Case: 10-40208 Document: 00511324330 Page: 1 Date Filed: 12/16/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 16, 2010
No. 10-40208 Lyle W. Cayce
Clerk
DAN KOVACIC, Individually, and With An Interest in the Estate of Zachary
Kovacic, Deceased; ELIZABETH FOX, Individually, and With An Interest in
the Estate of Zachary Kovacic, Deceased; ERIN MICHELLE KOVACIC,
Individually, and As Next Friend of Carley Nicole Kovacic, Both With An
Interest in the Estate of Zachary Kovacic, Deceased, CARLEY NICOLE
KOVACIC, Minor Child With an Interest in the Estate of Zachary Kovacic,
Deceased,
Plaintiffs-Appellees
v.
JUAN VILLARREAL, Individually, and In His Official Capacity; JOSE D.
RUBIO, Individually, and In His Official Capacity,
Defendants-Appellants
Appeal from the United States District Court
for the Southern District of Texas
Before KING, GARWOOD, and DAVIS, Circuit Judges.
GARWOOD, Circuit Judge.
Plaintiffs-appellees brought a 42 U.S.C. § 1983 claim against City of
Laredo Police Officers Juan Villarreal and Jose D. Rubio to recover damages
for the death of Zachary Kovacic. The issue on appeal is whether the
defendants-appellants are entitled to summary judgment on the defense of
qualified immunity. For the reasons stated below, we find that Officers Rubio
Case: 10-40208 Document: 00511324330 Page: 2 Date Filed: 12/16/2010
and Villarreal are entitled to summary judgment and reverse the district
court’s order denying it.
STANDARD OF REVIEW
We review de novo a district court’s denial of a motion for summary
judgment on the basis of qualified immunity. Flores v. City of Palacios, 383
F.3d 391, 394 (5th Cir. 2004). Summary judgment is applicable when it is
determined that there is “no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” F ED.R.C IV.P. 56(a). A
denial of a motion for summary judgment on the issue of qualified immunity
is immediately appealable, to the extent that the district court’s order turns
on an issue of law. Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010).1 Once a
defendant invokes qualified immunity, the burden shifts to the plaintiff to
show that the defense is not available. McClendon v. City of Columbia, 305
F.3d 314, 323 (5th Cir. 2002). As we said in Thompson v. Upshur County, Tx.,
245 F.3d 447, 456 (5th Cir. 2001) (quoting with approval from Pierce v. Smith,
117 F.3d 866, 871-72 (5th Cir. 1997)):
“Where, as here, a section 1983 defendant pleads qualified
immunity and shows he is a governmental official whose position
involves the exercise of discretion, the plaintiff then has the
1
The district court did find in its order denying summary judgment that there was a
factual dispute sufficient to defeat summary judgment. When deciding an interlocutory
appeal of a denial of qualified immunity, we do not have jurisdiction to review the
genuineness of any factual disputes but can decide whether the factual disputes are
material. Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000). The district court
identified only one disputed fact in its order– the officers’ testimony about Kovacic’s level of
intoxication. If the district court does not specify all the facts that it finds to be in dispute,
we “conduct an analysis of the record to determine what issues of fact the district court
likely considered genuine.” Id. See also, e.g., Colston v. Barnhart, 146 F.3d 282, 285 (5th
Cir. on petition for rehearing en banc), cert. denied, 119 S.Ct. 618 (1998); Thompson v.
Upshur County, Tx., 245 F.3d 447, 455-56 (5th Cir. 2001); Manis v. Lawson, 585 F.3d 839,
842-43 (5th Cir. 2009). After conducting such a review (and accepting, arguendo, plaintiffs’
claims as to the evidence of Kovacic’s level of intoxication), we find that there are no
disputes of fact that are material to the question of whether or not the defendants are
entitled to summary judgment on the basis of qualified immunity.
Case: 10-40208 Document: 00511324330 Page: 3 Date Filed: 12/16/2010
burden ‘to rebut this defense by establishing that the official’s
allegedly wrongful conduct violated clearly established law.’
Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992). We do ‘not
require that an official demonstrate that he did not violate clearly
established federal rights; our precedent places that burden upon
plaintiffs.’ Id.”
Further, where as here, a defendant moves for summary judgment and
correctly points to an absence of evidence to support the plaintiff’s claim on
an issue as to which plaintiff would bear the burden of proof at trial, then
summary judgment should be granted for the defendant unless the plaintiff
produces summary judgment evidence sufficient to sustain a finding in
plaintiff’s favor on that issue. Anderson v. Liberty Lobby Inc., 106 S.Ct. 2505,
2511 (1986); Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552-53 (1986); Johnson
v. Deep East Texas Narcotics Trafficking Task Force, 379 F.3d 293, 337 (5th
Cir. 2004) (qualified immunity).
