MARITZA AMADOR A R O T ESTATE OF GILBERT ......2017/07/19 · MARISELA FLORES, CARMEN FLORES A ND ROGELIO FLORES, P LAINTIFFS, V. CIVIL ACTION NO. 5:15-CV-00810-RP BEXAR COUNT Y,

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

MARITZA AMADOR, INDIVIDUALLY § AND AS REPRESENTATIVE OF THE ESTATE § OF GILBERT FLORES AND AS NEXT § FRIEND OF MINOR R.M.F., VANESSA § FLORES, MARISELA FLORES, § CARMEN FLORES AND § ROGELIO FLORES, §

§ PLAINTIFFS, §

§ V. § CIVIL ACTION NO. 5:15-CV-00810-RP

§ BEXAR COUNTY, BEXAR COUNTY § SHERIFF’S OFFICE, GREG VASQUEZ,§ INDIVIDUALLY AND IN HIS OFFICIAL § CAPACITY AND ROBERT SANCHEZ, § INDIVIDUALLY AND IN HIS OFFICIAL § CAPACITY, §

§ DEFENDANTS. §

____________________________________§

DEFENDANTS DEPUTIES GREG VASQUEZ AND ROBERT SANCHEZ’ MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE UNITED STATES DISTRICT JUDGE ROBERT PITMAN: NOW COMES DEPUTY GREG VASQUEZ and DEPUTY ROBERT SANCHEZ,

Defendants in the above entitled and numbered cause, and pursuant to Rule 56, FEDERAL

RULES OF CIVIL PROCEDURE, files this their Motion for Summary Judgment and in

support thereof would respectfully show unto the Court the following:

I.

Defendant Deputies VASQUEZ and SANCHEZ would show unto the Court that

there is no genuine issue as to any material fact and that they are entitled to judgment, as

a matter of law.

Case 5:15-cv-00810-RP Document 110 Filed 06/30/17 Page 1 of 17

Maritza Amador, et al v. Bexar County, et al Civil Action No. 5:15-CV-00810-RP Defendants Vasquez and Sanchez’ Motion for Summary Judgment Page 2

II.

Defendant Deputies VASQUEZ and SANCHEZ incorporate into their Motion for

Summary Judgment for all purposes the following exhibits:

(1) Exhibit A - DVD of Incident1; (2) Exhibit B - Transcription of 9-1-1 Calls; (3) Exhibit C - Incident Detail Report; (4) Exhibit D - Deposition of Deputy Greg Vasquez; (5) Exhibit E - Deposition of Deputy Robert Sanchez; (6) Exhibit F - Deposition of Maritza Amador; (7) Exhibit G - Photograph of Knife; (8) Exhibit H - Photograph of Maritza Amador; (9) Exhibit I - Affidavit of Expert Albert Rodriguez; and, (10) Exhibit J - Affidavit of Chris Flores.

The above Exhibits A and J are hereby incorporated by reference for all purposes.

III.

The case at bar concerns the tragic incident which occurred on August 28, 2015 at

the residence of 24414 Walnut Pass in Bexar County, Texas. Plaintiffs’ Decedent,

Gilbert Flores, a 41-year-old parolee who had served ten (10) years in prison for

Aggravated Assault was living at his parents’ home with

his wife, Maritza Amador and seventeen (17) day old

daughter, R.M. at the time of the incident. Gilbert Flores

became enraged like a mad man and physically struck his

wife, Maritza Amador, two or three times, as she sat on the

bed breastfeeding their 17-day-old baby, R.M. (See,

Exhibit F – Deposition of Maritza Amador, p. 37; Exhibit

H – Photograph of Maritza Amador). Gilbert Flores then attempted to grab his baby 1 The DVD of the incident will be traditionally filed with the Clerk’s Office.



from his wife, which Maritza Amador resisted in a struggle. Gilbert Flores took his

walking stick, and struck Maritza Amador on the head several times as she held and

protected the baby. As Maritza was bleeding profusely from her head, Gilbert Flores

attempted once again to retrieve the newborn, by grasping the infants’ clothing with his

teeth, like a dog. (See, Exhibit F – Deposition of Maritza Amador, p. 38-40; 68; 126).

