IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-31061

Summary Calender

TOMMY FERNAND SANCHEZ, JR.; HAZEL SANCHEZ, as Tutrix of minor

child Tyler Sanchez; TONYA SANCHEZ,

Plaintiffs–Appellants

v.

DANIEL EDWARDS, Sheriff, Tangipahoa Parish; HAMMOND CITY; JACOB

SCHWEBEL; GARRETT BANQUER,

Defendants–Appellees

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:08-CV-1227

Before WIENER, PRADO, and OWEN, Circuit Judges.

PER CURIAM:*

The plaintiffs brought this § 1983 suit alleging excessive force after two

of the defendants, Hammond Police Officer Garrett Banquer and Tangipahoa

Parish Sheriff Deputy Jacob Schwebel, shot and killed the plaintiffs’ father,

Thomas Sanchez Sr. The district court granted summary judgment to the

defendants after finding that the officers’ actions were objectively reasonable

United States Court of Appeals

Fifth Circuit

F I L E D

July 20, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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and did not deprive Sanchez of his constitutional right to be free from the use of

excessive force under the Fourth Amendment. We affirm.

I. BACKGROUND

On March 7, 2007, several officers from the Tangipahoa Parish Sheriff’s

Office and the Hammond Police Department were conducting a surveillance

operation of a residence in Ponchatoula, Louisiana, to investigate suspected

illegal drug activity. When the surveillance was discovered, the officers began

searching the premises for drugs and questioning individuals who approached

the residence. Sanchez approached the residence in a 1992 Toyota Camry and

pulled into the neighboring driveway. Two of the officers at the residence,

Officer Banquer and Deputy Schwebel, walked towards the vehicle. Schwebel

approached the driver’s side, and Banquer approached the passenger’s side. 

Both Schwebel and Banquer were wearing clothing identifying themselves as

law-enforcement officers.

After the officers verbally identified themselves as law-enforcement

officers, they ordered Sanchez to stop the vehicle. Instead, Sanchez reversed

into the street. Both officers shouted for him to stop. Schwebel followed the car

into the road and held his position by the driver’s side window. Banquer, in an

attempt to remain on the passenger’s side of the vehicle, crossed in front of the

car while Sanchez reversed out of the driveway. Once Sanchez’s car had exited

the driveway and while Banquer was positioned near the front of the car,

Sanchez put the car into drive and accelerated in the direction of Banquer. 

Witnesses in the neighboring yards heard the sound of tires spinning on the

gravel over the shouts of both officers commanding that Sanchez stop the

vehicle. As the vehicle accelerated towards Banquer, both officers fired their

service weapons at Sanchez. The vehicle struck Banquer, continued down the

road, and eventually came to a stop in a ditch. Sanchez was hit by three of the

shots fired by Schwebel and was pronounced dead at the scene.

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On March 7, 2008, the plaintiffs filed this claim under 42 U.S.C. § 1983

against Schwebel; his employer, Tangipahoa Parish Sheriff Daniel Edwards;

Banquer; and his employer, the City of Hammond, Louisiana. The complaint

alleged that the shooting violated Sanchez’s constitutional right to be free from

the use of excessive force. The district court granted the defendants’ motion

for summary judgment, holding that Schwebel’s and Banquer’s actions were

objectively reasonable.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo, applying the same

standard as the district court. Apache Corp. v. W & T Offshore, Inc., 626 F.3d

789, 793 (5th Cir. 2010). Summary judgment is appropriate when “there is no

genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” FED. R. CIV. P. 56(a). We may affirm a grant of summary

judgment “on any basis supported by the record.” TIG Specialty Ins. Co. v.

Pinkmonkey.com Inc., 375 F.3d 365, 369 (5th Cir. 2004).

III. ANALYSIS

A. Claims against Banquer and Schwebel

The defendants assert qualified immunity on appeal. “The doctrine of 1

qualified immunity protects government officials ‘from liability from civil

damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.” 

Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 815 (2009) (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, the qualified-immunity inquiry

has two prongs: (1) whether an official’s conduct violated a constitutional right

of the plaintiff, and (2) whether the right was clearly established at the time of

the violation. Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (citation

 The district court did not expressly state that it was relying on qualified immunity, 1

but that appears to be the basis for its grant of summary judgment.

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omitted). “A court may rely on either prong of the defense in its analysis.” Id.

(citation omitted). Because we conclude that Sanchez’s constitutional rights

were not violated in this case, we need not consider the issue of whether those

rights were clearly established.

“The use of deadly force for apprehension is a seizure subject to the

reasonableness requirement of the Fourth Amendment.” Hathaway v. Bazany,

507 F.3d 312, 320 (5th Cir. 2007) (citing Tennessee v. Garner, 471 U.S. 1, 7

(1985)). In Garner, the Supreme Court defined the circumstances under which

an officer’s use of deadly force to stop a fleeing suspect is constitutionally

reasonable:

Where the officer has probable cause to believe that the suspect

poses a threat of serious physical harm, either to the officer or to

others, it is not constitutionally unreasonable to prevent escape by

using deadly force. Thus, if the suspect threatens the officer with a

weapon or there is probable cause to believe that he committed a

crime involving the infliction or threatened infliction of serious

physical harm, deadly force may be used if necessary to prevent

escape, and if, where feasible, some warning has been given.

471 U.S. at 11–12. “The reasonableness of an officer’s use of deadly force is

therefore determined by the existence of a credible, serious threat to the physical

safety of the officer or to those in the vicinity.” Hathaway, 507 F.3d at 320. In

making this determination, we must allow “for the fact that police officers are

often forced to make split-second judgments—in circumstances that are tense,

uncertain, and rapidly evolving—about the amount of force that is necessary in

a particular situation.” Graham v. Connor, 490 U.S. 386, 396–97 (1989).

