IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 93-2453

_______________

SHELIA MARIE BROTHERS, Individually

and as Next Friend of Minor Children,

BRIENT BROTHERS, ROLAND BROTHERS, III,

and DANRICA BROTHERS; and ROLAND J. BROTHERS, Sr.,

Plaintiffs-Appellants,

VERSUS

JOHNNY KLEVENHAGEN,

in His Official Capacity as

Sheriff of Harris County, Texas,

and HARRIS COUNTY, TEXAS,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

(August 1, 1994)

Before GARWOOD, SMITH, and STEWART, Circuit Judges. 

JERRY E. SMITH, Circuit Judge:

Plaintiffs appeal a summary judgment in their excessive force

suit against Harris County, Texas, and its sheriff. Finding no

reversible error, we affirm.
1 The "sallyport" is a secure area at the rear of the jail where

incoming prisoners are unloaded and escorted into the building for booking.

2

I.

On November 5, 1988, Roland Brothers, Jr., a/k/a Michael Reed,

was arrested by the Jersey Village Police Department for auto

theft. Brothers spent a few hours in a cell at the Jersey Village

police facility. Because there were outstanding felony and

misdemeanor warrants for his arrest, the Jersey Village police

turned Brothers over to Harris County sheriff's deputies Barry Rizk

and Robert Nichols, who transported Brothers to the Harris County

Jail. They handcuffed Brothers, restrained his legs, and placed

him in the rear of the sheriff's vehicle.

When they arrived at the Harris County Jail, the deputies

drove into the "sallyport" area behind the jail.1 As the deputies

exited the car and proceeded to the area where they were required

to check their weapons, they noticed that Brothers somehow had

managed to remove the handcuffs and leg restraints and was running

from the car toward the entrance to the sallyport that they had

just entered. The automatic door to the sallyport entrance was in

the process of coming down. 

Fearing that Brothers would escape, the deputies several times

shouted at him to stop. As Brothers attempted to crawl under the

automatic door, the deputies drew their weapons and fired twelve

times. Brothers died from gunshot wounds.

Family members filed suit in state court pursuant to the Texas

Wrongful Death Statute and 42 U.S.C. § 1983 against the county,
3

against Johnny Klevenhagen, in his official capacity as sheriff,

and against Rizk and Nichols. The defendants removed the action to

federal court, and Rizk and Nichols were voluntarily dismissed by

plaintiffs.

The parties filed cross-motions for summary judgment. Both

deputies testified in depositions that they shot Brothers in order

to prevent his escape. They knew that he was unarmed, and they had

no reason to believe that he was a danger to them or anyone else.

It is undisputed that the deputies acted in accordance with the

official policy of the sheriff's department, based upon TEX. PENAL

CODE § 9.52, which authorizes the use of deadly force to prevent

escape from the jail without regard to whether the person is

dangerous. In granting summary judgment for the defendants, the

district court held that the evidence supported the conclusion that

the force used under the circumstances was necessary to prevent

Brothers's escape and was not unconstitutionally unreasonable. 

II.

A.

Plaintiffs contend that the district court erred in granting

summary judgment to defendants on their § 1983 claim. We review a

grant of summary judgment de novo. Hanks v. Transcontinental Gas

Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992). Summary

judgment is appropriate "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any
4

material fact and that the moving party is entitled to a judgment

as a matter of law." FED. R. CIV. P. 56(c). The party seeking

summary judgment carries the burden of demonstrating that there is

an absence of evidence to support the non-moving party's case.

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After a proper

motion for summary judgment is made, the non-movant must set forth

specific facts showing that there is a genuine issue for trial.

Hanks, 953 F.2d at 997.

We begin our determination by consulting the applicable

substantive law to determine what facts and issues are material.

King v. Chide, 974 F.2d 653, 655-56 (5th Cir. 1992). We then

review the evidence relating to those issues, viewing the facts and

inferences in the light most favorable to the non-movant. Id. If

the non-movant sets forth specific facts in support of allegations

essential to his claim, a genuine issue is presented. Celotex, 477

U.S. at 327.

B.