Plaintiff Maritza Amador admitted that Gilbert Flores’ actions on the date in question

amounted to child abuse of her defenseless 17-day old baby girl. (See, Exhibit F –

Deposition of Maritza Amador, p. 39; 60). Gilbert Flores’ mother, Carmen Flores, called

9-1-1 and spoke to the dispatcher relating the following information:

• “He’s in the house but I just want him out of here. He beat her up and the baby, the baby’s not even two months and he gave her black eye.”

• “He’s breaking everything in the room… and he’s got a knife; he’s got a knife; got a big knife.”

• “She has a black eye….the baby….he went crazy and tore up

everything. He tore up the Bible and he did that, he’s cursing, cursing, cursing, and he pushed me out of the way and as soon as I left the room, he beat her up again.”

• “There’s blood all over the floor, I don’t know what happened.”

• “Oh God….why does this happen. He even cursed God and tore

the Bible, so I told him the Devil is in him.”

• “He’s staying because he wants to have it out with the Police.” (See, Exhibit B – Transcription of 9-1-1 Calls.).

Gilbert Flores interrupted his mother while she spoke with 9-1-1 and informed the

dispatcher of the following:

• “I got a knife and I’m going to suicide by cop, so bring a SWAT Team… I’m going to die today.”

• “It’s time for me to go.”



• “It’s Gilbert Flores, TDC #1199219, I’m on Parole, so I’m not going back to prison, I’m going to die today, so you better get ready for somebody that’s going to pull the trigger, so you better, so you might as well…I did ten years in the penitentiary maximum-security penitentiary.” (See, Exhibit B – Transcription of 9-1-1 Calls.).

The first police unit to arrive was Deputy Greg Vasquez at 11:46:16. (See,

Exhibit C – Incident Call). Deputy Vasquez was a 14-year veteran with the Bexar

County Sheriff’s Department and had not discharged his firearm in the line of duty prior

to the incident in question. (See, Exhibit D – Deposition of Greg Vasquez, p. 36).

Deputy Sanchez was a 20-year veteran with the Bexar County Sheriff’s Department and

had not discharged his firearm in the line of duty prior to the incident in question. (See,

Exhibit E – Deposition of Deputy Robert Sanchez, p. 17: 60). Deputy Vasquez knew he

was responding to an assault of a female and a child and that the suspect had a knife.

(See, Exhibit D – Deposition of Greg Vasquez, p. 42).

The event timeline from the time Deputy Vasquez first arrived at the scene

(11:46:16) until the time of the fatal shooting (11:58:18) is 12 minutes. (See, Exhibit C –

Incident Detail Report.).

DEADLY FORCE SCENARIO NO. 1

Defendant Deputy Vasquez traveled with haste out of his Tahoe Patrol vehicle,

leaving the keys in the ignition and grabbing his protective shield. Deputy Vasquez went

to the front door and announced, “Sheriff’s Department.” He stepped inside and saw the

family members standing and staring at him, but no one made a comment. Suddenly,

from behind one of the doors, came Gilbert Flores with knife in hand, saying, “I’m not

going back, I just did ten (10) years.” (See, Exhibit D – Deposition of Greg Vasquez, p.

45-46). With his duty firearm in hand, attempted to calm the situation and informed

Gilbert Flores, “Put the knife down, you’re going to be alright.” (See, Exhibit D –



Deposition of Greg Vasquez, p. 46). This constituted Deadly Force Scenario No. 1,

wherein Gilbert Flores posed an imminent threat of death or serious bodily injury to

Deputy Vasquez. However, Deputy Vasquez considered the family members in close

proximity, who were in the potential line of fire, and chose to holster his firearm and take

out his Taser. (See, Exhibit D – Deposition of Greg Vasquez, p. 46).


Deputy Vasquez retreated out of the residence with his shield, taking steps

backwards and continually telling Gilbert Flores to put the knife down. Deputy Vasquez

backs outside of the house and Gilbert Flores slams

the door. Deputy Vasquez informs dispatch that he

needs a negotiator at the scene. (See, Exhibit D –

Deposition of Greg Vasquez, p. 47). Seconds later,

Gilbert Flores opens the front door and exits with

knife in hand, flailing at Deputy Vasquez. Gilbert

Flores is attempting to stab Deputy Vasquez with a

large fixed blade Ozark Trail knife. (See, Exhibit G –

Photograph of the knife in question.). Defendant

Deputy Robert Sanchez arrives at the scene and witnesses Gilbert Flores stabbing at

Deputy Vasquez with the knife. (See, Exhibit E – Deposition of Robert Sanchez, p. 95).

