NEW ORLEANS – The U.S. Court of Appeals for the Fifth Circuit has affirmed the dismissal of a Harris County, Texas sheriff’s deputy charged with deliberate indifference, in a suit connected to the sexual assault of a Houston woman.
Fifth Circuit judges Rhesa Barksdale, Leslie H. Southwick and James E. Graves Jr. upheld the U.S. District Court for the Southern District of Texas’s dismissal of Mark Cannon through a granting of qualified immunity, in Shanita Terrell’s suit against Harris County, Texas, Sheriff’s Office Deputies Michael Hines and Mark Cannon, and their supervisor, Sheriff Ed Gonzalez.
Graves wrote the Court’s opinion in this case.
“Terrell spent the evening of Feb. 23, 2020, at The Address, a bar in Houston where her cousin works. When she left, ‘there was visibly and audibly something wrong with her and she was not in her usual state of mind.’ At some point, Terrell encountered off-duty HCSO Deputies Michael Hines and Mark Cannon. Hines and Cannon worked side jobs at The Address and were in HCSO uniforms. HCSO policy allows deputies to wear their uniforms and use HCSO equipment and patrol vehicles while working off-duty side jobs. The deputies ordered Terrell into Hines’s patrol vehicle, telling her they were going to take her home. Terrell initially protested but ultimately got in, believing she was either under arrest or would be arrested if she continued to resist. The complaint contains no allegations as to what happened immediately afterward,” Graves stated.
“Terrell awoke the next morning at home and felt pain in her vaginal area. She went to the hospital, where a rape kit was administered. A DNA test revealed that semen in her underwear matched Deputy Hines. Terrell had no memory of having sex with him. She later came to suspect that someone had slipped Rohypnol, also known as ‘roofies,’ into her drink at The Address. Roofies are known to be used by sexual predators to incapacitate their victims. In August 2021, 18 months after the incident, Hines was charged with sexually assaulting Terrell.”
Terrell sued Cannon, Hines, Gonzalez, and Harris County under 42 U.S.C. Section 1983. Hines was served but never responded, and Terrell later voluntarily dismissed her claims against him.
Terrell’s first amended complaint alleged that Cannon violated her Fourth and Fourteenth Amendment rights, by forcing her into Hines’s patrol vehicle. She alleged that Gonzalez was liable as the deputies’ supervisor and that Harris County was liable for inadequately training the deputies.
The District Court dismissed the first amended complaint for failing to state a claim, leading Terrell to file a second amended complaint. However, the District Court dismissed it with prejudice, concluding that Terrell’s allegations were still deficient. As a result, Terrell appealed to the Fifth Circuit.
“We may address either qualified immunity prong first, and we can affirm the District Court on either if Terrell fails to make the required showing. Terrell contends that Cannon’s actions were clearly established as unconstitutional under the Fourth Amendment. The argument goes to her prong-two qualified immunity burden. So, we start there. To satisfy prong two, Terrell must point to legal precedent that puts the wrongfulness of Cannon’s actions ‘beyond debate.’ Such precedent must speak to ‘the violative nature of [the] particular conduct’ and ‘the specific context of the case,” Graves said.
“Terrell fails to point to any precedent meeting that standard. She first points to Gomez v. Galman. But Gomez was decided in November 2021. It could not have clearly established the unconstitutionality of Cannon’s actions, which allegedly occurred in February 2020. To a lesser extent, she points to United States v. Sharpe and Katz v. United States. Sharpe concerned a prolonged detention during an investigatory traffic stop. Katz concerned surveillance of calls made from a public telephone booth. Those cases certainly set parameters for identifying a Fourth Amendment violation. But neither establishes the ‘violative nature’ of Cannon’s ‘particular conduct’ or speaks to the ‘specific context’ of Terrell’s allegations.”
Graves added that, alternatively, Terrell argues that “Cannon’s actions were so obviously unconstitutional, no precedent is required…the Supreme Court has denied qualified immunity without requiring precedent in some cases that concern obvious violations, albeit rarely.”
