IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20039
JASON AGUILLARD; ET AL.,
Plaintiffs,
JASON AGUILLARD; O.L. HARRISON; WILLIAM A.
HARRISON; SANDRA HARRISON; GLORIA HAMILTON,
Plaintiffs-Appellees,
v.
JOSEPH K. MCGOWEN; ET AL.,
Defendants,
JOSEPH K. MCGOWEN; HARRIS COUNTY, TEXAS,
Defendants-Appellants.
*****************
O. L. HARRISON, Surviving Parent of Susan Harrison
White, Deceased; WILLIAM A. HARRISON, Surviving
Parent of Susan Harrison White, Deceased; GLORIA
HAMILTON, Individually and as next friend of Jason
Aguillard; SANDRA HARRISON, Individually and on
behalf of Estate of Susan Harrison White, Deceased,
Plaintiffs-Appellees,
v.
JOSEPH K. MCGOWEN; ET AL.,
Defendants,
JOSEPH K. MCGOWEN; HARRIS COUNTY, TEXAS,
Defendants-Appellants.
_______________________________
Appeals from the United States District Court
for the Southern District of Texas
_______________________________
March 15, 2000
Before BARKSDALE, BENAVIDES and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
Appellants Joseph K. McGowen (“McGowen”) and Harris County,
Texas (“the County”) appeal from a jury verdict holding them
liable for the wrongful death of Susan Harrison White (“White”)
pursuant to 42 U.S.C. § 1983. The district court, giving
preclusive effect to McGowen’s Texas state criminal conviction
for murder, forbade McGowen to present evidence on the issue of
excessive force. Because the state court of appeals reversed
McGowen’s criminal conviction on appeal, we vacate and remand for
a new trial on the merits. We further determine, pursuant to our
sufficiency of the evidence analysis, that insufficient evidence
supports the County’s liability, and we therefore reverse and
dismiss the County from the suit. Finally, we hold that White’s
sisters, appellees Sandra Harrison (“Harrison”) and Gloria
Hamilton (“Hamilton”) lack standing in their individual
capacities, and we thus dismiss them from the suit as individual
plaintiffs.
I. Factual and Procedural Background
McGowen began working as a deputy for the Harris County
Sheriff’s Department on October 4, 1990. Sometime thereafter,
the Sheriff’s Department assigned him to patrol the Olde Oakes
subdivision, where White, and her son, appellee Jason Aguillard
(“Aguillard”), lived. Though the details are unclear, McGowen
engaged in conduct during his patrol that White characterized as
sexual harassment.
2
To assess her options in dealing with McGowen, White and a
friend, Ray Valentine (“Valentine”), had dinner with another
Harris County Deputy Sheriff, Captain C.J. Harper (“Harper”).
Harper claims that he advised her that she could complain to the
Sheriff’s office; if that yielded no results, she could resort to
the Internal Affairs Division, the District Attorney or the FBI.
White did not register any formal complaint about McGowen.
Several months later, on August 22, 1992, White and
Valentine were having dinner at a restaurant when a friend of
Aguillard’s approached White and told her that McGowen was
arresting Aguillard. White and Valentine immediately went to the
site of the arrest and attempted to dissuade McGowen from
arresting Aguillard. When their pleas fell on deaf ears, White
yelled, “I’m going to get you, [McGowen,] you son of a bitch.”
McGowen had arrested Aguillard for possession of a stolen
credit card and selling a stolen gun to an undercover officer.
Instrumental in Aguillard’s capture was Michael Schaeffer
(“Schaeffer”), a childhood friend of Aguillard’s, who apparently
agreed to inform on Aguillard after McGowen pulled him over
multiple times for traffic violations. McGowen had also arrested
Schaeffer, but released him immediately.
Knowing of Schaeffer’s arrest and prompt release, White
called both Schaeffer’s aunt and mother, inquiring about his
whereabouts. White told Schaeffer’s aunt, “I think Michael is an
informant and in Houston an informant is a dead person.” White
repeated a similar statement to Schaeffer’s mother. Though
3
neither Schaeffer nor his mother took these statements seriously,
Schaeffer reported them to McGowen, who replied that White was a
“threat” and “needed” to go to jail.
