### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 afte r two of the defendants, Hammond Police Officer Garrett Banquer and Tangipahoa Parish Sheriff D e p u ty Jacob Schwebel, shot and killed the plaintiffs’ father, Thomas Sanchez Sr. Th e district court granted summary judgment to the defendants after fi n ding that the officers’ actions were objectively reasonable U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D July 20, 2 011 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-31061 Document: 00511546241 Page: 1 Date Filed: 07/20/2011No. 10-31061

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 Paris h S h e riff’s Office and the Hammond Police Department w ere conducting a surveillance operation of a r e sidence 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 driv eway. Two of the officers at the residence, Officer Banquer and Deputy Schwebel, walked towards the vehicle. Schwebel approached the driver’s side, and Banquer approach e d th e passenger’s side. B o th S chwebel and Banquer were wearing clothing identifying themselves a s law-enforcement officers. After the officers verb a lly identified themselves as law-enforcement officers, they o r d e red 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 a n d wh ile Banquer was positioned near the front of the car, Sanchez put the car into drive and accelerated in the direction o f B a n qu e r. Witnesses in the neighboring yard s heard the sound of tires spinning on the gravel over the s h o u t s of both officers commanding that Sanchez stop the vehicle. As the vehicle accelerated towards B anquer, 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.

2 Case: 10-31061 Document: 00511546241 Page: 2 Date Filed: 07/20/2011No. 10-31061

On March 7, 2008, the plaintif f s filed this claim under 42 U.S.C. § 1983 against Schwebel; his employer, Tangipahoa Parish Sheriff D a niel Edwards; Banquer; and his employer, the City o f Hammond, Louisiana. The complaint alleged that the shooting violated Sanchez’s constitutional right to be free from th e use of excessive force. The district court granted the defendants’ m o t i o n for summary judgment, holding that Schwebel’s and Banquer’s a c t ions were objectively reasonable. II. STANDARD OF REVIEW We review a grant of summary judgment de novo, applying th e s a me standard as the district court. Apache Corp. v. W & T Offshore, I n c . , 6 26 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.” F E D

. R. C IV

. P. 56(a). We may affirm a gr ant of summary judgment “on any ba s i s 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 imm u nity protects government officials ‘from liability from civil damages insofar as their conduct does not violate clearly established statutory

or constitutiona l rights of which a reasonable person would have known.” Pearson v. Callahan , 555 U.S. 223, 129 S. Ct. 8 08, 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 violat i o n . B ro wn v. Callahan , 623 F.3d 249, 253 (5th Cir. 2010) (citation

Thedist ric t court didno t expr es sly s tat e that it wa s relyi ng onqua lif iedim mun ity, 1 but thatap pea rst o b e t he bas is forit s grantof s umm ary judgm ent. 3 Case: 10-31061 Document: 00511546241 Page: 3 Date Filed: 07/20/2011No. 10-31061

omitted). “A court may rely on either prong of the defense in its analysis.” Id. (citation omitted). Because we conclude that Sanchez’s co n s t i t u t ional 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 ap p r e h e n s i o n 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. Garn e r , 471 U.S. 1, 7 (1985)). In Garner , the Supreme Court defined the circumstances under which

a n o fficer’s use of deadly force to stop a fleeing suspect is constituti o n a l ly reasonable: Where the officer has probable cause to believe th a t the suspect poses a threat of seriou s p hysical 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 h e committed a crime involving the infliction or threatened inflictio n o f 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 o f d eadly 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 50 7 F

. 3 d 3 1 5

– 16. In Hathaway , a polic e o f f i c e r stopped a vehicle in order to investigate a gangrelated altercation in the area. Id. at 315. When the o f f i c e r , wh o was on foot,

was appr o ximately eight-to-ten feet from the front right corner of the vehicle,

4 Case: 10-31061 Document: 00511546241 Page: 4 Date Filed: 07/20/2011No. 10-31061

the vehicle suddenly accelerated towards him. Id. at 316. He attempted to get out of the way, but wh e n he realized that he would not be able to do so, he decided to fir e hi s w e a pon. Id. The vehicle struck the officer on the left leg, and the offic e r f

ired his weapon, although he could not recall whether he fired it before, during, or immediately after he was stru c k b y th e 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

e v e n th o ugh he could not specifically recall when he fired his weapon. See id. at 321–22. In doing so, we surv e y e d th e r e levant case law and identified two

“c e ntral” factors in the reasonableness inquiry in these kinds of cases: (1) “th e limited time [an] officer[ ] ha[s] to respond” to the threat from the vehicle; and (2) “‘the closeness o f th e o f f i cer[ ] to the projected path of [the] vehicle.’” Id. at 321 (quoting Waterman v. Batton , 393 F

. 3 d 4 7 1, 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 v ehicle’s movement towards him, w e f o u n d that the officer was objectively reasonable in his perception of a thr e at of serious physical harm to himself and in his decision to respond to that threat with deadly force. Id. at 322. Applyi n g these factors to the fact of this case, we find that Banquer and S c h webel acted reasonably in their use of deadly force on Sanchez. Like the officer in Hathaway , Banqu e r a n d S c hwebel 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 th e o f f i cers 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 S a n c hez’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 Banqu e r’s obvious peril given his position in front of the vehicle, we have

5 Case: 10-31061 Document: 00511546241 Page: 5 Date Filed: 07/20/2011No. 10-31061

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 wa s n ot entitled to qualified immunity when the officer fired shots through the rear window of a vehicle driven by a fl e e i n g suspect. I d

. at 417. We based our decision on evidence suggesting that the office r w a s 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 t i m e . Id. at 412. By c ontrast, in this case the record shows that Banquer and Schwebel

were within feet of Sanchez ’ s c a r when they fired their weapons and that Banquer’s s hots struck the front windshield and hood of the car. Thus, our decision in Lytle is f

a r from relevant, as there is no credible evidence in the record in this case to suggest that the of f i c e r s fired their weapons at a fleeing vehicle that posed no risk to either officer. The plaintiffs also assert th a t a statement made by Ladrelle Wells, a

woman who was detained by the police af t e r s h e approached the residence, creates a genuine issue of material fact. In her statement, which she made to the police shortly after the i n c i dent, Wells described the events as she had observed them from her position in the adjacent yard. She stated that af t er the Camry had reversed into the street, but b e f o r e 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, th e n h e 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 asse rti o n c ontradicts the other parts o f h e r statement to the police and her own deposition testimony. In her

6 Case: 10-31061 Document: 00511546241 Page: 6 Date Filed: 07/20/2011No. 10-31061

deposition, she testified that s h e did not see any part of the incident after the Camry reversed out of the driveway. Al s o , i n both her statement to the police and her deposition, she consistently maintained that she did not witness the shootings because it was nightt i m e , s h e 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 as s e rtion, 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 , a nd all of the other experts testified that it is impossible to determine the exa c t l o cation of Banquer when he fired the shots. Given that Wells’s incons i stent 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 s u m m ary judgment. See Hathawa y , 507 F.3d at 319 (reiterating the uncontroversial proposition that a plaintiff needs more than a “scintilla of evidence” to create a g e nu i n e dispute of material fact). On the basis of the record in this case, no reasonable j u r or could find that Banquer and Schwebel acted unreasonably under the circumstances, a n d 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 § 19 8 3 against Sheriff Edwards and Hammond City. To succeed on such a claim, the plaintiffs must s how 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 un ab l e t o s how an underlying constitutional violation, they have failed to meet their burden under the Monell standard. AFFIRMED.

7 Case: 10-31061 Document: 00511546241 Page: 7 Date Filed: 07/20/2011