Henderson v. Harris County, 2022 WL 6968424 (5th Cir. 2022)
Three officers were in a city park (a drug-free zone) to investigate drug activity. The officers approached the park separately in marked patrol cars and saw three men at a picnic table. Officer Garduno reported he smelled marijuana and saw one of the men “breaking up marijuana” into a shoebox. Officer Garduno said one of the men, Christopher Henderson, had a blunt tucked behind his ear and threw onto the ground a plastic bag that Officer Garduno suspected contained marijuana.
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When Henderson saw the officers, he ran. Officer Garduno radioed about a person evading arrest, activated his siren, and followed in a patrol car. As Henderson entered an apartment complex, Officer Garduno jumped out of the car and began a foot pursuit. Eventually, Officer Garduno caught up to Henderson in the parking lot and shouted at Henderson to stop, warning, “I’m going to tase you.” Officer Garduno reported Henderson stopped, turned to face him, and reached toward his waistband with both hands. Henderson claims he stopped and “turned his head slightly toward the deputy and raised his hands in the air as if to surrender.”
Believing Henderson was reaching for a weapon, Officer Garduno fired his TASER device. A single prong hit Henderson’s face and the other went over his head. Officer Garduno fired a second cartridge. Both prongs hit Henderson’s back. He fell backward and hit his head.
Other officers then arrived. Officer Garduno perceived Henderson was still struggling while on the ground and the officers were trying to handcuff him. Officer Garduno energized the TASER device again.
Henderson had a small amount of marijuana in his pocket but no weapon. He was initially charged with possession of marijuana in a drug-free zone, but the charges were later dismissed. Henderson and his grandmother sued Harris County and Officer Garduno. The district court dismissed the Monell claim against the county and granted summary judgment to Officer Garduno based on qualified immunity. Henderson appealed.
From time to time, I hear from readers asking, “What the heck is a Monell claim?” Raising a Monell claim is one way plaintiffs try to get at the purse of the government agency in the role as the officer’s employer, supervisor and policymaker for the agency. The Monell liability theory was created in Monell v. Department of Social Services of the City of New York (436 U.S. 658 (1978)). Most of the time, the claim alleges the agency failed to properly train or supervise the officer and that failure led to the alleged injury. Often the court puts it this way: The plaintiff must show that an official agency policy was the “moving force behind the violation of a constitutional right.”
In this case, Henderson claimed the county failed to provide any use of force policies or train its officers on proper TASER device use. The appellate court rejected Henderson’s claims. The court explained that to establish Monell liability on a failure-to-train theory, a plaintiff must prove: “(1) the city failed to train or supervise the officers involved; (2) there is a causal connection between the alleged failure to supervise or train and the alleged violation of the plaintiff’s rights; and (3) the failure to train or supervise constituted deliberate indifference to the plaintiff’s constitutional rights.”
In support of the failure to train claim, Henderson merely alleged that a public records request to the county wasn’t answered with copies of policies relating to TASER device use. But the response to a broad public records request is likely to be very different from the production of documents normally required in the civil litigation context. The appellate court held that Henderson failed to allege specific facts as to a “custom or practice of not creating or implementing policies governing deputies. This alone is enough to dispose of Henderson’s failure-to-train claim.” Simply claiming there was no policy isn’t enough. Moreover, Henderson admitted Officer Garduno was trained in TASER device use by the Texas Commission on Law Enforcement and Henderson failed to show that the training did not address the constitutional use of electronic control devices.
Finally, Henderson did not plausibly allege that any failure to train constituted deliberate indifference. Henderson did not show a pattern of similar constitutional violations by untrained officers. Note: There is a very narrow and rare exception to the requirement of showing a pattern, but it just wouldn’t work in this case.
The appellate court easily held that qualified immunity was appropriate. Henderson admittedly ran from officers, then stopped suddenly and turned toward Officer Garduno. “Garduno made the split-second decision to deploy his taser after Henderson had led him on a long chase by car and by foot and was still unrestrained,” the court noted. Henderson moved his arms in a manner that suggested to Officer Garduno he was reaching for a weapon. The use of the TASER device in those circumstances was proper.
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