Embellishing White’s statements to the point of fabrication,
McGowen obtained a warrant to arrest White for felony
retaliation. McGowen set out to execute this warrant on August
24, 1992, at around midnight. McGowen and two other deputies
woke White, who refused to open her front door. While McGowen
sought permission to enter the house forcibly, White called 911.
Having obtained the necessary approval, McGowen and the other
deputies broke down the back door. McGowen ran into White’s
bedroom, where, he claims, she was sitting on the bed, pointing a
gun at him. McGowen shot her three times, killing her.
McGowen was tried and convicted of murder; the trial court
sentenced him to 15 years imprisonment.
Aguillard, White’s parents, Hamilton and Harrison
(individually and as next friend of Aguillard and White’s estate
respectively) brought a wrongful death action on March 9, 1993.
During the trial, held from September 11-25, 1996, the district
court sua sponte raised the issue of collateral estoppel,
concluding that McGowen’s criminal conviction was a final
judgment which precluded McGowen from relitigating the issue of
excessive force. The jury returned a verdict in favor of
Aguillard in an amount exceeding $4 million.
McGowen and the County timely filed their appeal.
4
II. Standards of Review
We review a district court’s decision to apply collateral
estoppel for an abuse of discretion. See Winters v. Diamond
Shamrock Chem. Co., 149 F.3d 387, 391 (5th Cir. 1998).
We apply de novo review to a district court’s denial of a
motion for judgment as a matter of law. See Rutherford v. Harris
County, Texas, 197 F.3d 173, 178 (5th Cir. 1999). “In ruling on
a rule 50 motion based upon sufficiency of the evidence, we
‘consider all of the evidence–not just that evidence which
supports the non-mover’s case–but in the light and with all
reasonable inferences most favorable to the party opposed to the
motion.’” Information Communication Corp. v. Unisys Corp., 181
F.3d 629, 633 (5th Cir. 1999) (quoting Boeing Co. v. Shipman, 411
F.2d 365, 374 (5th Cir. 1969) (en banc)). The district court
properly grants a Rule 50 motion for judgment as a matter of law
only where the facts and inferences indicate a particular outcome
so strenuously that reasonable minds could not disagree. See
Rutherford, 197 F.3d at 179.
III. Collateral Estoppel
McGowen and the County argue that, because the 14th Court of
Appeals, the state court reviewing McGowen’s murder conviction,
reversed it, the conviction is not a “final judgment” sufficient
to exert a preclusive effect. Therefore, they claim, the
district court denied McGowen a fair trial by barring his
defense, and they urge us therefore to vacate and remand.
Aguillard retorts that the 14th Court of Appeals reversed
5
McGowen’s conviction for procedural reasons and specifically
found that the evidence supported the verdict. A verdict
reversed on a “technicality” for which sufficient evidence
exists, Aguillard argues, should retain its preclusive impact.
We do not agree with Aguillard’s argument that the verdict
in the criminal case retains its preclusive effect. The 14th
Court of Appeals undeniably reversed McGowen’s conviction,1 which
unquestionably constituted the final judgment on which the lower
court based its determination of collateral estoppel. A
conviction overturned on appeal cannot constitute a final
judgment for purposes of collateral estoppel. See J.J. Gregory
Gourmet Servs., Inc. v. Antone’s Import Co., 927 S.W.2d 31, 34
(Tex. App.–Houston 1995, no writ) (“[W]hen the appellate court
reverses [a] judgment, the finality necessary for claim or issue
preclusion is eliminated.”); Lulirama Ltd., Inc. v. Axcess
Broadcast Servs., Inc., 128 F.3d 872, 876 n.2 (5th Cir. 1997).2
Aguillard’s argument that a reversed conviction still exerts
1
The 14th Court of Appeals twice reversed McGowen’s conviction. The
first reversal occurred on April 10, 1997. The Texas Court of Criminal
Appeals, however, vacated that judgment on October 28, 1998 and remanded to
the 14th Court of Appeals, which again reversed McGowen’s conviction on
February 3, 2000.
