Morin v. Moore

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 01-40752

DAN MORIN, Individually and
as Representative of the Estate of
Margarita Flores, Deceased, Plaintiff-Appellant,

versus

RALPH D. MOORE; JOSEPH VASQUEZ;
JIM SCHOEPNER; CITY OF HARLINGEN, Defendants-Appellees.

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DONALD MORIN; DIANA MORIN;
JENNIFER MAY GWIN; DANNY MORIN;
RUBEN RIOS, SR., as next friend of Ruben Rios,
a minor; MARIA D. LOPEZ, as next friend of
Brian Morin, a minor, Plaintiffs-Appellants,

versus

RALPH D. MOORE; JOSEPH VASQUEZ;
JIM SCHOEPNER; CITY OF HARLINGEN, Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Texas

October 23, 2002

Before DAVIS, DeMOSS, and STEWART, Circuit Judges.

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CARL E. STEWART, Circuit Judge:

Dan Morin, individually and as a representative of the Estate of Margarita Flores (the “Dan

Morin plaintiffs”), and Donald Morin, Diana Morin, Jennifer May Gwin, Danny Morin, Ruben Rios,

Sr., as next friend of Ruben Rios, and Maria D. Lopez, as next friend of Brian Morin (the “Donald

Morin plaintiffs”) (collectively, the “Morins”), appeal from the district court’s Rule 12(b)(6) dismissal

of their 42 U.S.C. § 1983 and state tort law claims. For the reasons set forth below, we AFFIRM

in part, REVERSE in part, and REMAND.

FACTUAL AND PROCEDURAL HISTORY

The Morins filed separate complaints for damages pursuant to § 1983 against the City of

Harlingen, Texas (“the City”), two of its police officers, and its police chief for alleged violations of

their Fourth and Fourteenth Amendment rights.1 The Morins alleged that prior to 1994, defendant

Officer Joseph Vasquez wrongfully came into possession of an “AK-47" assault rifle with the

permission of Police Chief Jim Schoepner during Officer Vasquez’s employment with the Harlingen

Police Department–the rifle having been given to the police department by a private citizen to be

destroyed. In September of 1997, Officer Vasquez allegedly “transferred” or “made available” the

weapon to Officer Ralph Moore (collectively with Officer Vasquez, the “officers”). Officer Moore

allegedly stored the weapon in his son’s, Ernest Moore’s (“Ernest’s”) bedroom. According to the

Morins, the officers knew that Ernest was a psychologically unstable drug user that revered the Nazi

ideology.

The Morins alleged that on July 7, 1998, Ernest procured the weapon from his bedroom and

opened fire on Dan Morin, Margarita Flores, and Delia Morin, killing both Margarita Flores and Delia

1
The Morins separate actions were subsequently consolidated.

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Morin. Allegedly, Ernest was upset that his ex-girlfriend, Julie Cox, was in a relationship with Dan

Morin. The Morins furt her alleged that the City and Police Chief Schoepner created a dangerous

environment and maintained unconstitutional polices and procedures, which ultimately allowed the

officers to take possession of the assault rifle, despite their lack of training on use and storage of the

weapon.

The Morins filed state law claims for negligent entrustment, ordinary negligence, and misuse

of property under section 1.01 of the Texas Tort Claims Act (“TTCA”). The Donald Morin plaintiffs

also alleged that Officer Moore breached his duty as a Harlingen police officer by not taking the

necessary steps to prevent the commission of the crime at issue.

The defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),

as well as on qualified immunity grounds. The magistrate judge issued a report recommending that

the complaint be dismissed because the Morins failed to plead a constitutional injury. Specifically,

the magistrate judge determined that the Morins failed to state a claim under the Fourth Amendment

because there was no allegation that the defendants deliberately directed force toward the Morins.

Regarding the Fourteenth Amendment claim, the magistrate judge noted that the “state-

created danger” theory had yet to be adopted by the Fifth Circuit. Nevertheless, the magistrate judge

concluded that even analyzing the qualified-immunity issue under the “state-created danger” theory,

the Morins were not denied their due process rights because Officer Vasquez’s transfer of the rifle

to Officer Moore could not be characterized as a governmental decision within the meaning of the

theory. As a result, the magistrate judge determined that the individual defendants were entitled to

qualified immunity. The magistrate judge also determined that the City could not be held liable.

