Facts
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Steve Winder 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.
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 Joshua 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. He received no 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.
Plaintiffs asserted claims for warrantless entry, excessive force, supervisory liability, Monell liability. The District Court dismissed the case. The 5th affirmed.
Analysis
A. Warrantless entry claim
Plaintiffs argue that Deputy Gallardo’s warrantless entry was an unjustified violation of Steve’s constitutional rights. The officer asserts 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 the plaintiff’s version of the facts as true in the face of body camera footage demonstrating otherwise, they do not allege facts overcoming an exigent circumstance under this Circuit’s decision in Rice, which held that suicidality “may create an exigency . . . so compelling that a warrantless entry is objectively reasonable under the Fourth Amendment.”
Suicidality presents a tragically common example of exigent circumstances. 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. And Rice held 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. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. 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.
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. 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. Deputy Gallardo’s entry was clearly in line with Rice, exigent circumstances existed, and no constitutional violation occurred.
B. Excessive force claim
Plaintiffs assert that Deputy Gallardo used excessive force when he shot Steve, and Deputy Gallando counters that his 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.
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, was neither excessive nor unreasonable because a police officer does not have to permit a suspect to aim his weapon before answering the threat. See Salazar-Limon.
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 “had 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 Ontiveros.
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 posed a threat of serious harm to him or to others. 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 threat. Deputy Gallardo’s use of deadly force was neither excessive nor unreasonable under our binding caselaw, meaning no constitutional violation occurred.
C. Supervisory liability claim
Plaintiffs also allege a failure-to-supervise claim against Sheriff Babcock, relying on the single incident exception to do so. Plaintiffs 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. See Roberts. Even assuming arguendo that there was a failure to supervise, Appellants cannot succeed at the second step because no violation of rights occurred.
D. Monell claim
Plaintiffs also levy a Monell claim against Young County. Municipal 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. It is well established that there must be an underlying constitutional violation for there to be a claim under Monell. But no constitutional violation took place here. So, the Monell claim lacks an underlying constitutional claim and therefore fails.
https://www.ca5.uscourts.gov/opinions/pub/24/24-10017-CV0.pdf