

In this case, the district court determined that the pretrial record set forth a “genuine” issue of fact for trial: whether Waller was unarmed when he was shot. We do have jurisdiction to determine materiality, but the disputed facts here are indeed “material” to the ultimate legal question. Whether Waller was armed when he was shot goes to the heart of whether his constitutional rights were violated. We therefore affirm the district court’s order denying summary judgment.

B. City

The “two fundamental requirements for holding a city liable under §1983 for inadequate hiring and training policies” are causation and culpability. The municipal policy must have been the “moving force” behind the constitutional violation and the municipality must have adopted the policy with “deliberate indifference” to its “known or obvious consequences.” We have consistently “demanded a high standard of proof before imposing Monell liability on a municipality.” See Snyder.

Plaintiffs allege four theories of liability under Monell: (1)illegal entry onto the curtilage; (2) failure to identify as an officer; (3) failure to verify address; and (4) failure of supervision of rookie officers on the night shift. Because Plaintiffs’ theories fail on causation, we need not address deliberate indifference.

The City is correct that “any of the officers’ actions leading up to the shooting are not relevant for the purposes of an excessive force inquiry in this Circuit.” See Harris. This means that a city policy or custom had to directly influence the use of excessive force during the crucial forty-four seconds of the shooting. Plaintiffs allege policies or customs that relate to the series of events that precede that time frame.

We agree with the district court that, these policies may be ‘but for’ causes, but they are not the moving force behind Hoeppner’s use of force.”

As for the failure to identify theory, the City and district court emphasize that there is “undisputed evidence that Hanlon did verbally identify as police.” The policy is also likely premised on achieving cooperation and, according to Plaintiffs, Waller did put his gun down. The policy, therefore, achieved its goal and even if Hoeppner had also verbally identified himself, the outcome would not have changed. All of Plaintiffs’ theories fail on the causation prong. The district court’s order granting summary judgment to the City is affirmed.