Regarding the state-law claims, the magistrate judge dismissed the Morins’ negligent

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entrustment claim because the claim was lacking proof of a positive act, i.e. that Officer Moore gave

Ernest the rifle. The magistrate judge further held that Texas law do es not impose liability on the

police for failing to take action to prevent a crime.

The Dan Morin plaintiffs objected to the magistrate judge’s report and recommendation.

After conducting a de novo review, the district court adopted the recommendations of the magistrate

judge and dismissed the Morins’ claims with prejudice. The Donald Morin plaintiffs filed a timely

notice of appeal from the portion of the judgment dismissing their § 1983 claims and upholding the

qualified-immunity defense. The Dan Morin plaintiffs filed a timely notice of appeal from the district

court’s order granting the motion to dismiss.

STANDARD OF REVIEW

We review a Rule 12(b)(6) dismissal de novo, accepting all well-plead facts as true. Mowbray

v. Cameron County, Tex., 274 F.3d 269, 276 (5th Cir. 2001). Questions of fact are viewed in the

light most favorable to the plaintiffs, and questions of law are reviewed de novo. Id. “Rule 12(b)(6)

motions should not be granted unless it appears beyond a doubt that the plaintiff[s] can prove no set

of facts in support of [their] claim which would entitle [them] to relief.” Castro Romero v. Becken,

256 F.3d 349, 353 (5th Cir. 2001) (internal quotations and citations omitted).

DISCUSSION

The following three issues raised on appeal are: whether the district court erred in (1)

determining that the Morins did not state a federal claim against the City under the state-created

danger theory, (2) granting the individual defendants qualified immunity, and (3) dismissing the

Morins’ state-law claims. We now turn to these issues.

I. State-Created Danger Theory of Liability

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 The Morins argue that the district court’s dismissal of their federal claims against the City was

erroneous in light of this Court’s decision in McClendon v. City of Columbia, 258 F.3d 432, 436 (5th

Cir. 2001) (adopting the state-created danger theory of liability) (“McClendon I”). The Morins also

argue that the district court erred in its determination that, even if the state-created danger theory was

viable, the plaintiffs did not plead sufficient allegations to support the theory.

A. Procedural Issues

Before we can reach the merits of the Morins’ claims, we must first address two procedural

issues. First, we must determine whether the Dan Morin plaintiff’s non-specific objection to the

magistrate judge’s report and recommendation is sufficient. The City and the officers argue that such

a blanket objection is insufficient to preserve an objection. Thus, the City and officers urge us to apply

a plain error standard of review, despite the district court’s statement that it conducted a de novo

review of the entire file.

An issue reviewed de novo by the district court will ordinarily be held to have been properly

objected to before it was reviewed. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th

Cir. 1996) (en banc). The district court in this case conducted a de novo review of the Dan Morin

plaintiffs’ objections. Therefore, the City and officers’ assertion that plain-error review applies is not

supported. See also Meister v. Tex. Adjutant Gen’s Dep’t, 233 F.3d 332, 336 (5th Cir. 2000)

(“[W]hen the district court has engaged in de novo review, we do not require . . . specific objections

to the magistrate judge's report as a prerequisite to full review.”). As such, we will apply a de novo

standard of review to the Dan Morin plaintiffs’ claims.

Despite being warned of the consequences for failing to timely object, the Donald Morin

plaintiffs did not file objections, timely or otherwise, to the magi strate judge’s report and

5
recommendations. Ordinarily, the failure to file written objections to the magistrate judge's report

within ten days of service mandates plain-error review on appeal. Douglass, 79 F.3d at 1429.

However, because the district court conducted a de novo review of the objections raised by the Dan

Morin plaintiffs, and these objections were equally applicable to the Donald Morin plaintiffs, we will

apply a de novo standard of review to the Donald Morin plaintiffs’ claims as well.

Second, the Donald Morin plaintiffs argue to this Court that the dismissal of their state-law

claims was erroneous despite the fact that this argument was not included in their notice of appeal.

The Donald Morin plaintiffs’ notice of appeal states that they appealed “from the final judgment and

order dismissing Plaintiffs’ complaint for failure to state a cause of action based on 42 U.S.C. § 1983

and based on qualified immunity that was ent ered in this cause on the 16th Day of May, 2001.”