It is anticipated that the State of Texas will seek discretionary review
of the 14th Court of Appeals’s decision with the Texas Court of Criminal
Appeals.
2
Even if the State were now to appeal the February 3, 2000 reversal of
McGowen’s conviction, during the pendency of the appeal, the reversed
conviction cannot exert preclusive effect. See Lulirama, 128 F.3d at 876 n.2
(“The fact that an appeal is pending in a higher appellate court does not
restore the preclusive effects of the reversed judgment.” (quoting 18 Charles
Alan Wright, et al., Federal Practice and Procedure § 4432, 302 (1981)).
For this reason, on February 4, 1998, the date on which the panel heard
oral argument in this matter, McGowen’s conviction exerted no preclusive
effect–despite the pendency of its appeal before the Texas Court of Criminal
Appeals–because the 14th Court of Appeals had already reversed it.
6
a preclusive effect is simply incorrect, based, as it is, on a
misreading of Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6
(Tex. 1986), which holds only that a judgment retains its
preclusive impact while on appeal. See id. (“[W]e . . . hold
that a judgment is final for purposes of issue and claim
preclusion ‘despite the taking of an appeal unless what is called
an appeal actually consists of a trial de novo.’” (quoting
Restatement (Second) of Judgments § 13 cmt. f)). Scurlock does
not involve a situation in which the judgment given preclusive
effect has been reversed on appeal, as does the present
circumstance. Indeed, Scurlock even states that “[a] judgment in
a second case based on the preclusive effects of a prior judgment
should not stand if the judgment is reversed.” Id. We thus hold
that Aguillard’s arguments in favor of granting preclusive effect
to McGowen’s criminal conviction for murder are wholly without
merit.
Because the practical import of the lower court’s
application of collateral estoppel was to deny McGowen the
opportunity to present a defense to the complaint, we see no
viable course of action but to vacate and remand for a new trial
on the merits. Without a valid determination of the excessive
force claim, neither the judgment against McGowen nor the County
can be sustained.
IV. Sufficiency of the Evidence
The County argues that the evidence is not sufficient to
support a finding that it was deliberately indifferent to White’s
7
right to be free from excessive force when it hired McGowen
without discovering confidential information located in his file
with the Houston Police Department, or without following up on
the leads suggested by his polygraph test.
Aguillard naturally insists that the evidence is to the
contrary.
Board of County Comm’rs of Bryan County, Oklahoma v. Brown,
520 U.S. 397 (1997) governs our inquiry into the sufficiency of
the evidence. “Only where adequate scrutiny of an applicant’s
background would lead a reasonable policymaker to conclude that
the plainly obvious consequence of the [hiring] decision . . .
would be the deprivation of a third party’s federally protected
right can the official’s failure to adequately scrutinize the
applicant’s background constitute ‘deliberate indifference.’” Id.
at 411. Any finding of culpability “must depend on a finding
that this officer was likely to inflict the particular injury
suffered by the plaintiff. The connection between the background
of the particular applicant and the specific constitutional
violation alleged must be strong.” Id. at 412.
The specific facts involved in Bryan County are extremely
instructive. There, Reserve Deputy Stacy Burns (“Burns”) stood
convicted of using excessive force when he wrested a woman from a
car, badly damaging her knees in the process. Burns, who was the
great-nephew of Sheriff Moore, Bryan County’s Sheriff and policy-
maker, had a criminal record that included arrests for driving
while intoxicated, driving with a suspended license, resisting
8
arrest, public drunkenness, and a conviction for assault and
battery. Looking at this record, the Supreme Court held that
Sheriff Moore’s failure to examine Burns’s criminal record did
not “reflect[] a conscious disregard for a high risk that Burns
would use excessive force in violation of respondent’s federally
protected right.” Id. at 415-16.
