IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 93-2453
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SHELIA MARIE BROTHERS, Individually
and as Next Friend of Minor Children,
BRIENT BROTHERS, ROLAND BROTHERS, III,
and DANRICA BROTHERS; and ROLAND J. BROTHERS, Sr.,
Plaintiffs-Appellants,
VERSUS
JOHNNY KLEVENHAGEN,
in His Official Capacity as
Sheriff of Harris County, Texas,
and HARRIS COUNTY, TEXAS,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
(August 1, 1994)
Before GARWOOD, SMITH, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Plaintiffs appeal a summary judgment in their excessive force
suit against Harris County, Texas, and its sheriff. Finding no
reversible error, we affirm.
I.
On November 5, 1988, Roland Brothers, Jr., a/k/a Michael Reed,
was arrested by the Jersey Village Police Department for auto
theft. Brothers spent a few hours in a cell at the Jersey Village
police facility. Because there were outstanding felony and
misdemeanor warrants for his arrest, the Jersey Village police
turned Brothers over to Harris County sheriff's deputies Barry Rizk
and Robert Nichols, who transported Brothers to the Harris County
Jail. They handcuffed Brothers, restrained his legs, and placed
him in the rear of the sheriff's vehicle.
When they arrived at the Harris County Jail, the deputies
drove into the "sallyport" area behind the jail.1 As the deputies
exited the car and proceeded to the area where they were required
to check their weapons, they noticed that Brothers somehow had
managed to remove the handcuffs and leg restraints and was running
from the car toward the entrance to the sallyport that they had
just entered. The automatic door to the sallyport entrance was in
the process of coming down.
Fearing that Brothers would escape, the deputies several times
shouted at him to stop. As Brothers attempted to crawl under the
automatic door, the deputies drew their weapons and fired twelve
times. Brothers died from gunshot wounds.
Family members filed suit in state court pursuant to the Texas
Wrongful Death Statute and 42 U.S.C. § 1983 against the county,
1
The "sallyport" is a secure area at the rear of the jail where
incoming prisoners are unloaded and escorted into the building for booking.
2
against Johnny Klevenhagen, in his official capacity as sheriff,
and against Rizk and Nichols. The defendants removed the action to
federal court, and Rizk and Nichols were voluntarily dismissed by
plaintiffs.
The parties filed cross-motions for summary judgment. Both
deputies testified in depositions that they shot Brothers in order
to prevent his escape. They knew that he was unarmed, and they had
no reason to believe that he was a danger to them or anyone else.
It is undisputed that the deputies acted in accordance with the
official policy of the sheriff's department, based upon TEX. PENAL
CODE § 9.52, which authorizes the use of deadly force to prevent
escape from the jail without regard to whether the person is
dangerous. In granting summary judgment for the defendants, the
district court held that the evidence supported the conclusion that
the force used under the circumstances was necessary to prevent
Brothers's escape and was not unconstitutionally unreasonable.
II.
A.
Plaintiffs contend that the district court erred in granting
summary judgment to defendants on their § 1983 claim. We review a
grant of summary judgment de novo. Hanks v. Transcontinental Gas
Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992). Summary
judgment is appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
3
material fact and that the moving party is entitled to a judgment
as a matter of law." FED. R. CIV. P. 56(c). The party seeking
summary judgment carries the burden of demonstrating that there is
an absence of evidence to support the non-moving party's case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After a proper
motion for summary judgment is made, the non-movant must set forth
specific facts showing that there is a genuine issue for trial.
Hanks, 953 F.2d at 997.
We begin our determination by consulting the applicable
substantive law to determine what facts and issues are material.
King v. Chide, 974 F.2d 653, 655-56 (5th Cir. 1992). We then
review the evidence relating to those issues, viewing the facts and
inferences in the light most favorable to the non-movant. Id. If
the non-movant sets forth specific facts in support of allegations
essential to his claim, a genuine issue is presented. Celotex, 477
U.S. at 327.
B.
The threshold issue in this case is which constitutional
standard for excessive force applies to an individual escaping from
custody during transport from one holding cell to another. The
plaintiffs argue that the Fourth Amendment governs this case and
that the Supreme Court's decision in Tennessee v. Garner, 471
U.S. 1 (1985), compels a judgment in their favor.