Federal Rule of Appellate Procedure 3(c)(1)(B) requires that the notice of appeal “designate the

judgment, order, or part thereof being appealed.” (emphasis added). This Court broadly construes

Rule 3(c)’s requirement that the notice of appeal designat e the judgment or order from which the

appeal is taken. N.Y. Life Ins. Co. v. Deshotel, 142 F.3d 873, 884 (5th Cir. 1998); United States v.

Ramirez, 932 F.2d 374, 375 (5th Cir. 1991). If a mistake is made in the designation of the order to

be appealed, a technical error does not bar review “if the intent to appeal a particular judgment can

be fairly inferred and if the appellee is not prejudiced or misled by the mistake.” Deshotel, 142 F.3d

at 884. This Court has applied this standard where the plaintiff appealed only a portion of the

judgment. Ramirez, 932 F.2d at 376. Thus, because (1) t he Donald Morin plaintiffs identified the

judgment appealed from, (2) briefed the denial of their state-law claims, and (3) the appellees did not

suffer any prejudice because they briefed the state-law issues in response to the arguments posed by

the Dan Morin plaintiffs, who properly appealed the entire judgment, we will broadly construe the

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Donald Morin plaintiffs’ notice of appeal. Id. (considering the same factors).

B. Substantive Issues

“To plead a constitutional claim for relief under § 1983, [a plaintiff must] allege a violation

of a right secured . . . by the Constitution or laws of the United States and a violation of that right

by one or more state actors.” Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994).

The Due Process Clause of the Fourteenth Amendment does not, as a general matter, require the

government to protect its citizens from the acts of private actors. DeShaney v. Winnebago County

Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989). One exception to this general rule, is the state

created danger theory adopted by some of our sister circuits. See, e.g., Gregory v. City of Rogers,

Ark., 974 F.2d 1006, 1010 (8th Cir. 1992) (en banc) (“We have held the Due Process Clause imposes

a duty on state actors to protect or care for citizens in two situations: first, in custodi al and other

settings in which the state has limited the individuals' ability to care for themselves; and second, when

the state affirmatively places a particular individual in a position of danger the individual would not

otherwise have faced.”). In other words, if a governmental actor knowingly places a citizen in

danger, he or she may be accountable for the foreseeable injuries that result. Id.

At the time of the district court’s decision, this Court had recognized but never adopted the

state-created danger theory. See Johnson, 38 F.3d at 200-01. In McClendon I, which was decided

during the pendency of the present appeal, a panel of this Court “explicitly adopted and enforced this

theory”and held that because McClendon demonstrated a genuine issue of material fact regarding

each element of the state-created danger theory, his § 1983 claim against the defendant police officer

for violation of his substantive due process right should not have been dismissed on summary

judgment. 258 F.3d at 436. In our recent rehearing of McClendon I en banc, however, we neither

7
adopted nor rejected the state created danger theory. McClendon v. City of Columbia, _ F.3d _ (5th

Cir. 2002 (en banc) (McClendon II). In McClendon II, the en banc Court did make clear, however,

that at the time of the events in McClendon I, a state-created danger theory was not clearly

established in this Circuit such as to sustain a § 1983 claim. Id. Any statements to the contrary in

McClendon I were expressly vacated. Id.

In order to recover under the state-created danger theory, we assume that a plaintiff would

have to show, at a minimum, that: (1) the state actors created or increased the danger to the plaintiff

and (2) the state actors acted with deliberate indifference. See Piotrowski v. City of Houston, 51

F.3d 512, 515 (5th Cir. 1995) (“Piotrowski I”) (citation and internal quotations omitted). To

establish deliberate indifference, “a state actor must know[] of and disregard[] an excessive risk to

the [the victim’s] health and safety....The state actor’s actual knowledge is critical to the inquiry. A

state actor’s failure to alleviate ‘a state significant risk that he should have perceived but did not,’

while ‘no cause for commendation,’ does not rise to the level of deliberate indifference.” McClendon

II, _ F.3d at _ (citations omitted).