This is Deadly Force Scenario No. 2 wherein either Deputy Vasquez or Deputy Sanchez

would have used deadly force. (See, Exhibit D – Deposition of Greg Vasquez, p. 52-54;

Exhibit E – Deposition of Robert Sanchez, p. 95).




Gilbert Flores, upon seeing Deputy Sanchez on the scene, retreats back toward the

front door to gain entry back in the house. Deputy Sanchez fearing for the imminent

safety of the family inside the residence, discharges his firearm at Gilbert Sanchez, but

misses. (See, Exhibit D – Deposition of Greg Vasquez, p. 54; Exhibit E – Deposition of

Robert Sanchez, p. 106-119). This constitutes Deadly Force Scenario No. 3.


Undeterred from being shot at, Gilbert Flores jumps off the front porch with a

folding chair and his Ozark Trial knife approaching Deputy Vasquez. Deputy Vasquez

blocks the stabs of Gilbert Flores’ knife with his shield and decides to deploy his Taser.

However, the Taser strikes the chair being held by Gilbert Flores and the coils become

entangled in the chair. Deputy Vasquez attempts to strike Gilbert Flores with the Taser

and the Taser falls to the ground. During this incident, Gilbert Flores has attempted to

inflict serious bodily injury and/or death on Deputy Vasquez, by using ten to twelve

overhand lunging slashes with the Ozark Trail Knife which were deflected by Deputy

Vasquez’ ballistic shield. (See, Exhibit D – Deposition of Greg Vasquez, p. 52-54; 60;

Exhibit J – Affidavit of Chris Flores (Decedent’s nephew)). This constitutes Deadly

Force Scenario No. 4. (See, Exhibit D – Deposition of Greg Vasquez, p. 55).


Gilbert Flores picks up the Taser and attempts to activate the Taser at the

deputies. The Deputies retreat by backing up further, knowing how the Taser could be

activated. This is the approximate time the Fleming Video (Exhibit A) commences.

After attempting to activate the Taser at the deputies, Gilbert Flores becomes further

aggravated and throws the Taser in the air. This constitutes Deadly Force Scenario No. 5.



(See, Exhibit D – Deposition of Greg Vasquez, p. 56; Exhibit E – Deposition of Robert

Sanchez, p. 123; 124; Exhibit A – DVD of Incident).


Gilbert Flores then menacingly moves to the Tahoe Patrol Vehicle of Deputy

Vasquez and opens the patrol car door on the passenger side. Both Deputies Vasquez and

Sanchez are aware that Deputy Vasquez’ AR-15 Rifle is in the vehicle and the keys are in

the ignition. The vehicle itself is a deadly weapon. Sgt. Pedraza can be heard over

dispatch ordering Deputies Vasquez and Sanchez “stop him, by all means, stop him”.

This is Deadly Force Scenario No. 6. (See, Exhibit D – Deposition of Greg Vasquez, p.

56-57; Exhibit E – Deposition of Robert Sanchez, p. 174-178; Exhibit A – DVD of

Incident).


Deputies Vasquez and Sanchez continue to command Gilbert Flores to “drop the

knife,” however, Gilbert Flores’ response was “I told you, you would have to kill me.”

(See, Exhibit D – Deposition of Greg Vasquez, p. 57; Exhibit E – Deposition of Robert

Sanchez, p. 178)

Gilbert Flores pulls out the Ozark Trail fixed blade knife from his waistband and

repositions the knife in his left hand with the grip in a stabbing preattack indicator. (See,

Exhibit A – DVD of Incident; Exhibit D – Deposition of Greg Vasquez, p. 57-58; Exhibit

E – Deposition of Robert Sanchez, p. 178-180). Deputy Sanchez shouts the final

command, “I’m giving you another chance, drop the knife.” (See, Exhibit E – Deposition

of Robert Sanchez, p. 186). Gilbert Flores, posed an imminent threat of death or serious

bodily injury by his actions from a totality of the circumstances and Deputies Vasquez

and Sanchez, discharged one round each, fatally wounding the Decedent. (See, Exhibit A–



DVD of Incident; Exhibit D – Deposition of Greg Vasquez, p. 123-150; Exhibit E–

Deposition of Robert Sanchez, p.191-193). This constituted Deadly Force Scenario No. 7.