In Garner, the Court held that the use of deadly force to
prevent a felony suspect's escape was unconstitutional unless the
4
officer had probable cause to believe that the suspect posed a
significant threat of death or serious physical injury to the
officer or others. Id. at 3. The Court held a Tennessee statute
unconstitutional to the extent it authorized such use of deadly
force. Id. at 11. The suspect in Garner was encountered in the
backyard of a house that officers were investigating for a reported
burglary. The officer shot the suspect as he attempted to escape
over a fence. The officer stated that he was reasonably sure that
the suspect was not armed and that he shot him to prevent his
escape. Id. at 3-4.
The Court stated that apprehension by the use of deadly force
was a seizure subject to the reasonableness requirement of the
Fourth Amendment, under which a court must balance the nature and
quality of the intrusion on the individual's Fourth Amendment
interests against the importance of the governmental interests
alleged to justify the intrusion. Id. at 7-8.2
This argument would be pursuasive had Brothers been a suspect,
but at the time of his attempted escape he was in custody. A
pretrial detainee receives the protection of the Due Process Clause
2
We note that Garner cited with approval the Model Penal Code, which
treats prison escape attempts differently from the apprehension of suspects.
Compare MODEL PENAL CODE § 3.07(2)(b) (Proposed Official Draft 1962) ("The use of
deadly force [to effect an arrest] is not justifiable . . . unless . . . the
actor believes that . . . there is a substantial risk that the person to be
arrested will cause death or serious bodily injury if his apprehension is
delayed.") with id. § 3.07(3) ("[A] guard or other person authorized to act as
a peace officer is justified in using any force, including deadly force, that
he believes to be immediately necessary to prevent the escape of a person from
a jail, prison, or other institution for the detention of persons charged with
or convicted of a crime.") and id. § 3.07 explanatory note ("The public
interest in prevention of escape by persons lawfully in the custody of penal
institutions is regarded by the provision as sufficient to warrant the use of
deadly force where the custodian or guard believes that only such force can
prevent the escape.").
5
of the Fourteenth Amendment. Valencia v. Wiggins, 981 F.2d 1440,
1443-45 (5th Cir.), cert. denied, 113 S. Ct. 2998 (1993). Under
Valencia, the appropriate inquiry is "whether the measure taken
inflicted unnecessary and wanton pain and suffering" and "`whether
force was applied in a good faith effort to maintain or restore
discipline, or maliciously and sadistically for the very purpose of
causing harm.'" Id. at 1446 (citing Hudson v. McMillian, 112 S.
Ct. 995, 998 (1992)).
In Graham v. Connor, 490 U.S. 386, 395 n.10 (1989), the Court
stated that it "ha[d] not resolved the question whether the Fourth
Amendment continues to provide individuals with protection against
the deliberate use of excessive force beyond the point at which
arrest ends and pretrial detention begins."3 But Valencia is
unambiguous as to when the protection of the Fourth Amendment ends:
We do not believe that the Fourth Amendment provides an
appropriate constitutional basis for protecting against
deliberate official uses of force occurring . . . after
the incidents of arrest are completed, after the plain-
tiff has been released from the arresting officer's
custody, and after the plaintiff has been in detention
awaiting trial for a significant period of time.
Valencia, 981 F.2d at 1443-44.
The court cited three reasons for reaching this conclusion.
First, the text of the Fourth Amendment )) prohibiting unreasonable
"seizures" )) does not support its application to a post-arrest
3
Plaintiffs contend that the Court reached this issue in Albright v.
Oliver, 114 S. Ct. 807 (1994). We find Albright inapposite for two reasons.
First, Albright was an individual complaining of an arrest and prosecution
without probable cause. That scenario is far different from a pretrial
detainee escaping from custody. Second, that portion of Albright that
suggests that the Fourth Amendment applies to pretrial deprivations of liberty
did not receive the support of a majority of the Justices. See id. at 813.
Moreover, as Albright did not raise a Fourth Amendment claim, the discussion
of that amendment is plainly dictum. See id.