FACTS AND PROCEEDINGS BELOW
On August 9, 2007, Zachary Kovacic met several of his co-workers at
the Cheers Cocktail Lounge (Cheers) in Laredo, Texas at around 9:30 p.m.
Kovacic was working on a work crew in Laredo, and his wife and daughter
had traveled from their home in Colorado to join him. After several hours at
Cheers, Kovacic was escorted outside of the bar by Cheers employees.
Kovacic was allegedly intoxicated and involved in an altercation with another
man over a woman. At approximately 1:33 a.m., an employee of Cheers called
the Laredo Police Department to notify them that there was an intoxicated
person at the bar who needed to be escorted off of the premises. Several
Laredo police officers arrived, including appellants Rubio and Villarreal.
Kovacic, who had been handcuffed by Cheers employees, was handcuffed
again by the officers and placed in the back of Officer Rubio’s squad car. One
3
Case: 10-40208 Document: 00511324330 Page: 4 Date Filed: 12/16/2010
of the officers contacted the Webb County Jail and was told that due to
overcrowding, there was not room for a person charged only with a Class C
misdemeanor, which applies to the offense of public intoxication. The officers
informed the friends and relatives of Kovacic who were still at Cheers that
they, the officers, were going to transport Kovacic to his hotel, the Value Inn
on Loop 20. At 2:08 a.m., Kovacic was unhandcuffed and released into the
parking lot of an Exxon Speedy Stop gas station at the intersection of Del Mar
and Loop 20. The Speedy Stop was a convenience store/gas station which was
then lighted and open to the public for business, as it was 24 hours a day. It
was some five to six miles from Kovacic’s hotel. The officers stated in their
summary judgment affidavits that Kovacic insisted that he be dropped off at
the gas station, where he would call his wife at the hotel to come pick him up.
The officers left the parking lot after Kovacic got out of the car. At
approximately 2:33 a.m., Kovacic was hit while walking in the roadway of
Loop 20, about 1/4 mile north of the Speedy Stop, by an unknown hit-and-run
driver. He did not regain consciousness and subsequently died from the
injuries he thus received.2 Plaintiffs presented evidence that, as later
determined, Kovacic’s blood alcohol at the time he was hit was .205.
Plaintiffs, who all have an interest in the estate of Zachary Kovacic,
filed this action against Cheers Cocktail Lounge, Officers Villarreal and
Rubio, the former Laredo Chief of Police, and the City of Laredo. The original
claims against appellants were under 42 U.S.C. § 1983 for false arrest,
excessive force and failure to protect. The appellants filed a F ED. R. C IV. P.
12(b)(6) motion to dismiss arguing that the plaintiffs had failed to state a
2
The next day or so, Kovacic’s wallet was found by a third party behind a dumpster
at the Speedy Stop. There was no money in it when thus found. Kovacic had cashed a
several hundred dollar paycheck earlier in the day on August 9.
4
Case: 10-40208 Document: 00511324330 Page: 5 Date Filed: 12/16/2010
valid constitutional claim. While their motion to dismiss was still pending
before the district court, appellants filed a motion for summary judgment.
The district court issued an order granting in part and denying in part the
motion to dismiss. The court dismissed all claims against the officers save for
the 42 U.S.C. § 1983 due process claim under the “special relationship”
theory. The district court subsequently denied the appellants’ motion for
summary judgment. Appellants here interlocutorily appeal the denial of their
motion for summary judgment.
DISCUSSION
Section 1983 provides a cause of action for persons who have been
“depriv[ed] of any rights, privileges, or immunities secured by the
Constitution and laws” of the United States by the actions of a person or
entity operating under color of state law. 42 U.S.C. § 1983. Qualified
immunity was created to insulate government officials “from liability for civil
damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 102 S.Ct. 2727, 2738 (1982). To determine if a
defendant is entitled to qualified immunity, this court must determine
“whether the defendant’s actions were objectively unreasonable in light of
clearly established law at the time of the conduct in question.” Freeman, 483
F.3d at 410-11. In light of the Supreme Court’s decision in Pearson v.
Callahan, we are permitted to consider the question of whether a defendant
is entitled to qualified immunity without determining whether or not the
plaintiff’s constitutional rights were violated. 129 S.Ct. 808, 821 (2009).
There is a recognized substantive due process right for individuals to
be free from bodily harm caused by the state, but as a general rule, there is
no constitutional duty that requires state officials to protect persons from
5
Case: 10-40208 Document: 00511324330 Page: 6 Date Filed: 12/16/2010
private harms. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs. 109 S.Ct.