IV.

UNDISPUTED FACTS

Defendant Deputies VASQUEZ and SANCHEZ assert unto the Court the following

facts are undisputed:

(1) On August 28, 2015, Plaintiffs’ Decedent, Gilbert Flores, had

viciously assaulted his wife, Maritza Amador, and had committed child abuse of the 17-day old daughter, R.M. (See, Exhibit F – Deposition of Maritza Amador, p. 37-40; 59-60);

(2) Decedent’s Mother, Carmen Flores, called 9-1-1 informing the dispatcher that her son, Gilbert Flores, cursed God and tore the Bible so I told him the “Devil is in him.” (See, Exhibit B – Transcription of 9-1-1 calls);

(3) Gilbert Flores interrupted his mother while she spoke with 9-1-1 and

told the Dispatcher directly “I got a knife and I’m going to suicide by cop, so bring a SWAT Team…I’m going to die today.” (See, Exhibit B – Transcript of 9-1-1 Calls.);

(4) Deputy Vasquez arrived at the scene at 11:46. Deputy Sanchez

arrived at the scene at 11:47. The fatal shots were fired at 11:58. From the time Deputy Vasquez arrived at the scene until the shooting, 12, 12 minutes had elapsed. (See, Exhibit C – Incident Detail Report);

(5) Gilbert Flores attempted to inflict serious bodily injury and/or kill

Deputy Vasquez by using overhand lunging slashes with an Ozark Trail fixed blade knife 10 to 12 times. (See, Exhibit D – Deposition of Deputy Greg Vasquez, p. 52-60; Exhibit E – Deposition of Deputy Robert Sanchez, p. 95-99; Exhibit J – Affidavit of Chris Flores);

(6) Gilbert Flores picked up Deputy Vasquez’ taser from the street and

attempted to activate it against Deputy Vasquez and Sanchez, but was unsuccessful. (See, Exhibit A – DVD Video; Exhibit D – Deposition of Deputy Greg Vasquez, p. 56; Exhibit E – Deposition of Deputy Robert Sanchez, p. 124);



(7) Gilbert Sanchez opened the front passenger door of the Tahoe Patrol vehicle of Deputy Vasquez, said vehicle had the keys in the ignition and an AR-15 inside the vehicle. (See, Exhibit A – DVD Video; Exhibit D – Deposition of Deputy Greg Vasquez, p. 56; Exhibit E – Deposition of Deputy Robert Sanchez, p. 125);

(8) During the twelve (12) minute encounter, both Deputies Vasquez and Sanchez commanded Gilbert Flores to drop the knife. But Gilbert Flores defiantly refused stating: “I’m not going back, I just did ten (10) years… I told you, you would have to kill me.” (See, Exhibit D – Deposition of Deputy Greg Vasquez; p. 45-46; 57; Exhibit E – Deposition of Deputy Robert Sanchez, p. 123; 186);

(9) Deputies Vasquez and Sanchez were in imminent fear of death or

serious bodily injury by the actions of Gilbert Flores at the time of the fatal shots. (See, Exhibit D – Deposition of Deputy Greg Vasquez; p. 123; 150; Exhibit E – Deposition of Deputy Robert Sanchez, p. 119; 186-193);

V.

Plaintiffs’ claims are brought pursuant to 42 U.S.C. §1983 alleging Deputies

Vasquez and Sanchez violated Plaintiffs’ Decedent’s constitutional rights by subjecting

to excessive force under the Fourth Amendment. Defendants Vasquez and Sanchez have

affirmatively raised their affirmative defense of qualified immunity for Plaintiffs claims.

VI. QUALIFIED IMMUNITY

The Doctrine of Qualified Immunity shields officials from civil liability so long 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, 231 (2009).