6
encounter. Second, the Supreme Court has refused to apply the
Fourth Amendment to protect inmates after incarceration. And
third, Graham and Bell v. Wolfish, 441 U.S. 520 (1979) (refusing to
concede that Fourth Amendment applied to pretrial detainee
subjected to body cavity search), dictate that the Due Process
Clause is the appropriate constitutional basis for pretrial
detainee excessive force suits.
Applying the Valencia analysis to the facts of this case, we
conclude that Brothers was a pretrial detainee. First, the
incidents of arrest were complete. Second, Brothers was released
from the arresting officer's custody. And third, Brothers already
had been in detention.
Valencia indicates that the Fourth Amendment applies more
appropriately to the actual incident of arrest. Although the
protection may extend beyond the time of initial apprehension, see
981 F.2d at 1444 n.10, Brothers had been arrested earlier in the
day, had been processed by the Jersey Village Police Department,
and had spent several hours in jail. He was being transported to
the county jail, his hands cuffed and his legs restrained. It is
difficult to imagine how Brothers could not be considered a
detainee at that point. If the incident had occurred several hours
earlier, while Brothers was a resident of the Jersey Village Police
Department jail, he surely would have been considered a pretrial
detainee. The fact that he was being transported to the Harris
County jail does not change his status.
7
Plaintiffs argue that the apprehension of Brothers paralleled
the apprehension of the suspect in Garner. According to this
logic, however, anytime a detainee escapes, requiring re-apprehen-
sion by law enforcement officials, the Fourth Amendment comes back
into play because the individual is "seized." See id. at 1444
("[T]he concept of `seizure' in the Fourth Amendment is not so
capacious or elastic as to cover pretrial detention three weeks
after the initial arrest . . . .").4
We reject this proposition. Once an individual has been
arrested and is placed into police custody, and surely after the
arresting officer has transferred the individual to a jail cell,
the individual becomes a pretrial detainee, protected against
excessive force by the Due Process Clause. Until the detainee is
permanently released from custody, this status never reverts back
to that of mere suspect.5 Any other conclusion would lead to the
anomalous result of pretrial escapees' receiving greater protection
than those detainees who peacefully remain in their cells. Thus,
the force used against Brothers should be judged under the Due
Process Clause. See Bender v. Brumley, 1 F.3d 271 (5th Cir. 1993)
(applying Due Process Clause analysis to pretrial detainee taken
from his cell the same day as his arrest and allegedly beaten).
4
The Fourth Amendment prohibits unreasonable seizures. Of course,
shooting an escapee is a seizure; it stops his forward movement and terminates
his freedom. But pretrial detainees lose many individual liberties and do not
receive the full protection of the Fourth Amendment.
5
Of course, the pretrial detainee may eventually become an inmate,
receiving the protection of the Eighth Amendment.
8
9
C.
Plaintiffs contend that even if Brothers was a pretrial
detainee under Valencia, various Supreme Court cases dictate that
the Fourth Amendment applies to searches and seizures of prisoners
and pretrial detainees. In support of this position, plaintiffs
rely primarily upon Bell v. Wolfish, 441 U.S. 520 (1979). They
argue that this case, presumably applying certain Fourth Amendment
protections to prisoners and pretrial detainees, justifies
application of the Fourth Amendment to the seizure of an escaping
pretrial detainee.
Plaintiffs' reliance upon Wolfish is unavailing. In Wolfish,
the Court stated: "[A]ssuming for present purposes that inmates,
both convicted prisoners and pretrial detainees, retain some Fourth
Amendment rights upon commitment to a correctional facility, we
nonetheless conclude that these searches do not violate that
Amendment." Wolfish, 441 U.S. at 558 (citations omitted). Thus,
the Court refused to concede that the Fourth Amendment applied to
such inmates and concluded that no protection would be afforded
even if it did apply.6
6
Plaintiffs ignore Hudson v. Palmer, 468 U.S. 517, 526 (1983), in which
the Court stated: "[T]he Fourth Amendment proscription against unreasonable
searches does not apply within the confines of the prison cell." Moreover, in
Whitley v. Albers, 475 U.S. 312 (1985), the Court applied an Eighth Amendment
analysis to the claim of an inmate shot by a guard during a prison riot.