The magistrate judge concluded that, based on the allegations in the Morins’ complaints, no

valid claim was pled because the Morins failed to allege that any state actor had actual knowledge

of a specific risk of harm to a known victim. The Morins contend that consistent with the companion

case of Rodriguez v. City of Harlingen, the officers and the City had knowledge of the risk of harm

to the Morins. No. B-98-163, (S.D. Tex., Apr. 11, 1990) (nunc pro tunc order denying the

Defendant’s motion to dismiss as to the plaintiffs’ state-created danger claim against the City). In

Rodriguez, which involved Ernest’s subsequent shooting of two border patrol agents, the district

court refused to dismiss the City on the defendants’ Rule 12(b)(6) motion based on the state created

8
theory of liability. The district court distinguished Rodriguez from previous state-created danger cases

based on the following:

[T]he plaintiffs have pled facts that indicate that the particular predicament faced by
the decedent was not one normally faced by a Border Patrol agent. The policies of
the City of Harlingen allowed a civilian version of a military assault rifle to fall into
the hands of a person who was not a police officer and who was extremely dangerous.
It is reasonable to infer that [Ernest] would not have been able to cause the death of
the decedent with a less po werful weapon and that a military style rifle would not
have been available to [Ernest] if [Officer Moore] had not kept one in his home. In
addition, one can reaso nabl[y] infer that the police department’s final policymaker,
Defendant Schoepner, knew that [Ernest] posed a real threat to the decedent. Given
that [Officer Moore] told the first person who walked up to his house that his son was
on the verge of killing himself or a third person, had taken his father’s missing weapon
and had committed a prior crime, it would be reasonable to infer that he conveyed the
same information to Defendant Police Chief Schoepner, a long-time friend, in the
telephone conversation they had before the decedent was killed. If Defendant Police
Chief Schoepner knew of the real threat posed by [Ernest] before the decedent was
killed, he could have avoided the danger he created by warning the law enforcement
team surrounding the house to take necessary precautions to secure their safety.

Id. at 21-22.

In this case, the magistrate judge distinguished Rodriguez because in that case the defendant

had knowledge of Ernest’s criminal intent based on the fact that he shot Dan Morin, Margarita Flores,

and Delia Morin prior to the events leading up to the death of Rodriguez. Thus, the magistrate judge

reasoned that even if the state created danger theory was viable, the Morins’ reliance on Rodriguez

is unpersuasive. We agree with the district court’s conclusion that the allegations in this case do not

show specific knowledge of a harm to a known victim.

The Morins, however, insist that they did set forth allegations tending to show knowledge

of risk and harm. The Morins contend that Officer Moore and Police Chief Schoepner had actual

knowledge of the risk of harm posed to the Morins. These allegations, however, are not found in

either their original or amended complaints. The Donald Morin plaintiffs allege that Officer Moore

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kicked Julie Cox out of his home, that he knew she had a new boyfriend, and that he knew his son

was looking for them the night before the murders. The Donald Morin plaintiffs, however, do not cite

to the record for any of these allegations. It appears that these allegations were raised for the first

time in the amended complaint in opposition to the defendants’ motion to dismiss. Although arguably

these allegations should not be considered, this Court has held, that in the interest of justice a revised

theory of the case set forth in the plaintiff’s opposition should be construed as a motion to amend the

pleadings filed out of time and granted by the district court pursuant to the permissive command of

Rule 15. Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972). Accordingly, we will analyze

the propriety of the dismissal in light of these subsequent allegations.

Issues raised for the first time on appeal are generally not reviewed, save “exceptional

circumstances,” and then for plain error only. Kinash v. Callahan, 129 F.3d 736, 739 n.10 (5th Cir.

1997). This case does not present such a circumstance. Here, the Dan Morin plaintiffs’ allegations

that Officer Moore and Police Chief Schoepner knew that the Morins, a Hispanic family, was a target

due to Ernest’s extreme racial beliefs are not found in either the original or first amended complaint.

Although the complaint alleges that Ernest was a collector of Neo-Nazi propaganda, the specific

allegations concerning Officer Moore’s and Police Chief Schoepner’s knowledge of racial animus

directed toward the Morins are not found on the pages of the record cited by the Dan Morin

plaintiffs. While “reasonable inferences” are allowed to be drawn from the complaint’s allegations

regarding Ernest’s Neo-Nazi ideology, the Dan Morin plaintiffs did not allege that Officer Moore

knew the identity of Julie Cox’s boyfriend, or his race. See Gen’l Star Indem. Co. v. Vesta Fire Ins.