A clearly established right is one that is sufficiently clear, that every reasonable official

would have understood that what he is doing violates that right. Mullinex v. Luna, 577

U.S. ____, 136 S.Ct. 305, 308 (2015). The Court does not require a case directly on

point, but existing precedent must have placed the statutory or constitutional question



beyond debate. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Succinctly stated,

qualified immunity protects “all but the plainly incompetent” or those who knowingly

violate the law. Malley v. Briggs, 475 U.S. 335, 341 (1986). The Supreme Court has

repeatedly instructed not to define clearly established law at a high level of generality.

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). This inquiry must be undertaken in light

of the specific context of the case, not as a broad general proposition. Brosseau v.

Haugen, 543 U.S. 194, 198 (2004)(per curium). Such specificity is especially important

in the Fourth Amendment context, where the Court has recognized that it is sometimes

difficult for an officer to determine how the relevant legal doctrine, here excessive force,

will apply to the factual situation the officer confronts. Saucier v. Katz, 533 U.S. 194,

205 (2001).

In evaluating a qualified immunity defense, the Court conducts a two-prong

inquiry as follows:

(1) Whether the defendant’s conduct violated a constitutional right;

(2) Whether the use of force was objectively unreasonable in light of clearly established law.

Hogan v. Cunningham, 722 F.3d 725, 734 (5th Cir. 2013); Ontiveros v. City of

Rosenberg, 564 F3d 379, 382 (5th Cir. 2009).

Once the defense if qualified immunity is raised, the burden shifts to the plaintiff

to rebut the claim of qualified immunity. Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir.

1992). This is a demanding standard. Vincent v. City of Sulfer, 850 F.3d 543, 547 (5th

Cir. 2005)(cert. denied ___ U.S. ___ 136 S.Ct. 1517 (2016)).

To establish a claim of excessive force, plaintiff must demonstrate (1) an injury;

(2) which resulted directly and only from the use of force that was clearly excessive; and



(3) the excessiveness of which was clearly unreasonable. Deville v. Marcantel, 567 F.3d

156, 167 (5th Cir. 2009). Courts do not analyze a use of force with a 20/20 vision of

hindsight, but rather from the perspective from a reasonable officer on the scene.

Plumhoff v. Ricard, ____ U.S. ___ 134 S.Ct. 2012, 2020 (2014); Mendez v. Poitevent,

823 F.3d 326, 331 (5th Cir. 2016).

An Officer’s use of deadly force is not excessive, and thus no constitutional

violation occurs when the officer reasonably believes that the suspect poses a threat of

serious harm to the officer or to others. Manis v. Lawson, 585 F.3d 839, 843 (5th Cir.

2009). This is an objective standard: the question is not whether the officer actually

believed that the suspect posed a threat of serious harm, but rather a “competent officer

could have believed” as much. City & Cty of San Francisco v. Sheehan, ___ U.S. ___

135 S.Ct. 1765, 1774 (2015); Anderson v. Creighton, 483 U.S. 635, 641 (1987). Courts

do not analyze a use of force with a 20/20 vision of hindsight, but rather from the

perspective of a reasonable officer on the scene. Plumhoff v. Ricard, __ U.S. __ 134

S.Ct. 2012, 2020 (2014). This is because 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. Conner, 490

U.S. 386, 396 (1989). In determining the objective reasonableness of a use of force,

Court’s consider the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight. Hogan v. Cunningham, 722 F.3d

725, 734 (5th Cir. 2013).

Defendant Deputies Vasquez and Sanchez assert that Exhibit A – the video of the

incident is dispositive to their summary judgment motion. See, Scott v. Harris, 550 U.S.



372, 378 (2007). In judging Deputy Vasquez and Sanchez’ conduct based on the

circumstances confronting them, the following has been established:

• Gilbert Flores disobeyed the lawful commands of Deputy Vasquez and Deputy Sanchez to drop the knife on multiple occasions.

• Gilbert Flores violently attacked Deputy Vasquez with an Ozark Trial fixed blade knife attempting to stab him and inflict serious bodily injury and/or death.

• Gilbert Flores informed dispatch and the Deputies that he was on parole and not going back to prison. “I’m going to do suicide by cop, today.”

• Gilbert Flores had attempted to use Deputy Vasquez taser to activate it against the deputies.

• Gilbert Flores opened the front passenger door of the Tahoe Patrol vehicle of Deputy Vasquez where the keys were in the ignition and an AR-15 present in the vehicle.