The threshold issue in this case is which constitutional

standard for excessive force applies to an individual escaping from

custody during transport from one holding cell to another. The

plaintiffs argue that the Fourth Amendment governs this case and

that the Supreme Court's decision in Tennessee v. Garner, 471

U.S. 1 (1985), compels a judgment in their favor.

In Garner, the Court held that the use of deadly force to

prevent a felony suspect's escape was unconstitutional unless the
2 We note that Garner cited with approval the Model Penal Code, which

treats prison escape attempts differently from the apprehension of suspects. 

Compare MODEL PENAL CODE § 3.07(2)(b) (Proposed Official Draft 1962) ("The use of

deadly force [to effect an arrest] is not justifiable . . . unless . . . the

actor believes that . . . there is a substantial risk that the person to be

arrested will cause death or serious bodily injury if his apprehension is

delayed.") with id. § 3.07(3) ("[A] guard or other person authorized to act as

a peace officer is justified in using any force, including deadly force, that

he believes to be immediately necessary to prevent the escape of a person from

a jail, prison, or other institution for the detention of persons charged with

or convicted of a crime.") and id. § 3.07 explanatory note ("The public

interest in prevention of escape by persons lawfully in the custody of penal

institutions is regarded by the provision as sufficient to warrant the use of

deadly force where the custodian or guard believes that only such force can

prevent the escape.").

5

officer had probable cause to believe that the suspect posed a

significant threat of death or serious physical injury to the

officer or others. Id. at 3. The Court held a Tennessee statute

unconstitutional to the extent it authorized such use of deadly

force. Id. at 11. The suspect in Garner was encountered in the

backyard of a house that officers were investigating for a reported

burglary. The officer shot the suspect as he attempted to escape

over a fence. The officer stated that he was reasonably sure that

the suspect was not armed and that he shot him to prevent his

escape. Id. at 3-4.

The Court stated that apprehension by the use of deadly force

was a seizure subject to the reasonableness requirement of the

Fourth Amendment, under which a court must balance the nature and

quality of the intrusion on the individual's Fourth Amendment

interests against the importance of the governmental interests

alleged to justify the intrusion. Id. at 7-8.2 

This argument would be pursuasive had Brothers been a suspect,

but at the time of his attempted escape he was in custody. A

pretrial detainee receives the protection of the Due Process Clause
3 Plaintiffs contend that the Court reached this issue in Albright v.

Oliver, 114 S. Ct. 807 (1994). We find Albright inapposite for two reasons. 

First, Albright was an individual complaining of an arrest and prosecution

without probable cause. That scenario is far different from a pretrial

detainee escaping from custody. Second, that portion of Albright that

suggests that the Fourth Amendment applies to pretrial deprivations of liberty

did not receive the support of a majority of the Justices. See id. at 813. 

Moreover, as Albright did not raise a Fourth Amendment claim, the discussion

of that amendment is plainly dictum. See id.

6

of the Fourteenth Amendment. Valencia v. Wiggins, 981 F.2d 1440,

1443-45 (5th Cir.), cert. denied, 113 S. Ct. 2998 (1993). Under

Valencia, the appropriate inquiry is "whether the measure taken

inflicted unnecessary and wanton pain and suffering" and "`whether

force was applied in a good faith effort to maintain or restore

discipline, or maliciously and sadistically for the very purpose of

causing harm.'" Id. at 1446 (citing Hudson v. McMillian, 112 S.

Ct. 995, 998 (1992)). 

In Graham v. Connor, 490 U.S. 386, 395 n.10 (1989), the Court

stated that it "ha[d] not resolved the question whether the Fourth

Amendment continues to provide individuals with protection against

the deliberate use of excessive force beyond the point at which

arrest ends and pretrial detention begins."3 But Valencia is

unambiguous as to when the protection of the Fourth Amendment ends:

We do not believe that the Fourth Amendment provides an

appropriate constitutional basis for protecting against

deliberate official uses of force occurring . . . after

the incidents of arrest are completed, after the plaintiff has been released from the arresting officer's

custody, and after the plaintiff has been in detention

awaiting trial for a significant period of time.

Valencia, 981 F.2d at 1443-44. 

The court cited three reasons for reaching this conclusion.