Corp., 173 F.3d 946, 950 (5th Cir. 1999) (permitting reasonable inferences to be drawn from the

complaint). Thus, the allegations that Officer Moore had knowledge of Ernest’s racial animus and

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the attack on the Morins are being raised for the first time on appeal. The Dan Morin plaintiffs did

not plead these allegations in their first amended complaint, did not raise this objection to the

magistrate judge’s report, or raise these allegations in the district court. As a result, these allegations

will not be considered.

Even if we were to consider all of the Morins’ allegations, they fail to satisfy the “state-

created-danger” theory because the Morins have failed to demonstrate that the officers acted with

deliberate indifference. Viewed in their entirety and taken as true, the Morins’ allegations establish

that (1) Officer Moore knew that his son was a psychologically unstable drug user who decorated his

room with Neo-Nazi paraphernalia; (2) Officer Moore knew his son was upset that his ex-girlfriend

had moved in with her new boyfriend, an Ala-Texas Restaurant employee; (3) Officer Moore knew,

on the night prior to the murders, that Ernest requested a telephone number that was written on the

back of a Ala-Texas Restaurant business card; (4) because Officer Moore was cognizant of his son’s

drug abuse, the break-up with his girlfriend, and the girlfriend’s new relationship, he was also

cognizant of the fact that a “confrontation” bet ween his son, the ex-girlfriend, and “her new

boyfriend” would ensue; and (5) that on July 7, 1998, his son took the AK-47 from the safe in his

bedroom and killed or injured Dan Morin, Margarita Flores and Delia Morin. Notwithstanding the

above recital, the Morins’ allegations do not demonstrate that Officer Moore “used [his] authority

to create an opportunity that would not otherwise have existed.” Piotrowski v. City of Houston, 237

F.3d 567, 585 (5th Cir. 2001) (“Piotrowski II”), cert. denied, 122 S.Ct. 53 (2001). The Morins’ case

is similar to Piotrowski II, where jury-trial evidence revealed that members of the Houston Police

Department had actually shielded and protected the plaintiff’s wealthy boyfriend and his accomplices

as they harassed the plaintiff and plotted to kill her. Id. at 573-75. This Court determined that “no

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matter what official protection [the assailants] received, the City actors did not create the danger [that

the plaintiff] faced . . . [T]he City at most left her in an already dangerous position.” Id. at 584.

Thus, the Morins have failed to allege facts that would satisfy the state-created danger theory and the

district court did not err in dismissing this claim.2

II. State-Law Causes of Action

Having disposed of the Morins’ federal claims, we will now address the Morins’ various state-

law claims in turn.

A. The Donald Morin Plaintiffs’ Claim for Negligent Entrustment

The Donald Morin plaintiffs first argue that the district court erred in dismissing their state-

law claim for negligent entrustment.

i) Officer Moore’s Negligent Entrustment

In analyzing a Texas state law claim, we have a duty to apply Texas law. Erie R. Co. v.

Tompkins, 304 U.S. 64, 78 (1938). In making an Erie determination, “[w]e are emphatically not

permitted to do merely what we think best; we must do that which we think the [Texas] Supreme

Court would deem best.” Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 397 (5th Cir. 1986)

(en banc). The Texas Supreme Court has not yet spoken on the issue of negligent entrustment of a

firearm. To satisfy our Erie duty, we turn to Texas’s appellate court case law. To establish a claim

for negligent entrustment of a firearm, a plaintiff must prove that the owner entrusted the firearm to

2
The Dan Morin plaintiffs filed a motion with this Court seeking a remand to amend their pleadings so that they
may further outline their § 1983 claim. Because the motion fails to set forth allegations that would change our analysis,
and because they have already amended their complaint twice, and did not seek leave to amend further, we conclude
that a remand is not warranted. See FED. R. CIV. P. 15(a) (“A party may amend the party’s pleading once as a matter
of course at any time before a responsive pleading is served . . . [o]therwise, a party may amend the party’s pleading
only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so
requires.”). We therefore deny the motion. We also need not consider the Dan Morin plaintiffs request for limited
discovery on the qualified immunity issue given our affirmance of the dismissal of the Morins § 1983 claim.