• Deputy Vasquez and Deputy Sanchez’ supervisors ordered the Flores was not to go back in the residence (for fear of the safety of the family members) and was not to be allowed to go inside the Tahoe Patrol Vehicle. They were informed, “Stop him, by all means, stop him.”

• As Gilbert Flores approaches Deputies Vasquez and Sanchez, he

removes the Ozark Trail fixed blade knife from his waistband and positions the knife from his right hand to his left hand in a pre-attack indicator mode, gripping the handle of the knife.

• Deputy Vasquez and Deputy Sanchez were in imminent fear of death or serious bodily injury at the time they discharged their weapons. (See, Exhibit A – DVD of the incident; Exhibit D – Deposition of Greg Vasquez, p. 123; 150; Exhibit E – Deposition of Deputy Robert Sanchez, p. 119-123; 186-193; Exhibit I – Affidavit of Albert Rodriguez, p.37 – 42).

Defendants assert that analogous qualified immunity precedent supports their

entitlement to qualified immunity. In Mullinex v. Luna, 577 U.S. ____, 136 S.Ct. 305,

308 (2015) the trial court denied DPS Trooper Mullinex’s Motion for Summary



Judgment and the Fifth Circuit affirmed the denial. However, the U.S. Supreme Court

granted certiorari and reversed. The Court held that Trooper Mullinex’s decision to

discharge his rifle at a fleeing fugitive who was attempting to avoid capture at a high rate

of speed and had threatened to shoot police officers, was entitled to the protective shroud

of qualified immunity. The Court reasoned that given the fleeing fugitive’s conduct, that

the Court could not say that only someone “plainly incompetent” or who “knowingly

violates the law” would have perceived a sufficient threat and acted as Mullinex did. Id.

at 310.

In Manis v. Lawson, 585 F.3d 839 (5th Cir. 2009), the trial court denied the

officers’ motion for summary judgment and the Fifth Circuit reversed. The Manis case

involved Officer Zemlik fatally shooting Manis while he sat in a vehicle. Manis

disobeyed the orders to show his hands on multiple occasions and then reached

underneath the seat at the time Officer Zemlik discharged his weapon. The Court held

that Zemlik’s use of force was not excessive as a matter of law, since Manis, in defiance

of the officer’s orders reached under the seat and appeared to retrieve an object which the

officer reasonably believed to be a weapon. The Court then further reasoned that even if

there had been a violation of the Constitution, that the officer acted objectively

reasonable in light of clearly established legal rules at the time of the shooting.

The case of Mendez v. Poitevent, 823 F.3d 326 (5th Cir. 2016) involved a border

patrol agent’s use of deadly force on a subject who disobeyed the officer’s orders,

violently resisted the officer’s attempts to arrest him, broke free and ran away from

border patrol agent Poitevent. Mendez was approximately fifteen (15) feet away from

the border patrol agent at the time the agent fatally shot Mendez. Plaintiffs’ attempted to

focus the analysis on the seconds leading up to the shooting as the Decedent was running



away from the officer. (As is anticipated with the plaintiffs in the case at bar.) The Court,

however, reasoned that the inquiry is not just the seconds leading up to the shooting, but

the entire totality of the circumstances. Id. at 333.

The Fifth Circuit recently addressed an analogous case in Joe Anthony Guerra v.

Sgt. Bellino, 2017 W.L. 2643951 (June 19, 2017)(not published). In Guerra, plaintiffs’

decedent was causing a traffic disruption on a county road wherein witnesses assumed

the decedent was intoxicated. Sgt. Bellino responded to the scene and noticed Guerra

walking in the middle of the roadway. When the officer exited his vehicle, Guerra’s

conduct became menacing and he swung his arms back and forth aggressively. Sgt.

Bellino then drew his duty weapon when Guerra refused to comply to his lawful

commands. At one point, Guerra complied with Sgt. Bellino’s commands to place his

hands on the hood of the car. However, the Officer was unable to determine whether or

not Guerra had anything in his clenched fists. At some point, an individual started cell

phone video of the incident. At approximately one minute into the video, Guerra began

moving in the direction of Sgt. Bellino. One eyewitness testified that Guerra was running

at an angle away from Bellino. In any event, Bellino began shooting less than a second

after Guerra began moving. Guerra was fatally shot and no weapons were found on

Guerra. The trial court denied Sgt. Bellino’s Motion to Dismiss based on qualified

immunity. However, the Fifth Circuit reversed and granted qualified immunity to Sgt.