Thus, we can safely conclude that the Court has imposed significant limita-
tions on the reach of the Fourth Amendment to pretrial detainees.
10
D.
11
Under the due process standard Valencia applies to pretrial
detainees,7 the prevention of the escape was not unconstitutional.
The sheriff's department policy is designed "in a good faith effort
to maintain or restore discipline" and not "maliciously and
sadistically for the very purpose of causing harm." Brothers had
been arrested for auto theft and had previously escaped from
custody. The deputies shouted for Brothers to stop and only fired
upon him as he ignored their warnings and crawled under the closing
door. They acted quickly and decisively.
Furthermore, the county policy allows deadly force only when
immediately necessary to prevent escape. It is apparent that the
deputies fired at Brothers only as a last resort to prevent the
escape. It is also apparent that if they had not fired upon him,
Brothers would have escaped. The deputies did not act maliciously
or sadistically or in an attempt to inflict punishment, but rather
followed a constitutional policy that permits deadly force only to
prevent an immediate escape. The plaintiffs failed to adduce
summary judgment evidence to the contrary.
III.
The plaintiffs also assert that the county's failure to train
its deputies concerning the constitutional limitations on the use
of force amounted to deliberate indifference to constitutional
7
We note that the district court incorrectly applied a Fourth Amendment
analysis. Nevertheless, we may affirm summary judgment on grounds different
from those stated by the district court. See, e.g., Louisiana Land & Explora-
tion Co. v. Amoco Prod. Co., 878 F.2d 852, 854 (5th Cir. 1989).
12
rights. The plaintiffs fail to adduce any evidence of this alleged
failure or its connection to the prevention of Brothers's escape.
AFFIRMED.
13
CARL E. STEWART, Circuit Judge, dissenting:
I agree with the majority's conclusion that the threshold
issue to be decided in this case is the standard of law that should
be applied to examine pretrial excessive force claims, however I
disagree with the majority's conclusion that the Due Process Clause
and not the Fourth Amendment provides the applicable standard of
law. The majority relies on Valencia v. Wiggins, 981 F.2d 1440
(5th Cir. 1993), cert. denied, ___ U.S. ___, 113 S.Ct. 2998, 125
L.Ed.2d 691 (1993), to conclude that Brothers was not protected by
the Fourth Amendment; however, I do not share my colleagues'
confidence that Valencia is dispositive of the instant issue.
In Valencia, this Court held that the Due Process Clause and
not the Fourth Amendment provided the applicable legal standard to
adjudicate claims of excessive force. Valencia, 981 F.2d at 1445.
However, the Valencia court rooted its decision primarily in the
fact that the plaintiff had been in custody for three weeks before
the disputed incident, id at 1444, a fact not emphasized by the
majority opinion in Brothers. Noting that the Supreme Court had
been reluctant to extend Fourth Amendment protection beyond the
initial arrest, this Court concluded that when a suspect has been
in custody for an extended period of time, the Due Process Clause
and not the Fourth Amendment provided the applicable constitutional
standard to analyze claims of excessive force. Id at 1144-45.8
8
As observed in Valencia, other Circuits have concluded that
the Fourth Amendment standard applies to various post-arrest,
pre-arraignment custodial settings. See Valencia, 981 F.2d at
1444, footnotes 9-12 and the accompanying text.
14
However, the crucial factor in the Valencia analysis--the extended
period of time between the arrest and the challenged use of force--
is absent in this case. Thus, Valencia does not apply to the
present case where Brothers was killed shortly after his arrest.
In my view, Albright v. Oliver, ___ U.S. ___, 114 S.Ct. 807,
127 L.Ed.2d 114 (1994) resolved the doubts expressed in Valencia
about extending the protection of the Fourth Amendment beyond the
time of arrest. In Albright, the petitioner claimed that his Due
Process rights had been violated when the State of Illinois
initiated criminal proceedings against him for committing non-
criminal acts. The petitioner had surrendered himself when he
learned of an outstanding warrant for his arrest, and was condi-
tionally released after posting bond. He deliberately decided to
pursue his claim before the U. S. Supreme Court only under the Due
Process Clause and did not pursue a possible Fourth Amendment
violation. A plurality of the Supreme Court held that his claim
was governed exclusively by the Fourth Amendment and that he could
not recover for a violation of his substantive Due Process rights.