“But the allegations that Terrell offers in support of her obviousness argument are not adequate to sustain it. She points first to her allegation that off-duty officers are ‘conceptually considered private actors operating private vehicles’ because they are not monitored or required to report their activities to a dispatcher. ‘There [is] no set of circumstances,’ Terrell argues, ‘in which forcing a person against their will into a private actor’s private vehicle would be a reasonable means of conducting a Fourth Amendment seizure…’ Terrell’s claim that off-duty deputies should be treated the same as private citizens is, at bottom, a legal argument, not a factual claim. We cannot therefore accept it as true. Nor does she provide authority to support it as a legal argument. If anything, she establishes the opposite: That Hines and Cannon acted under color of law during the encounter because they were adorned with, and wielded, law enforcement authority. We cannot construe their actions as if they were private actors,” Graves said.
“Terrell also points to her allegation that Cannon’s ‘real motive may have been to allow sexual assault of Ms. Terrell by Deputy Hines.’ That is a factual claim, but a purely speculative one, and thus we lend it no credence. In sum, Terrell failed to show a clearly established violation of her rights. The District Court correctly granted qualified immunity to Cannon.”
Graves and his colleagues similarly found that Terrell’s supervisory liability claims against Gonzalez fared no better.
“Terrell’s allegations against Gonzalez are also sparse. She alleges, first, that Gonzalez was aware that Hines was arrested for sexually assaulting a child in 2018 and that Gonzalez ‘does not investigate and/or discipline officers alleged of crimes if they are no-billed by a Grand Jury including sexual assault of a minor.’ To allege deliberate indifference, Terrell’s allegations must allow us to reasonably infer ‘a pattern of similar violations arising from [supervision] that is so clearly inadequate as to be obviously likely to result in a constitutional violation.’ She alleges one related incident, not a pattern. And while a single incident may give rise to an inference of deliberate indifference, that is only the case when ‘the highly predictable consequence of a failure to [supervise] would result in the specific injury suffered, and that the failure to [supervise] represented the moving force behind the constitutional violation.’ To be ‘highly predictable,’ an outcome must be ‘so predictable that’ the failure to supervise or discipline ‘amounted to conscious disregard for’ the plaintiff’s rights,” Graves stated.
“Terrell’s acknowledgement that Hines was no-billed on the sexual assault charge – along with the conclusory nature of her allegations generally – makes it unreasonable to infer that her assault was a ‘highly predictable consequence’ of Gonzalez’s alleged failure to investigate Hines. Terrell also alleges that Gonzalez customarily does not investigate, or discipline, deputies accused of violations if the complainant is charged with a crime. The allegation is puzzling given that Terrell does not allege that she complained of Hines’s conduct or that she was charged with a crime. In short, her allegation is too conclusory to sufficiently allege the requisite causal connection between Gonzalez’s actions and Terrell’s injury. Terrell’s supervisory claims against Gonzalez fail.”
As to Terrell’s municipal liability claims, the Fifth Circuit also found them to have been correctly dismissed.
“Last, Terrell accuses Harris County of maintaining a policy of failure to adopt adequate training. To sustain a Section 1983 claim against a municipality – a ‘Monell claim’ – a plaintiff must show that a policymaker can be charged with knowledge of a policy, custom, or practice that was the moving force in her injury. A custom or practice is a pattern ‘so persistent and widespread as to practically have the force of law.’ The plaintiff cannot rely solely on the incident that resulted in her injury to demonstrate such a pattern. Terrell argues that her allegations that Hines and Cannon forced her into Hines’s patrol vehicle and that Hines sexually assaulted her are sufficient to show a failure-to-train policy because they are outrageous. But a single incident simply cannot demonstrate a widespread pattern,” Graves said.
“Terrell also repeats her argument that Gonzalez’s failure to investigate Hines for his earlier sexual assault arrest constituted deliberate indifference. That argument fails for the reasons stated above. The District Court did not err in concluding that Terrell’s claim against Cannon is barred by qualified immunity. It also correctly dismissed Terrell’s supervisory and municipal liability claims. Accordingly, we affirm.”
UCLA Law Professor Joanna Schwartz, who instruct students on civil procedure and courses on police accountability and public interest lawyering, decried the Fifth Circuit’s ruling.
“In Shielded: How the Police Became Untouchable, I write about interlocking and overlapping protections for law enforcement that make it exceedingly difficult to get justice when your rights are violated. There’s no clearer example of those protections and the horrors they inflict than Terrell v. Harris County,” Schwartz said.
Schwartz provided additional commentary on the ruling on her website.
U.S. Court of Appeals for the Fifth Circuit case 23-20281
U.S. District Court for the Southern District of Texas case 4:22-cv-00302
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com