Bellino. The Court reasoned that in hindsight, Guerra posed no threat, but such a

determination is of no consequence to the qualified immunity analysis. Reese v.

Anderson, 926 F.2d 494, 500 (5th Cir. 1991). The Court, in analyzing the totality of the

circumstances, held that a reasonable officer could have perceived a threat of serious



harm and therefore, Bellino’s actions were reasonable under the circumstances and no

Constitutional violation occurred.

Clayton v. Columbia Casualty Company, 547 F. Appx. 645 (5th Cir. 2013)(not

published), is a paradigm scenario to the case at bar. In Clayton, Plaintiffs’ decedent was

fatally shot by Deputy Johnson as he taunted the deputy to commit suicide by cop. The

undisputed summary judgment evidence shows that Clayton had attacked his girlfriend

with a metal bar, damaged her vehicle, used a knife to cut his neck and threated to shoot

the deputy. When Clayton came out of his home yelling obscenities and taunting the

deputy to shoot him, he was holding a knife at his side. Clayton refused the lawful

commands of Deputy Johnson to stop and drop the knife. Deputy Johnson did retreat at

one point toward the home as Clayton approached him. Ultimately, with Clayton yelling

obscenities and daring the officer to shoot him, Deputy Johnson fired one shot, fatally

injuring Clayton.

Plaintiffs’ emphasized in their opposition to Deputy Johnson’s claim of qualified

immunity that Clayton’s arms were at his side and did not in fact have a knife at the time

he was shot. However, the Court emphasized that the focus of the inquiry is the act that

lead the officer to discharge his weapon. The Court reasoned, “nevertheless, strict

reliance on the precise moment an officer fires his weapon is inappropriate when the

totality of the circumstances is the touchstone of the reasonableness inquiry. Thompson

v. Salt Lake County, 584 F.3d 1304, 1318 (10th Cir. 2009).

The trial court granted Defendant Johnson’s Motion for Summary Judgment

based on qualified immunity and the Fifth Circuit affirmed. The Fifth Circuit reasoned

that Appellants failed to create a material fact on whether “every reasonable official”

would have understood the use of deadly force was objectively unreasonable under the



circumstances and clearly established law. Ashcroft v. al-Kidd, 563 U.S. 731, 742

(2011).

In the case at bar, Gilbert Flores disobeyed all the lawful commands of Deputy

Vasquez and Deputy Sanchez, attempted to inflict serious bodily injury or death on

Deputy Vasquez stabbing him with an Ozark Trail fixed blade knife, attempted to

activate Deputy Vasquez’ Taser against the Deputies, open the passenger side door of the

Tahoe Patrol Vehicle of Deputy Vasquez and continued to curse and taunt the deputies by

saying they would have to kill him. Gilbert Flores posed an imminent threat of death or

serious bodily injury to Deputy Vasquez and Deputy Sanchez from a totality of the

circumstances. Defendants assert that they did not commit a Constitutional violation by

subjecting Plaintiffs’ Decedent to excessive force; and, further that their decision to use

deadly force was not clearly established since not every reasonable official would have

understood that the use of deadly force was objectively unreasonable under the

circumstances and clearly established law. Mullinex v. Luna, 577 U.S. ____, 136 S.Ct.

305, 312 (2015); Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).

WHEREFORE, PREMISES CONSIDERED Defendant Deputy Greg Vasquez

and Deputy Robert Sanchez pray that their motion for summary judgment based on

qualified immunity be in all things granted, that Plaintiffs’ lawsuit be dismissed against

them and for such other and further relief as it may show itself justly entitled.