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a person who he knew, or had reason to know, would be likely “because of his youth, inexperience,

or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others

whom the [owner] should expect to share in or be endangered by its use.” Kennedy v. Baird, 682

S.W.2d 377, 379 (Tex. App. 1984).

The magistrate judge determined that negligent entrustment under Texas law required a

positive act, which was found to be absent in this case because Officer Moore did not give Ernest the

rifle.3 Contrary to the magistrate judge’s determination, the Donald Mo rin plaintiffs alleged that

Officer Moore “permitt[ed] the weapon to be used by Ernest.” The magistrate judge erroneously

ignored this allegation. Under the circumstances of this case, we are confident that Texas courts

would allow a negligent entrustment claim. In Kennedy, two plaintiffs, who were intentionally shot

by the defendant’s adult son, sued for negligent entrustment. Id. at 377. The court noted that “[a]

firearm is a deadly weapon per se, and [that] under certain circumstances, the owner may be charged

with responsibility for the use made of it where the control of the weapon is passed to another.” Id.

at 378 (internal citation omitted). The court then explained negligent entrustment cases as follows:

Most of the cases involve entrustment of the weapon to a minor child, but there are
exceptional cases where the entrustment of the weapon was to an adult. Thus, a cause of
action [is] recognized where there [is a] sale of a firearm to a person obviously demented who
immediately use[s] the weapon to kill a third person. . . . Potential liability in such a situation
is recognized by [the] Restatement of Torts [wherein it states that] [o]ne who supplies
directly or through a third person a chattel for the use of another whom the supplier knows
or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it
in a manner involving unreasonable risk of physical harm to himself and others whom the
supplier should expect to share in or be endangered by its use, is subject to liability for
physical harm resulting to them.

Id. at 379. (citations omitted).

3
Texas’s appellate courts have analogized claims for negligent entrustment of a firearm to a claim for negligent
entrustment of an automobile. E.g., Prather v. Brandt, 981 S.W.2d 801, 806 (Tex. App. 1998).

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 Ultimately, the court in Kennedy granted the defendant’s summary judgment motion,

concluding that the plaintiffs could not prove the requisite knowledge of the entrustee’s

incompetency. It is clear, however, that such a claim would lie if the defendant had knowledge of the

entrustee’s incompetency. In the case at hand, the Donald Morin plaintiffs alleged that Ernest “was

known to be psychologically unstable, a cocaine user and the recipient of prescription drugs.” See

Prather v. Brandt, 981 S.W.2d 801, 806 (Tex. App. 1998) (explaining that an entrustment of a

firearm is negligent if the defendant is aware that the entrustee is “incompetent, reckless, or otherwise

likely to act negligently with the []gun”). Under these circumstances, the district court erred in

dismissing this claim against Officer Moore.

ii) Police Chief Schoepner and Officer Vasquez’s Negligent Entrustment

Because the Donald Morin plaintiffs have not alleged that Police Chief Schoepner knew that

the officers were incompetent or reckless, they cannot state a claim against Police Chief Schoepner

or Officer Vasquez for negligently entrusting the weapon. Id.

B. The Donald Morin Plaintiffs’ Claim for Ordinary Negligence

The Donald Morin plaintiffs first argue that the district court erred in dismissing their state-

law claim for ordinary negligence.

i) Officer Moore’s Negligence

We conclude that the Donald Morin plaintiffs have stated a valid claim against Officer Moore

for ordinary negligence. The Donald Morin plaintiffs assert that the magistrate judge glossed over

their allegations of negligence. A review of the magistrate judge’s report and recommendation,

however, reveal that the magistrate judge did not address the negligence claim. In the Donald Morin

plaintiffs’ original complaint, they clearly allege that the officers were “negligent in various acts and

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omissions, each of which singularly and collectively were proximate causes of the deaths of the

decedents.”

To state a claim for negligence in Texas, a plaintiff must show duty, breach, causation, and

damages. Ambrosio v. Carter’s Shooting Ctr., Inc., 20 S.W.3d 262, 265 (Tex. App. 2000). “[W]hen

determining whether a duty exists, the foremost and dominant consideration is the foreseeability and

likelihood of the risk.” Wal-Mart Stores, Inc. v. Tamez, 960 S.W.2d 125, 130 (Tex. App. 1997).

