Facts
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In the early evening of July 14, 2021, Houston Police Officers Manuel Salazar and Nestor Garcia were on patrol when they received a dispatch call (sting operation) with vehicle information, including vehicle type and plate number. At this time, David Anthony Salinas was going home after stopping at a gas station and was on the phone with his friend, Jason De La Cruz. Upon locating the vehicle, a Nissan, the Officers turned on their lights. When Salinas did not pull over for 20 seconds, a high-speed chase ensued, ending when Salinas crashed into a cement pillar of a freeway underpass. The Nissan was disabled with significant front-end damage, a cracked windshield, and a deployed airbag.
The Officers parked their cruiser next to Salinas’ driver-side door, preventing Salinas from exiting the car, jumped from the cruiser, and surrounded Salinas’ car with their weapons drawn and pointed at Salinas. Salinas, at this point, appeared to be in the passenger seat. Officer Salazar stood by the driver-side door of Salinas’ vehicle while Officer Garcia stood near the passenger-side door.
Officer Salazar shouted commands for Salinas to show his hands, yelling: “Let me see your hands! Let me see your hands! Let me see your hands! Hey! Hands! Hands! Hands! Hands! Let me see your hands!” Officer Garcia also shouted at Salinas: “Hey let me see your hands! Hands! Hands! Hands! Hands! Hands! Hands! Let me see your f–king hands! Hands! Let me see your hands!” Officer Garcia knocked on the windshield several times as he was shouting the commands. Officer Salazar then radioed in for assistance.
During this interaction, as Salinas moved around from side to side and raised and lowered his hands intermittently, Officer Salazar shouted: “Hey! Stop reaching! Stop reaching! Stop reaching!”, and shouted to Officer Garcia: “Hey, watch the crossfire!” before again shouting at Salinas to “stop reaching.” At the same time, Officer Garcia yelled: “He’s reaching, he’s reaching!” Officer Garcia then shouted at Salinas: “Let me see your hands! Stop reaching motherf–ker! Stop—your hands! Hands! Hands! Against the door! Against the door! Stop your f–king hands!” Officer Salazar shouted at Salinas: “Hey! Let me see your hands! Hands! Hands! Hands! Hands! Hands! Keep them up! Keep them up!” When Salinas again began reaching, with his hands disappearing from the Officers’ view, Officer Salazar shouted: “Keep—he’s reaching! He’s reaching! Hey! He’s reaching!” De La Cruz, who was still on the phone with Salinas at the time, stated that he heard Salinas telling the Officers: “Don’t shoot, I am looking for my phone.”
As Salinas appeared to reach for something behind the driver’s seat of his vehicle, leaning over the center console, Officer Salazar took a few steps back before firing at Salinas. Officer Garcia similarly stepped back from the car and fired through the passenger-side of the windshield. The Officers fired 11-12 rounds at Salinas. At no point did the Officers see Salinas wield a gun. After firing, Officer Salazar radioed: “Shots fired. Shots fired,” and reported the incident. When backup arrived, medical aid was rendered.
In sum, both Officers shouted multiple warnings at Salinas to comply before firing their weapons. In total, Officer Salazar yelled “show me your hands” or “hands” to Salinas at least fourteen times and shouted “stop
reaching” to Salinas at least four times. Officer Garcia shouted “let me see your hands” or “hands” to Salinas at least fifteen times and yelled “stop reaching” or “he’s reaching” at least three times. It signifies that from the
moment the Officers jumped out of their cruiser to the first firing of shots, 38 seconds had elapsed.
Brittany Salinas brought an unlawful detention and excessive force claim against the officers. The District Court granted qualified immunity. The 5th affirmed.
Analysis
A. Unlawful detention
B. Salinas asserts that the Officers’ attempted stop and subsequent pursuit of Salinas were unlawful detentions that violated Salinas’ Fourth Amendment rights because the Officers lacked probable cause. Brittany asserts that the Officers lacked probable cause to detain Salinas because he was not in violation of any known law at the time. She alleges that Salinas was driving home from the gas station when the police pursuit occurred, that he was randomly selected for no apparent reason other than he was at the wrong place at the wrong time, that he was not a “fleeing” suspect, and that body worn camera (BWC) footage does not show that identifying information on Salinas was transmitted through radio dispatch. We find, however, that the Officers had—at the very least—reasonable suspicion to detain Salinas.
Contrary to Brittany’s assertions, BWC footage from Officer Salazar shows that the Officers had information
on a vehicle partially matching Salinas and that they had previously run his license plate in their system, that Salinas did not pull over after the Officers engaged their lights, and that the Officers reported to dispatch multiple times that Salinas was “refusing to stop” over the course of 20 seconds. And Brittany’s pleadings further undermine her argument that Salinas was not “fleeing,” as Brittany admits that there was a police “pursuit” and a police “chase” of Salinas’ car.
Taken together, these factors—the Officers’ knowledge of identifying information on Salinas’ vehicle, coupled with the context of a sting operation and Salinas’ refusal to stop—provide sufficient “particular and articulable
facts” to warrant reasonable suspicion.
B. Excessive Force
Brittany also raises an excessive force claim, arguing that the Officers used “unwarranted deadly force” when they shot and killed Salinas following the pursuit and crash of his vehicle.
Viewing the facts in the light most favorable to Brittany, we find that she has not alleged a plausible claim of excessive force. As we explained, Salinas was “attempting to evade arrest by flight.” And, Brittany’s pleadings and the Officers’ BWC footage provide sufficient support for a reasonable officer’s belief that Salinas posed an immediate threat of harm when the Officers fired their weapons.
First, it is undisputed that the Officers did not deploy deadly force immediately, but only after Salinas continually disregarded their commands and began continuously reaching within his vehicle. The Officer’s BWC footage shows that the Officers—in total—commanded Salinas to show his hands at least 30 times and to stop reaching at least seven times. Though Brittany asserts—using De La Cruz’s Affidavit—that Salinas was injured and disoriented after crashing his car and likely did not hear the Officers’ commands, these details, at best, are speculation upon Salinas’ state of mind.
Second, the Officers did not shoot at Salinas until after he began reaching within his vehicle. Brittany argues that the Officers did not see Salinas with a gun, and that he reached within his vehicle to find his cell phone. Perhaps, but “officers use lethal force justifiably if they reasonably believe the individual is reaching for a gun . . . even in cases when officers had not yet seen a gun when they fired, or when no gun was ever found at the
scene.” See Cloud. The Officers did not violate Salinas’ Fourth Amendment right to be free from excessive force.
https://www.ca5.uscourts.gov/opinions/pub/23/23-20617-CV0.pdf