Respectfully submitted, LAW OFFICES OF CHARLES S. FRIGERIO A Professional Corporation Riverview Towers 111 Soledad, Suite 840 San Antonio, Texas 78205 (210) 271-7877 (210) 271-0602 Telefax Email: [email protected] [email protected] BY: /s/ Charles S. Frigerio CHARLES S. FRIGERIO SBN: 07477500 LEAD COUNSEL HECTOR X. SAENZ SBN: 17514850 ATTORNEYS FOR DEFENDANTS

DEPUTY GREG VASQUEZ AND DEPUTY ROBERT SANCHEZ

CERTIFICATE OF SERVICE I hereby certify that on the 30th day of June, 2018, I electronically sent the foregoing Defendant Deputy Greg Vasquez and Deputy Robert Sanchez’ Motion for Summary Judgment via the CM/ECF System to the following: Mr. Thomas J. Henry Mr. Robert P. Wilson LAW OFFICES OF THOMAS J. HENRY 4715 Fredericksburg Road, Suite 507 San Antonio, Texas 78229 Attorneys for Plaintiffs Mr. Albert Lopez LAW OFFICES OF ALBERT LOPEZ 14310 Northbrook Drive, Suite200 San Antonio Texas 78232 Attorneys for Defendant Bexar County /s/ Charles S. Frigerio

CHARLES S. FRIGERIO


Case 5:15-cv-00810-RP Document 110-1 Filed 06/30/17 Page 1 of 2


EXHIBIT A




§ PLAINTIFFS, §


§ BEXAR COUNTY, BEXAR COUNTY § SHERIFF’S OFFICE, GREG VASQUEZ, § INDIVIDUALLY AND IN HIS OFFICIAL § CAPACITY AND ROBERT SANCHEZ, § INDIVIDUALLY AND IN HIS OFFICIAL § CAPACITY, §

§ DEFENDANTS. §

______________________________________ §

EXHIBIT A

DVD CONTAINING VIDEO OF THE SHOOTING INCIDENT IN QUESTION WHICH OCCURRED ON AUGUST 28, 2015 AT THE RESIDENCE OF 24414 WALNUT PASS IN BEXAR COUNTY, TEXAS.

This document is sent via Fed Ex to the Clerk’s Office.

EXHIBIT NOT AVAILABLE ELECTRONICALLY AND HAS BEEN PLACED IN CIVIL CASE FILE FOLDER.


EXHIBIT B TRANSCRIPTION OF 9-1-1 CALLS








EXHIBIT C INCIDENT DETAIL REPORT






EXHIBIT D DEPOSITION OF

DEPUTY GREG VASQUEZ





















































EXHIBIT E DEPOSITION OF

DEPUTY ROBERT SANCHEZ
























































EXHIBIT F DEPOSITION OF PLAINTIFF

MARITZA AMADOR








































EXHIBIT G PHOTOGRAPH OF THE OZARK TRAIL

FIXED BLADE KNIFE



EXHIBIT H PHOTOGRAPH OF MARITZA

AMADOR’S INJURIES



EXHIBIT I AFFIDAVIT OF EXPERT ALBERT RODRIGUEZ.


















































EXHIBIT J AFFIDAVIT OF CHRIS FLORES








§ PLAINTIFFS, §


§ BEXAR COUNTY, BEXAR COUNTY § SHERIFF’S OFFICE, GREG VASQUEZ,§ INDIVIDUALLY AND IN HIS OFFICIAL § CAPACITY AND ROBERT SANCHEZ, § INDIVIDUALLY AND IN HIS OFFICIAL § CAPACITY, §

§ DEFENDANTS. §

____________________________________§

ORDER

On this day came on to be considered, Defendants DEPUTY GREG VASQUEZ and DEPUTY

ROBERT SANCHEZ’ Motion for Summary Judgment pursuant to Rule 56, Federal Rules of Civil

Procedure and the Court after having considered the Motion, finds said Motion to be meritorious;

IT IS THEREFORE ORDERED, that Defendants DEPUTY GREG VASQUEZ and

DEPUTY ROBERT SANCHEZ’ Motion for Summary Judgment be granted.

SIGNED THIS ______ day of ___________________, 2017.

___________________________________________

ROBERT PITMAN UNITED STATES DISTRICT JUDGE


MARITZA AMADOR A R O T ESTATE OF GILBERT ......2017/07/19 · MARISELA FLORES, CARMEN FLORES A ND ROGELIO FLORES, P LAINTIFFS, V. CIVIL ACTION NO. 5:15-CV-00810-RP BEXAR COUNT Y,

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