Id at 813. Justice Souter concurred, but did not join, in the
plurality opinion, noting that ". . . none of petitioner's alleged
injuries has been treated by the Courts of Appeals as beyond the
ambit of compensability under the general rule of 42 U.S.C. § 1983
liability for a seizure unlawful under Fourth Amendment standards
. . .", Id at 821, and that harms such as those claimed by the
petitioner "have naturally coalesced under the Fourth Amendment,
15
since the injuries usually occur only after an arrest or other
Fourth Amendment seizure . . .". Id at 822.
In Albright, the petitioner had been "seized" by his arrest
and his conditional release after posting bond. Five members of
the Court agreed that a Fourth Amendment analysis, and not a Due
Process Clause analysis, applied to the petitioner's 42 U.S.C. §
1983 claims. See the plurality opinion, id, along with the
concurrence by Justice Souter, 114 S.Ct. at 819-822. Thus, the
Supreme Court has extended the protection of the Fourth Amendment
beyond the time of arrest or the initial act of restraining an
individual's liberty. I read Albright as pronouncing precisely the
scope of Fourth Amendment protection that the majority denies in
the instant case. As stated in Albright, id, at 813 (emphasis
added),
The Framers considered the matter of pretrial depriva-
tions of liberty and drafted the Fourth Amendment to
address it.
This observation provides a greater basis for concluding that the
Fourth Amendment is the applicable standard of analysis in this
case than Valencia does for concluding that the Fourth Amendment
does not apply. The concern expressed in Valencia, regarding
whether Fourth Amendment protection extends beyond the initial
arrest, has been answered by the Supreme Court in the affirmative.
In Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85
L.Ed.2d 1 (1985) (emphasis added), the Supreme Court stated that,
Whenever an officer restrains the freedom of a person
to walk away, he has seized that person. United States
v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). While it is
not always clear just when minimal police interference
16
becomes a seizure, see United States v. Mendenhall, 446
U.S. 544 (1980), there can be no question that apprehen-
sion by the use of deadly force is a seizure subject to
the reasonableness requirement of the Fourth Amendment.
Accordingly, the Fourth Amendment is applicable to the instant
case.
Garner, id, compels a judgment in Brothers' favor regarding
the constitutionality of the Harris County policy. In Garner,
pursuant to a statute that allowed the use of deadly force to
apprehend all felony suspects, a police officer had shot a burglary
suspect as he tried to escape. The Supreme Court determined that
the Tennessee statute was unconstitutional as applied to unarmed,
nondangerous fleeing suspects because it violated the Fourth
Amendment's prohibition against unreasonable searches and seizures.
Id at 11. Accordingly, the Court held the Tennessee statue
"invalid insofar as it purported to give [the officer] the
authority to act as he did". Id at 22. In so holding, the Court
stated that:
[T]he use of deadly force to prevent the escape of all
felony suspects, whatever the circumstances, is constitu-
tionally unreasonable. It is not better that all felony
suspects die than that they escape. Where the suspect
poses no immediate threat to the officer and no threat to
others, the harm resulting from failing to apprehend him
does not justify the use of deadly force to do so. Id at
11. (emphasis added).
This principle is applicable to the case before us now.
Each of the deputies stated in his deposition that they had no
reason to think that Brothers would pose a threat to them or
17
anybody else.9 Both deputies also testified that they did not
think that he was a danger to the outside community. Given the
uncontradicted testimony that Brothers posed no danger beyond the
risk of his escape, the Harris County policy which allowed this use
of deadly force is unconstitutional as applied to Brothers because
it violated the Fourth Amendment prohibition against an unreason-
able seizure. Under Tennessee v. Garner, supra, this policy can
provide no shield from liability for the defendants.
For the foregoing reasons, I respectfully dissent.
9
The record reflects that one of the officers considered all
escapees to be dangerous and therefore considered Brothers to be
dangerous because he was an escapee. When asked whether he had
any reason to believe that Brothers was dangerous, he replied
"No."
18