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Qualified immunity granted for Lieutenant accused of failure to supervise

Note: The 5th segregated Lt. Todd’s appeal from the rest of this case. Facts and analysis below pertain to Lt. Todd. To see how the 5th decided this matter against others involved, please click here.


(If you are new to 1983 actions, click here for help)

The controversy began with a phone call reporting suspected unlawful activity. Patricia Garcia called the police department, claiming that the residents in 7815 Harding Street were involved in selling heroin and possessed various firearms, including machine guns. Dennis Tuttle owned that home, and lived there with Rhogena Nicholas, his wife. Police officers investigated the home, observed no criminal activity, and forwarded their notes to Lieutenant Marsha Todd. Todd relayed the information concerning Harding Street to Officer Gerald Goines, an officer in narcotics division Squad 15.

According to Plaintiffs, Todd is the supervisor of “Narcotics Squad 24 . . . which handles civil asset forfeiture cases.” Even so, she sometimes assigns cases to other divisions. And in particular, Todd had assigned cases to Goines on several other occasions. After receiving the investigating officers’ notes, Goines took a series of actions to fraudulently obtain a search warrant for the residence at issue:

First, Goines executed an affidavit swearing that a confidential informant told him that the informant purchased heroin from the residence and observed firearms within the home. Based on the affidavit, Goines then applied for and received a no- knock search warrant from a municipal judge.

It turned out that the testimony contained in Goines’s affidavit was false. Goines later admitted that he had not paid any confidential informant to purchase drugs from the Harding Street home. He maintains that he purchased the heroin and witnessed the firearms himself, but Plaintiffs deny that allegation.

Goines and several other Squad 15 officers executed the warrant. The parties sharply contest what happened during the raid, but the end result is that Tuttle and Nicholas were shot and killed. Plaintiffs allege that the officers fired without provocation, but the officers maintain that they fired only after Tuttle shot at them first. Todd was not present at the raid and did not otherwise participate in it.

Plaintiffs seek to hold Todd liable for failing to supervise Goines. They allege that Goines regularly violated city policy relating to confidential informants and regularly lied in order to obtain no-knock search warrants, and that Todd knew about these infractions. They further argue that Todd acted in a supervisory capacity when “assigning” the Harding Street case to Goines. As such, Plaintiffs conclude, Todd is liable for the excessive force and unlawful search and seizure allegedly committed by the other officers.

Todd moved to dismiss, asserting the affirmative defense of qualified immunity. The district court denied the motion, and Todd timely appealed. We conclude that Plaintiffs have failed to plead facts that demonstrate a constitutional violation, let alone one that is clearly established. Accordingly, we REVERSE and RENDER.


To overcome qualified immunity at the motion-to-dismiss stage, Plaintiffs must plead facts showing: (1) that Todd violated their constitutional right; and (2) that the right at issue was clearly established at the time of the violation.

A. Constitutional violation

Taking the constitutional-violation prong first, we hold that Plaintiffs have not adequately pleaded a failure-to-supervise injury. A supervisory official may be held liable under section 1983 for the wrongful acts of a subordinate when the official breaches a duty imposed by state or local law, and this breach causes plaintiff’s constitutional injury. See Smith.

We have understood this inquiry to contain three elements: (1) that the supervisor failed to train or supervise the subordinate; (2) a causal link between the failure to train or supervise and the constitutional violation; and (3) that the failure to train or supervise amounts to deliberate indifference. See Roberts.

Plaintiffs’ claim fails for at least two reasons. First, the allegations do not establish that Todd had a duty to supervise Goines. Todd was not Goines’s supervisor; that was Lieutenant Robert Gonzales. And indeed, some claims asserted against Gonzales have been allowed to proceed to discovery. But we see no reason why the supervisor of one narcotics division should be responsible for the actions of an officer belonging to a different division.

Plaintiffs argue that Todd acted in a supervisory capacity when she gave the notes concerning the Harding Street raid to Goines, construing this as assigning him the case. As an initial matter, it is unclear whether the simple act of passing information is the same thing as formally assigning a case. But even supposing that Todd did assign the case to Goines, that act does not impose a supervisory duty, either for Goines or for the case in general. Nor is it consequential that Todd was superior to Goines in rank or that she attended the planning meeting for the Harding Street raid. Neither of those facts, if proven, would establish that Todd had a duty to supervise Goines.

Second, the allegations do not show that Todd acted with deliberate indifference. Plaintiffs claim that Todd was familiar with Goines’ pattern of illegal and unconstitutional conduct as described in this Complaint, but they allege no facts supporting that conclusion. They point to past no-knock warrants that Goines applied for, explaining that a gun was almost never recovered from the raid even though the presence of firearms was almost always the basis Goines gave for requesting such a warrant. Plaintiffs also cite a number of instances where the execution of these warrants resulted in civilian fatalities or injuries. But none of these facts tend to show that Todd was aware of Goines’s unlawful behavior.

Plaintiffs’ allegations as to Gonzales serve as a helpful comparison. Gonzales was Goines’s direct supervisor; he approved Goines’s allegedly unlawful payments to confidential informants and oversaw Goines’s day-to-day tasks. There is good reason, then, why Gonzales would be aware of Goines’s regular violation of city policy in connection with applying for and executing search warrants. The same allegations are simply not present for Todd. Plaintiffs’ claim must be dismissed because they do not plead a failure-to-supervise injury.

B. Clearly established

Even if Plaintiffs could show a constitutional violation, such a violation would not be clearly established. The Supreme Court has consistently instructed lower courts to not conduct the clearly established analysis at a high level of generality. See SCOTUS Mullenix v. Luna, 577 U.S. 7 (2015). For this reason, the binding law must clearly prohibit the officer’s conduct in the particular circumstances before him.

Plaintiffs offer no precedent that clearly establishes the notion that Todd was obligated to supervise Goines in these circumstances. They cite to general failure-to-supervise cases, Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir. 1994) and Wanger v. Bonner, 621 F.2d 675 (5th Cir. 1980), but neither of them bears on the case-specific issues of whether Todd assumed a supervisory role by assigning the case to Goines and whether knowledge of Goines’s previous unlawful actions imputes to her.

Given the state of current case law, we cannot say that Todd’s obligation, if any, was clear enough that every reasonable official would interpret it to establish the particular rule. Plaintiffs’ claim must be dismissed for this reason as well.