In Hathaway v. Bazany, we applied the Garner standard to facts that are

legally indistinguishable from the facts in this case. See 507 F.3d 315–16. In

Hathaway, a police officer stopped a vehicle in order to investigate a gangrelated altercation in the area. Id. at 315. When the officer, who was on foot,

was approximately eight-to-ten feet from the front right corner of the vehicle,

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the vehicle suddenly accelerated towards him. Id. at 316. He attempted to get

out of the way, but when he realized that he would not be able to do so, he

decided to fire his weapon. Id. The vehicle struck the officer on the left leg,

and the officer fired his weapon, although he could not recall whether he fired

it before, during, or immediately after he was struck by the vehicle. Id. The

shot hit the driver of the vehicle and killed him. Id.

On these facts, we held that the officer’s use of deadly force was justified

even though he could not specifically recall when he fired his weapon. See id.

at 321–22. In doing so, we surveyed the relevant case law and identified two

“central” factors in the reasonableness inquiry in these kinds of cases: (1) “the

limited time [an] officer[ ] ha[s] to respond” to the threat from the vehicle; and

(2) “‘the closeness of the officer[ ] to the projected path of [the] vehicle.’” Id.

at 321 (quoting Waterman v. Batton, 393 F.3d 471, 479 (4th Cir. 2005)) (final

alteration in Hathaway). Given the officer’s “close proximity” to the vehicle and

the “extremely brief period of time” in which he had to react to the vehicle’s

movement towards him, we found that the officer was objectively reasonable

in his perception of a threat of serious physical harm to himself and in his

decision to respond to that threat with deadly force. Id. at 322.

Applying these factors to the fact of this case, we find that Banquer and

Schwebel acted reasonably in their use of deadly force on Sanchez. Like the

officer in Hathaway, Banquer and Schwebel had to take action quickly and

decisively in response to an oncoming vehicle that was threatening an officer’s

safety. Sanchez ignored numerous commands from the officers to bring his

vehicle to a stop. Both Banquer and Schwebel, who were the only eyewitnesses

to the shooting, testified that Banquer was in front of Sanchez’s Camry when

Sanchez put the car into drive and drove forward. Because of the short period

of time in which the officers had to react to Sanchez’s abrupt change of direction

and Banquer’s obvious peril given his position in front of the vehicle, we have

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absolutely no trouble finding that the officer’s decision to use deadly force was

reasonable under the circumstances.

The plaintiffs cite to Lytle v. Bexas County, Texas, 560 F.3d 404 (5th Cir.

2009), in support of their appeal, but Lytle is distinguishable. In Lytle, we held

that a police officer was not entitled to qualified immunity when the officer

fired shots through the rear window of a vehicle driven by a fleeing suspect. 

Id. at 417. We based our decision on evidence suggesting that the officer was

three-to-four houses away from the vehicle when he fired his weapon and that

the vehicle was moving away from, rather than towards, him at the time. Id.

at 412. By contrast, in this case the record shows that Banquer and Schwebel

were within feet of Sanchez’s car when they fired their weapons and that

Banquer’s shots struck the front windshield and hood of the car. Thus, our

decision in Lytle is far from relevant, as there is no credible evidence in the

record in this case to suggest that the officers fired their weapons at a fleeing

vehicle that posed no risk to either officer.

The plaintiffs also assert that a statement made by Ladrelle Wells, a

woman who was detained by the police after she approached the residence,

creates a genuine issue of material fact. In her statement, which she made to

the police shortly after the incident, Wells described the events as she had

observed them from her position in the adjacent yard. She stated that after

the Camry had reversed into the street, but before it had begun to accelerate

forward, Banquer was standing near the passenger’s side door of the car. The

plaintiffs argue that if Banquer was not in front of the car when it accelerated

forward, then he was not in danger and the officers’ use of deadly force was

unreasonable.

Wells’s assertion regarding Banquer’s position vis-à-vis Sanchez’s car,

however, is exceptionally weak evidence. Her assertion contradicts the other

parts of her statement to the police and her own deposition testimony. In her

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deposition, she testified that she did not see any part of the incident after the

Camry reversed out of the driveway. Also, in both her statement to the police

and her deposition, she consistently maintained that she did not witness the

shootings because it was nighttime, she was far away from the incident, and

she was looking in another direction. The only eyewitnesses to the shooting,

Banquer and Schwebel, contradict Wells’s assertion, and there is no dispute

that Banquer’s shots struck the front windshield and hood of Sanchez’s car. 

The plaintiffs’ own expert testified to the possibility that Banquer fired his

weapon from a position between the front headlights of the vehicle, and all of

the other experts testified that it is impossible to determine the exact location

of Banquer when he fired the shots.

Given that Wells’s inconsistent and contradicted assertion is the only

evidence in the record on which the plaintiffs can rely, we find that it is simply

insufficient to create a genuine dispute of material fact to get past summary

judgment. See Hathaway, 507 F.3d at 319 (reiterating the uncontroversial

proposition that a plaintiff needs more than a “scintilla of evidence” to create a

genuine dispute of material fact). On the basis of the record in this case, no

reasonable juror could find that Banquer and Schwebel acted unreasonably

under the circumstances, and therefore we conclude that they are entitled to

qualified immunity.

B. Claims against Sheriff Edwards and Hammond City

The plaintiffs also bring municipal-liability claims under § 1983 against

Sheriff Edwards and Hammond City. To succeed on such a claim, the plaintiffs

must show an underlying constitutional violation resulting from an official

policy. Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 694 (1978). As the plaintiffs

are unable to show an underlying constitutional violation, they have failed to

meet their burden under the Monell standard.

AFFIRMED.

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