Here, the record is far less suggestive of McGowen
committing homicide than the record in Bryan County was of Burns
committing battery. The record shows that McGowen threatened the
mother of a juvenile with arrest, that he meddled in this
mother’s supervision of the child while he was off duty, and that
the mother ultimately hired an attorney and threatened to obtain
a restraining order against him. Colleagues at the Houston
Police Department reported that McGowen wanted to “ride where the
women were,” and a female colleague stated that she did not want
to ride with him under any circumstances. The record also
discloses a report that in March 1990, McGowen assaulted and
pistol-whipped a teenage boy who was driving his car around
McGowen’s apartment complex. Significantly, McGowen was neither
arrested for nor convicted of the alleged assault. But while all
of this may indicate that McGowen was “an extremely poor
candidate” for the County’s police force, id. at 414, the record
shows not one shred of solid evidence foreshadowing McGowen’s
tragic killing of White. McGowen had never been formally
disciplined, and his informal discipline record included only the
infractions of using the police radio for broadcasting personal
9
messages and refusing to convey information to one party in a
vehicular accident. McGowen had never wrongfully shot anyone
before, nor did his record reveal him to be likely to use
excessive force in general or possess a trigger-happy nature in
particular. Certainly, the evidence of deliberate indifference
in this case falls short of the quantum and quality of evidence
presented in Bryan County, which the Supreme Court determined to
be insufficient. In short, even when viewing the evidence, as we
must, in the light most favorable to Aguillard, the record is
bereft of evidence sufficient to impose liability on the County
for wrongfully hiring McGowen. While the County may have been
negligent in its employment decision, the magnitude of its error
does not reach constitutional cognizance. We therefore hold that
the district court erred in denying the County’s Rule 50 motion
for judgment as a matter of law, and we dismiss the County from
this case.
V. Remaining Issues
Because our rulings on the collateral estoppel and Rule 50
issues constrain us to vacate and remand and dismiss the County,
we need not address all of the remaining issues the parties
raise, save with respect to the following: the question of
whether White’s sisters have standing in their individual
capacities to bring a wrongful death suit.
McGowen and the County assert that White’s sisters, Harrison
and Hamilton, lack standing to bring this suit. Harrison and
Hamilton respond by asking this court to acknowledge their right
10
to bring this suit.
Pursuant to 42 U.S.C. § 1988, we must look to the state
wrongful death statute to determine who has standing to bring a
wrongful death claim under § 1983. The Texas Wrongful Death and
Survival Statutes, Tex. Civ. Prac. & Rem. Code §§ 71.004 and
71.021, set forth the parties who can bring suit. The Estate of
Susan White (“the Estate”) has standing pursuant to the Survival
Statute, § 71.021, and Harrison, as White’s heir and the legal
representative of the Estate, has standing to prosecute the
action. See Garcia v. Caremark, Inc., 921 S.W.2d 417, 421 (Tex.
App.–Corpus Christi 1996, reh’g overruled); Handley v. City of
Seagoville, Texas, 798 F. Supp. 1267, 1270 (N.D. Tex. 1992).
Moreover, Hamilton, as an heir and interested party in the suit,
may act as next friend for Aguillard. See International & G.N.
Ry. Co. v. Kuehn, 8 S.W. 484, 485-86 (Tex. 1888).
Thus, the controversy focuses on whether Harrison and
Hamilton have standing in their individual capacities. Neither
Harrison nor Hamilton can cite any law from this Circuit
supporting their bid for standing. As siblings are, based on the
plain language of the statutes, plainly not within the scope of
the Texas Wrongful Death and Survivor Statutes, we decline to
permit Harrison and Hamilton to bring this action in their
individual capacities. Upon retrial, then, Harrison and Hamilton
must be dismissed as individual parties.
VI. Conclusion
We hold that a conviction reversed on appeal cannot function
11
as a final judgment supporting the application of collateral
estoppel. We therefore vacate and remand for a full trial on the
merits.
We further hold that the evidence is insufficient to impose
liability upon the County, and that the district court erred in
refusing the County’s motion for judgment as a matter of law. We
therefore reverse and dismiss the County from the suit.
Finally, we hold that Harrison and Hamilton lack standing in
their individual capacities. The district court erred in denying
the County’s motion to dismiss them as individual parties, and we
therefore dismiss them from the suit in their individual
capacities.
VACATED, REVERSED and REMANDED.
12