First, the text of the Fourth Amendment )) prohibiting unreasonable

"seizures" )) does not support its application to a post-arrest
7

encounter. Second, the Supreme Court has refused to apply the

Fourth Amendment to protect inmates after incarceration. And

third, Graham and Bell v. Wolfish, 441 U.S. 520 (1979) (refusing to

concede that Fourth Amendment applied to pretrial detainee

subjected to body cavity search), dictate that the Due Process

Clause is the appropriate constitutional basis for pretrial

detainee excessive force suits. 

Applying the Valencia analysis to the facts of this case, we

conclude that Brothers was a pretrial detainee. First, the

incidents of arrest were complete. Second, Brothers was released

from the arresting officer's custody. And third, Brothers already

had been in detention. 

Valencia indicates that the Fourth Amendment applies more

appropriately to the actual incident of arrest. Although the

protection may extend beyond the time of initial apprehension, see

981 F.2d at 1444 n.10, Brothers had been arrested earlier in the

day, had been processed by the Jersey Village Police Department,

and had spent several hours in jail. He was being transported to

the county jail, his hands cuffed and his legs restrained. It is

difficult to imagine how Brothers could not be considered a

detainee at that point. If the incident had occurred several hours

earlier, while Brothers was a resident of the Jersey Village Police

Department jail, he surely would have been considered a pretrial

detainee. The fact that he was being transported to the Harris

County jail does not change his status.
4 The Fourth Amendment prohibits unreasonable seizures. Of course,

shooting an escapee is a seizure; it stops his forward movement and terminates

his freedom. But pretrial detainees lose many individual liberties and do not

receive the full protection of the Fourth Amendment. 

5 Of course, the pretrial detainee may eventually become an inmate,

receiving the protection of the Eighth Amendment.

8

Plaintiffs argue that the apprehension of Brothers paralleled

the apprehension of the suspect in Garner. According to this

logic, however, anytime a detainee escapes, requiring re-apprehension by law enforcement officials, the Fourth Amendment comes back

into play because the individual is "seized." See id. at 1444

("[T]he concept of `seizure' in the Fourth Amendment is not so

capacious or elastic as to cover pretrial detention three weeks

after the initial arrest . . . .").4 

We reject this proposition. Once an individual has been

arrested and is placed into police custody, and surely after the

arresting officer has transferred the individual to a jail cell,

the individual becomes a pretrial detainee, protected against

excessive force by the Due Process Clause. Until the detainee is

permanently released from custody, this status never reverts back

to that of mere suspect.5 Any other conclusion would lead to the

anomalous result of pretrial escapees' receiving greater protection

than those detainees who peacefully remain in their cells. Thus,

the force used against Brothers should be judged under the Due

Process Clause. See Bender v. Brumley, 1 F.3d 271 (5th Cir. 1993)

(applying Due Process Clause analysis to pretrial detainee taken

from his cell the same day as his arrest and allegedly beaten).
9
6 Plaintiffs ignore Hudson v. Palmer, 468 U.S. 517, 526 (1983), in which

the Court stated: "[T]he Fourth Amendment proscription against unreasonable

searches does not apply within the confines of the prison cell." Moreover, in

Whitley v. Albers, 475 U.S. 312 (1985), the Court applied an Eighth Amendment

analysis to the claim of an inmate shot by a guard during a prison riot. 

Thus, we can safely conclude that the Court has imposed significant limitations on the reach of the Fourth Amendment to pretrial detainees.

10

C.

Plaintiffs contend that even if Brothers was a pretrial

detainee under Valencia, various Supreme Court cases dictate that

the Fourth Amendment applies to searches and seizures of prisoners

and pretrial detainees. In support of this position, plaintiffs

rely primarily upon Bell v. Wolfish, 441 U.S. 520 (1979). They

argue that this case, presumably applying certain Fourth Amendment

protections to prisoners and pretrial detainees, justifies

application of the Fourth Amendment to the seizure of an escaping

pretrial detainee.