In Wal-Mart Stores, Inc., the Texas appellate court concluded that there was no duty owed to a

plaintiff injured by ammunition sold by Wal-Mart. Id. However, the Texas appellate court’s inquiry

centered around “whether Wal-Mart acted unreasonably in selling ammunition to Salinas.” Id. at 131.

Concluding that Wal-Mart had no reason “to anticipate the negligent or careless use of a handgun,

shotgun, or rifle on the part of Salinas,” no action for negligence arose. Id. In the instant action, if

the Donald Morin plaintiffs can show that Officer Moore was aware of Ernest’s reckless tendencies,

then they can show a corresponding duty to act. Id. at 130 (“Negligence rests primarily upon the

existence of reason to anticipate injury and [the] failure to perform the duty arising on account of that

anticipation.” (citation omitted)).

“To establish proximate cause, a plaintiff must prove foreseeability and cause in fact.”

Ambrosio, 20 S.W.3d at 265. To establish foreseeability, a plaintiff must show that a defendant

should have anticipated the danger that his or her negligent act or omission created for others. Travis

v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). Foreseeability does not require a person to

anticipate the precise manner in which an injury will occur once he has created a dangerous situation

through his negligence. Id.; see also Ambrosio, 20 S.W.3d at 265 (“Foreseeability requires only that

the general danger, not the exact sequence of events that produced the harm, be foreseeable.”).

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 In Diggles v. Horwitz, the Texas Court of Appeals reversed a summary judgment granted in

favor of the defendant on a claim of negligence arising out of the sale of a weapon to a man with a

“history of mental problems,” who later used the gun to commit suicide. 765 S.W.2d 839, 840-41

(Tex. App. 1989). The court determined that there were issues of fact as to “whether selling the

gun and giving the ammunition to the deceased was negligence.” Id. at 841. Like Diggles, there are

allegations, which if proven true, could show that Officer Moore was negligent. We conclude that

if the Donald Morin plaintiffs can prove the allegations in their complaint, then Officer Moore should

have foreseen the dangerous situation he created. Moreover, if the Donald Morin plaintiffs’

allegations prove true, then Officer Moore’s actions were also the cause in fact of the Morins’

injuries. Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995) (explaining that

the test for cause in fact is whether the negligent act was a substantial factor in bringing about the

injury).4

Finally, it is undisputed that there are allegations in the complaint that satisfy the breach (e.g.,

failure to properly store the weapon) and damages prongs (e.g., physical injuries) of the negligence

claim.

ii) Officer Vasquez and Police Chief Schoepner’s Negligence

Officer Vasquez and Police Chief Schoepner cannot be liable under a theory of negligence

because their conduct could not have been the proximate cause of the Morins’ injuries. Ambrosio,

4
We recognize that under Texas law, ordinarily, intervening criminal conduct negates foreseeability. Cowart v.
Kmart Corp., 20 S.W.3d 779, 783 (Tex. App. 2000) (“The defendant negates the ordinary foreseeability element of
proximate cause when the defendant presents evidence that the plaintiff's injuries resulted from intervening criminal
conduct that rises to the level of a superseding cause based on factors like those in . . . the Restatement (Second) of
Torts.”). “However, when the third party's criminal conduct is a foreseeable result of the prior negligence, the criminal
act does not excuse the previous tortfeasor's liability.” Id.

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20 S.W.3d at 268 (“In order to be a legal cause of another's harm, it is not enough that the harm

would not have occurred had t he act or not been negligent. . . . The negligence must also be a

substantial factor in bringing about the plaintiff's harm. The word ‘substantial’ is used to denote the

fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men

to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of

responsibility, rather than in the so-called ‘philosophic sense,’ which includes every one of the great

number of events without which any happening would not have occurred.” (citation omitted)).

C. Prevention of the Crime at Issue

The Donald Morin plaintiffs also argue, without citation to authority, that the officers

breached their duty as Harlingen police officers to take the necessary steps to prevent the commission

of the crime at issue. The district court correctly dismissed the Morins’ claim that the officers and

the City were liable for the alleged failure of the officers to carry out their duty as police officers to

prevent Ernest from committing a crime. Crider v. United States, 885 F.2d 294, 297 (5th Cir. 1989)

(declining to impose a tort dut y on a police officer to protect the public from acts of a criminal

suspect).

