HOUSTON – A federal judge has denied a motion for summary judgment from a Harris County sheriff’s deputy, one accused of excessive force by a man the deputy shot in the left leg, the father of a woman who had just called 911 – an event the deputy contended was accidental.
On Sept. 30, U.S. District Court for the Southern District of Texas Judge George C. Hanks Jr. ruled in favor of plaintiff Stephen Benavides, and dismissed the motion from defendant Harris County Sheriff’s Deputy Jose Nunez.
“One evening in 2019, Sandra Garibay called 911 and said she needed police because she thought an intruder had been in her house. She was home with her children. She said her father, Stephen Benavides, was on his way to her house and would be driving a white Chevy pickup truck. Nunez and another deputy responded, and much of what followed was captured on Nunez’s body camera footage. Nunez approached the house, which had a white pickup truck parked on its front lawn, and said, ‘Looks like a crash.’ Turning on his flashlight, he stopped to inspect the truck. He pulled out his gun as he proceeded toward the house. He inspected the areas around the house quietly including the lawn to either side of the house, the front door and the vehicle parked on the driveway. He then went to the front door and put his right hand on the doorknob. The door appeared to move. (Benavides testified that he ‘went to go open the front door.’) Nunez raised his gun in his left hand as the door opened and shot Benavides in his left leg. As Nunez lowered the gun, he switched it into his right hand,” Hanks said.
“Both of Nunez’s hands were on the gun when he fired, as can be seen in this picture taken from the body camera footage. The video, however, does not establish whether. Nunez was transitioning the gun from one hand to other when he fired or he was putting both hands on the gun in preparation to shoot whoever was behind the door. Nunez claims the former and that he accidentally shot Benavides. Benavides argues the video shows Nunez intentionally shooting Benavides. Benavides brought an excessive force claim against Nunez under the Fourth Amendment. In his pending motion, Nunez argues that his action was not objectively unreasonable. He also argues that he shot Benavides accidentally and that accidental shootings do not violate the Fourth Amendment.”
Hanks mentioned there was “a genuine issue of material fact in the record that precludes summary judgment as a matter of law”, which both defeated Nunez’s assertion of qualified immunity and the motion itself.
The judge explained that a qualified immunity defense has two prongs: 1) Whether an official’s conduct violated a statutory or constitutional right of the plaintiff; and 2) Whether the right was clearly established at the time of the violation.
The Court disagreed with Nunez’s stated contention that the shooting was accidental, in part based on what the body camera footage depicted.
“The Court disagrees with Nunez that his body camera footage conclusively establishes that the shooting was accidental. The body camera footage shows that Nunez had both hands on his weapon when he fired it. One could reasonably view the footage as showing that Nunez was deliberately aiming his weapon, intending to shoot whoever was behind the door. Since there are at least two different reasonable ways to view the body camera footage – and since at least one of those ways supports Benavides’s account of the shooting – the Court will not ‘play junior-varsity jury’ and will let an actual jury decide which view of the footage is the correct one,” Hanks stated.
“The fact that Benavides’s view of the video is reasonable also renders unavailing Nunez’s reliance on Bryant v. Gillem. In Gillem, dashcam footage showed a deputy approaching a suspect who was on the ground in the grass. The deputy put his pistol into his left hand and drove his right knee into the suspect’s back. Still holding the firearm with his left hand and reaching with his right for the suspect’s hands, the deputy shot the suspect in his left shoulder. The Fifth Circuit affirmed the District Court’s grant of summary judgment in favor of the deputy, holding that the District Court was correct in concluding that the summary judgment record contained ‘no competent summary judgment evidence reasonably showing that [the deputy’s] failure to holster his firearm and his discharge of the firearm were intentional acts.”
Hanks called the Gillem case “distinguishable” from the one at issue.
“According to the Fifth Circuit’s description of the video in that case, ‘there [was] no fact dispute that [the deputy] unintentionally kept his firearm in his hand as he sought to restrain [the plaintiff].’ Here, by contrast, a person viewing Nunez’s body camera footage could reasonably conclude that Nunez intentionally drew his weapon, intentionally aimed it with both hands and intentionally fired it at Benavides. And the mere fact that Nunez may have believed Benavides was an intruder does not justify shooting him ‘without warning’ or ‘sufficient time to respond,” Hanks concluded.
“There is a genuine issue of material fact about whether Nunez shot Benavides intentionally or accidentally. This fact will determine whether Nunez violated the Fourth Amendment and ultimately whether he is entitled to qualified immunity. Therefore, summary judgment cannot be granted as a matter of law. Nunez’s motion is denied.”
U.S. District Court for the Southern District of Texas case 4:21-cv-01289
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com