Plaintiffs' reliance upon Wolfish is unavailing. In Wolfish,

the Court stated: "[A]ssuming for present purposes that inmates,

both convicted prisoners and pretrial detainees, retain some Fourth

Amendment rights upon commitment to a correctional facility, we

nonetheless conclude that these searches do not violate that

Amendment." Wolfish, 441 U.S. at 558 (citations omitted). Thus,

the Court refused to concede that the Fourth Amendment applied to

such inmates and concluded that no protection would be afforded

even if it did apply.6
11

D.
7 We note that the district court incorrectly applied a Fourth Amendment

analysis. Nevertheless, we may affirm summary judgment on grounds different

from those stated by the district court. See, e.g., Louisiana Land & Exploration Co. v. Amoco Prod. Co., 878 F.2d 852, 854 (5th Cir. 1989).

12

Under the due process standard Valencia applies to pretrial

detainees,7 the prevention of the escape was not unconstitutional.

The sheriff's department policy is designed "in a good faith effort

to maintain or restore discipline" and not "maliciously and

sadistically for the very purpose of causing harm." Brothers had

been arrested for auto theft and had previously escaped from

custody. The deputies shouted for Brothers to stop and only fired

upon him as he ignored their warnings and crawled under the closing

door. They acted quickly and decisively. 

Furthermore, the county policy allows deadly force only when

immediately necessary to prevent escape. It is apparent that the

deputies fired at Brothers only as a last resort to prevent the

escape. It is also apparent that if they had not fired upon him,

Brothers would have escaped. The deputies did not act maliciously

or sadistically or in an attempt to inflict punishment, but rather

followed a constitutional policy that permits deadly force only to

prevent an immediate escape. The plaintiffs failed to adduce

summary judgment evidence to the contrary.

III.

The plaintiffs also assert that the county's failure to train

its deputies concerning the constitutional limitations on the use

of force amounted to deliberate indifference to constitutional
13

rights. The plaintiffs fail to adduce any evidence of this alleged

failure or its connection to the prevention of Brothers's escape.

AFFIRMED.
8 As observed in Valencia, other Circuits have concluded that

the Fourth Amendment standard applies to various post-arrest,

pre-arraignment custodial settings. See Valencia, 981 F.2d at

1444, footnotes 9-12 and the accompanying text.

14

CARL E. STEWART, Circuit Judge, dissenting:

I agree with the majority's conclusion that the threshold

issue to be decided in this case is the standard of law that should

be applied to examine pretrial excessive force claims, however I

disagree with the majority's conclusion that the Due Process Clause

and not the Fourth Amendment provides the applicable standard of

law. The majority relies on Valencia v. Wiggins, 981 F.2d 1440

(5th Cir. 1993), cert. denied, ___ U.S. ___, 113 S.Ct. 2998, 125

L.Ed.2d 691 (1993), to conclude that Brothers was not protected by

the Fourth Amendment; however, I do not share my colleagues'

confidence that Valencia is dispositive of the instant issue. 

In Valencia, this Court held that the Due Process Clause and

not the Fourth Amendment provided the applicable legal standard to

adjudicate claims of excessive force. Valencia, 981 F.2d at 1445.

However, the Valencia court rooted its decision primarily in the

fact that the plaintiff had been in custody for three weeks before

the disputed incident, id at 1444, a fact not emphasized by the

majority opinion in Brothers. Noting that the Supreme Court had

been reluctant to extend Fourth Amendment protection beyond the

initial arrest, this Court concluded that when a suspect has been

in custody for an extended period of time, the Due Process Clause

and not the Fourth Amendment provided the applicable constitutional

standard to analyze claims of excessive force. Id at 1144-45.

8
15

However, the crucial factor in the Valencia analysis--the extended

period of time between the arrest and the challenged use of force--

is absent in this case. Thus, Valencia does not apply to the

present case where Brothers was killed shortly after his arrest.

In my view, Albright v. Oliver, ___ U.S. ___, 114 S.Ct. 807,

127 L.Ed.2d 114 (1994) resolved the doubts expressed in Valencia

about extending the protection of the Fourth Amendment beyond the

time of arrest. In Albright, the petitioner claimed that his Due

Process rights had been violated when the State of Illinois

initiated criminal proceedings against him for committing noncriminal acts. The petitioner had surrendered himself when he

learned of an outstanding warrant for his arrest, and was conditionally released after posting bond. He deliberately decided to

pursue his claim before the U. S. Supreme Court only under the Due

Process Clause and did not pursue a possible Fourth Amendment

violation. A plurality of the Supreme Court held that his claim

was governed exclusively by the Fourth Amendment and that he could

not recover for a violation of his substantive Due Process rights.