D. The Dan Morin Plaintiffs’ Claim for Negligent Entrustment

We conclude that the district court erred in dismissing the Dan Morin plaintiffs negligent

entrustment claim against Officer Moore, but not against Police Chief Schoepner or Officer Vasquez,

for the reasons stated above. Although the Dan Morin plaintiffs did not allege that Ernest had

permission to use the gun, as the Donald Morin plaintiffs alleged, they did allege that the gun was

stored in Ernest’s room and that Ernest had access to the weapon. In Texas, for purposes of a

negligent entrustment claim, permission may be express or implied. Drooker v. Saeilo Motors, 756

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S.W.2d 394, 399 (Tex. App. 1988) (permission to drive a motorized vehicle for purposes of a

negligent entrustment claim may be express or implied); Firestone Tire & Rubber Co. v. Blacksher,

477 S.W.2d 338, 340 (Tex. App. 1972) (same). Reading the complaint broadly, as we are required

to do, Officer Moore’s permission can fairly be implied from his storage of the weapon in Ernest’s

bedroom, where Ernest had access to the weapon. See Dailey v. Quality School Plan, Inc., 380 F.2d

484, 486 (5th Cir. 1967).

E. The Dan Morin Plaintiffs’ Claim for Ordinary Negligence

The Dan Morin plaintiffs also argue that the district court erred in dismissing their negligence

claim because the magistrate judge’s report “ignored entirely” the claim. However, because they raise

this issue for the first time in their reply brief, it must be waived. Cavallini v. State Farm Mut. Auto

Ins. Co., 44 F.3d 256, 260 n.9 (5th Cir. 1995) ("[W]e do not consider issues raised for the first time

in a reply brief.").

F. The Morins’ Claim Against the City

The Morins claim that the City is liable alleging that the officers misused tangible property

while acting within the scope of their employment. Section 101.021 of the Texas Tort Claims Act

(“TTCA”) waives the sovereign immunity of governmental units for claims of “personal injury and

deat h caused by a condition or use of tangible personal or real property.” TEX. CIV. PRACTICE

MANAGEMENT. & REM. CODE ANN. § 101.021(2) (Vernon 1997). To state a claim under the TTCA

based on the use of non-defective tangible personal property, the plaintiff must allege “(1) that the

property was used or misused by a governmental employee acting within the scope of his or her

employment, and (2) that the use or misuse of the property was a contributing factor to the injury.

The negligence of the government employee must be the proximate cause of the injury and must

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involve a condition or use of tangible personal property under circumstances where there would be

private liability.” Gonzales v. City of El Paso, 978 S.W.2d 619, 623 (Tex. App. 1998) (citations

omitted).

We conclude that the Morins have stated a claim against the City. Because we have

determined that there are adequate allegations of negligent entrustment against Officer Moore, who

obtained the gun from the police department, and because the plaintiffs have alleged that Officer

Moore was acting within the scope of his employment, a claim under the TTCA has been properly

alleged against the City. Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169, 171 (Tex. 1989)

(finding that the state could be held liable for an employee’s negligent provision of swimming attire

that did not include life preserver). The fact that the acts that ultimately caused the injuries in this

case were undertaken by a third party does not relieve the City from liability for its negligence in

allowing officers, under its control, access to an assault rifle that was subsequently used in a

dangerous and violent manner. Tex. Dep’t of Mental Health & Mental Retardation v. McClain, 947

S.W.2d 694, 696-97 (Tex. App. 1997); see also Delaney v. Univ. of Houston, 835 S.W.2d 56, 60

(Tex. 1992) (finding that a university that failed to repair a dormitory door could be held liable even

though the rapist was not a university employee).

CONCLUSION

For the foregoing reasons, we AFFIRM as to the dismissal of the Morins’ § 1983 claims. We

REVERSE the dismissal of the following state-law claims: (1) the Donald Morin plaintiffs’ claim

against Officer Moore for negligent entrustment, (2) the Donald Morin plaintiffs’ claim against

Officer Moore for negligence, (3) the Dan Morin plaintiffs’ claim against Officer Moore for negligent

entrustment, and (4) the Morins’ claim against the City arising out of the TTCA. WE AFFIRM the

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dismissal of the remaining state-law claims. This case is REMANDED for further proceedings

consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

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