998, 1004 (1989). The Supreme Court in DeShaney did recognize that there
could be exceptions to this general rule. One of these exceptions applies when
there is a “special relationship” between the individual and the state. This
relationship is formed “[w]hen the state, through the affirmative exercise of
its powers, acts to restrain an individual’s freedom to act on his own behalf
‘through incarceration, institutionalization, or other similar restraint of
personal liberty’.” McClendon v. City of Columbia, 305 F.3d 314, 324 (5th Cir.
2002) (quoting DeShaney, 109 S.Ct. at 1005). The state does have a
constitutional duty to protect individuals in such relationship to the state
from dangers, which in certain circumstances can include private violence.
McClendon, 305 F.3d at 324.
We hold that defendants Villarreal and Rubio are entitled to qualified
immunity from plaintiffs’ section 1983 claim. A constitutional right is clearly
established for the purposes of section 1983 only if the law is clear enough
such that “a reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 107 S.Ct. 3034, 3039 (1987). To
determine whether state officials had “fair warning” that their conduct was
unconstitutional, we consider the status of the law both in our circuit and in
our sister circuits at the time of the defendants’ actions. McClendon, 305
F.3d 314 at 329. The plaintiffs argue that a “special relationship” existed
between Kovacic and the defendant officers because he had been in their
custody at one point in time and thus the officers should be liable for the
private violence perpetrated against him by the hit-and-run driver. Plaintiffs
have not referenced a single case in either the district courts or the court of
appeals of this circuit in which state actors were held liable for private harm
6
Case: 10-40208 Document: 00511324330 Page: 7 Date Filed: 12/16/2010
caused to an individual after he was released from custody. In DeShaney
itself, the Court held that the state actor at issue, a county Department of
Social Services, had no duty to act because the plaintiff was no longer in the
department’s custody and thus his liberty to act on his own behalf was not
limited by the state actor. 109 S.Ct. at 1005-06.
The plaintiffs do point to a case decided by the Sixth Circuit, Davis v.
Brady, in which that court found that the plaintiff had a valid section 1983
claim against police officers who abandoned him in an intoxicated condition
on a highway, where he was subsequently hit by a car and severely injured.
143 F.3d 1021 (6th Cir. 1998). However, the facts in Davis distinguish it from
the instant case. The plaintiff in Davis testified that he asked the officers not
to be released on the road but the officers threw him out of the car in order to
“teach [him] a lesson.” Id. at 1023. As stated above, once a defendant invokes
qualified immunity, the burden shifts to the plaintiff to show that the
defendant is not entitled to qualified immunity. The plaintiffs in this case
have not presented any evidence to contradict Rubio’s and Villarreal’s
affidavits that Kovacic demanded to be let out of the squad car in the Speedy
Stop parking lot and thus was released from their custody at his request.
There is also no evidence in the record that shows that the officers had any
reason to think that Kovacic likely would not call his wife to pick him up as
he indicated, or that the officers were aware that Kovacic was lacking the
resources to secure another way home.
Additionally, the Sixth Circuit recognizes the “state-created danger”
theory of section 1983 liability and references it in its opinion in Davis. Id. at
1025. A number of courts have interpreted DeShaney to allow a second
exception to the rule against state liability for violence committed by private
7
Case: 10-40208 Document: 00511324330 Page: 8 Date Filed: 12/16/2010
actors in situations where “the state actor played an affirmative role in
creating or exacerbating a dangerous situation that led to the individual’s
injury.” McClendon, 305 F.3d at 324. The Fifth Circuit has not adopted the
“state-created danger” theory of liability. See Bustos v. Martini Club Inc., 599
F.3d 458, 466 (5th Cir. 2010); Rios v. City of Del Rio, 444 F.3d 417, 422 (5th
Cir. 2006). As such, the analysis in Davis pertaining to whether the police
officers put the victim in a more vulnerable position than he would have been
otherwise is not applicable in this circuit and would not put the officers on
reasonable notice of a constitutional violation.
Plaintiffs cite to Walton v. Alexander as their sole support in the Fifth
Circuit for the “special relationship” theory as applied to this situation. 44
F.3d 1297 (5th Cir. 1995). In Walton, this court only specifically holds that it
adopts the special relationship theory outlined in DeShaney. It does not
provide any support for expanding an officer’s duty under section 1983 past
the point in time when the victim is no longer in the officer’s custody. Given
the lack of any contrary precedent, we hold that reasonable, competent
officers would not conclude that it would violate Kovacic’s constitutional
rights to honor his request that he be let out at the Speedy Stop. No such
constitutional law was then, or is now, clearly established. The defendant
officers are entitled to qualified immunity, and the district court’s denial of
their motion for summary judgment is reversed.
CONCLUSION
For the foregoing reasons, we REVERSE the district court’s order
denying the officers’ motion for summary judgment on plaintiffs’ section 1983
claim.
8