Id at 813. Justice Souter concurred, but did not join, in the

plurality opinion, noting that ". . . none of petitioner's alleged

injuries has been treated by the Courts of Appeals as beyond the

ambit of compensability under the general rule of 42 U.S.C. § 1983

liability for a seizure unlawful under Fourth Amendment standards

. . .", Id at 821, and that harms such as those claimed by the

petitioner "have naturally coalesced under the Fourth Amendment,
16

since the injuries usually occur only after an arrest or other

Fourth Amendment seizure . . .". Id at 822. 

In Albright, the petitioner had been "seized" by his arrest

and his conditional release after posting bond. Five members of

the Court agreed that a Fourth Amendment analysis, and not a Due

Process Clause analysis, applied to the petitioner's 42 U.S.C. §

1983 claims. See the plurality opinion, id, along with the

concurrence by Justice Souter, 114 S.Ct. at 819-822. Thus, the

Supreme Court has extended the protection of the Fourth Amendment

beyond the time of arrest or the initial act of restraining an

individual's liberty. I read Albright as pronouncing precisely the

scope of Fourth Amendment protection that the majority denies in

the instant case. As stated in Albright, id, at 813 (emphasis

added),

The Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to

address it.

This observation provides a greater basis for concluding that the

Fourth Amendment is the applicable standard of analysis in this

case than Valencia does for concluding that the Fourth Amendment

does not apply. The concern expressed in Valencia, regarding

whether Fourth Amendment protection extends beyond the initial

arrest, has been answered by the Supreme Court in the affirmative.

In Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85

L.Ed.2d 1 (1985) (emphasis added), the Supreme Court stated that,

 Whenever an officer restrains the freedom of a person

to walk away, he has seized that person. United States

v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). While it is

not always clear just when minimal police interference
17

becomes a seizure, see United States v. Mendenhall, 446

U.S. 544 (1980), there can be no question that apprehension by the use of deadly force is a seizure subject to

the reasonableness requirement of the Fourth Amendment.

Accordingly, the Fourth Amendment is applicable to the instant

case.

Garner, id, compels a judgment in Brothers' favor regarding

the constitutionality of the Harris County policy. In Garner,

pursuant to a statute that allowed the use of deadly force to

apprehend all felony suspects, a police officer had shot a burglary

suspect as he tried to escape. The Supreme Court determined that

the Tennessee statute was unconstitutional as applied to unarmed,

nondangerous fleeing suspects because it violated the Fourth

Amendment's prohibition against unreasonable searches and seizures.

Id at 11. Accordingly, the Court held the Tennessee statue

"invalid insofar as it purported to give [the officer] the

authority to act as he did". Id at 22. In so holding, the Court

stated that:

[T]he use of deadly force to prevent the escape of all

felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony

suspects die than that they escape. Where the suspect

poses no immediate threat to the officer and no threat to

others, the harm resulting from failing to apprehend him

does not justify the use of deadly force to do so. Id at

11. (emphasis added).

This principle is applicable to the case before us now.

Each of the deputies stated in his deposition that they had no

reason to think that Brothers would pose a threat to them or
9 The record reflects that one of the officers considered all

escapees to be dangerous and therefore considered Brothers to be

dangerous because he was an escapee. When asked whether he had

any reason to believe that Brothers was dangerous, he replied

"No."

18

anybody else.9 Both deputies also testified that they did not

think that he was a danger to the outside community. Given the

uncontradicted testimony that Brothers posed no danger beyond the

risk of his escape, the Harris County policy which allowed this use

of deadly force is unconstitutional as applied to Brothers because

it violated the Fourth Amendment prohibition against an unreasonable seizure. Under Tennessee v. Garner, supra, this policy can

provide no shield from liability for the defendants.

For the foregoing reasons, I respectfully dissent.