Recent Texas Cases of Interest to Cities

Note: Included cases are primarily from February 11, 2020 through March 10, 2020.

Texas Tort Claims Act: Jones v. Board of Trustees of Galveston Wharves, No. 01-19-00671-CV, 2020 WL 937016 (Tex. App.—Houston [1st Dist.] Feb. 27, 2020).  This is a Texas Tort Claims Act case where the appellate court determined that the Port of Galveston did not have actual notice of the plaintiff’s claims because she claimed no injury when the port’s employee contacted her after the incident.

Jones did not provide notice of her claim to the port within the required six months. Instead, she claimed the port had actual notice of her claim. To have actual notice, the port must have had subjective awareness of her claim.  The port knew Jones slipped and fell because of water. A security guard informed a port employee investigating the claim that Jones’s right knee and foot were red afterward. However, Jones herself told the port employee that she was ambulatory, was not injured, and did not need medical assistance. Based on the record, the port did not have actual notice and the trial court properly granted the plea to the jurisdiction.

Texas Tort Claims Act: City of Houston v. Lal, No. 01-19-00625-CV, 2020 WL 937026 (Tex. App.—Houston [1st Dist.] Feb. 27, 2020). This is a Texas Tort Claims Act motor-vehicle accident case. The First Court of Appeals affirmed the denial of the city’s plea to the jurisdiction.

An off-duty police officer in his city-issued vehicle collided with the plaintiff when the officer looked at his city-issued cell phone and veered into oncoming traffic. The plaintiff sued and said the officer was in the course and scope of his employment at the time of the accident. The city filed a plea to the jurisdiction on the grounds that the officer was not in the course and scope of his employment with the city, which was denied. The city appealed.

The appellate court noted that “[w]hether a peace officer was on duty or off is not dispositive as to whether he was acting within his employment’s scope.” Garza v. Harrison, 574 S.W.3d 389, 405 (Tex. 2019). Instead, the inquiry focuses on what the officer was doing and why he was doing it. Just the fact that the officer was on call at the time of the accident does not mean he was within the course and scope of his employment.

The appellate court determined that a reasonable factfinder could infer that the officer was acting in the course and scope of his employment when checking his city-issued phone to see if he needed to return to duty. Since the officer was on call, he had to monitor his city-issued phone for incoming work-related calls. The important inquiry is whether there is a connection between the officer’s job duties and the tortious conduct. The appellate court found that there was. Therefore, the trial court properly denied the city’s plea and the appellate court affirmed.

Governmental Immunity/Easement Rights: Harris Cty. v. Park at Westcreek, LP, No. 01-18-00343-CV, 2020 WL 826725 (Tex. App.—Houston [1st Dist.] Feb. 20, 2020). This case is about a dispute over the ownership of an easement. The First Court of Appeals affirmed the trial court’s denial of the county’s plea to the jurisdiction.

The county, Park at Westcreek, L.P. (Westcreek), and several public storage companies all owned part of the same tract of land. The original owners dedicated a 40-feet-wide easement of land that crossed from the main frontage road westward across the tract. The easement was dedicated for road purposes that should be privately owned and maintained but would be dedicated to the public. Furthermore, the dedication stated that if the public ceased to use the right-of-way, then the easement terminated. The county and the public storage companies purchased portions of the tract along the frontage road. Westcreek purchased a portion of the tract to the west of the county’s property. Westcreek was assigned a nonexclusive right to the use of the easement on the southern 20 feet of the county’s property and northern 20 feet of the public storage companies’ property.

Westcreek has access to its apartments from two other nearby roads. It sought permission from the county to construct an entrance on the easement to increase accessibility. The county denied Westcreek’s request.

Westcreek sought a declaration of its legal rights to an easement on land owned by the county. The county filed a cross-action against three public storage companies and Westcreek, asserting the county had adversely possessed the property. Westcreek then amended its pleadings to include a takings claim and that the easement dispute was a boundary dispute. The county settled with the public storage companies. The county then filed a plea to the jurisdiction on the grounds that it was immune from Westcreek’s claims.

The parties all filed various iterations of their pleadings and the county filed a plea to the jurisdiction on the grounds that Westcreek did not plead the necessary legislative waiver and that the county had not waived its governmental immunity from suit. Westcreek responded that the county had waived its immunity by seeking affirmative relief, citing Reata Construction Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006). The trial court denied the county’s plea, but did not state the reason why.

The appellate court first addressed the county’s arguments that it had governmental immunity and that it did not waive governmental immunity by filing its cross-action. The county asserted it was generally immune from suit for land. However, the court determined Reata applied and the county waived its immunity by asserting affirmative claims. When asserting its adverse possession claim to ownership of the easement, the county left the “sphere of immunity from suit for claims against it which are germane to, connected with, and properly defensive to claims” the county asserted. In analyzing this argument, the court determined that the county had filed cross-claims against the public storage companies and Westcreek. Although the county nonsuited its claims against the property storage companies, it did not nonsuit its claims against Westcreek. Additionally, nonsuiting of affirmative claims does not impact the Reata analysis. The court also rejected the county’s argument that it must plead a claim for monetary damages for the trial court to acquire jurisdiction under Reata. Thus, the appellate court concluded the trial court properly denied the county’s plea to the jurisdiction.

Next, the appellate court considered the county’s third argument that it was immune from Westcreek’s constitutional taking or inverse condemnation claim because Westcreek failed to allege an actionable takings claim. The appellate court noted that the county had acknowledged the nature of Westcreek’s property interest necessarily depended on the status of the easement. The county’s argument implicated the underlying merits of the case, which the appellate court determined is inappropriate to consider on a plea to the jurisdiction. Therefore, it overruled the county’s third issue. 

Charter Amendment: Kilgore v. City of Lakeway, No. 03-18-00598-CV, 2020 WL 913051 (Tex. App.—Austin Feb. 26, 2020) (mem. op.). This is an appeal of the granting of a plea to the jurisdiction in a case involving a charter amendment in which the court of appeals affirms the trial court’s order.

In 2014, voters approved amending the city charter to extend the mayoral and city council terms of office from two to three years. After the change was adopted, the city realized that the charter still contained a provision that required members of council to be elected at large by plurality vote in violation of the Texas Constitution, which requires a home-rule city that has council terms that exceed two years to elect its members of council by a majority vote. In response, the city contacted the Texas Secretary of State (SOS) for advice. The SOS recommended that the city pass an ordinance postponing implementation of the three-year terms until the at-large system could be replaced with a place system, necessary to facilitate a majority-vote system, and from the 2018 election and forward, the city pass an ordinance to assign place numbers to the council members. Once this was done, the charter amendment could be implemented and the councilmembers could be elected by majority vote for three year terms.

In April 2018, the city passed an ordinance suspending the charter amendment until the city either established a place system or amended the charter, and provided that the May 2018 election would be conducted under the plurality system. The city never implemented a place system for its council as recommended by the SOS.  Instead, in May 2018, the city passed another ordinance providing that it had just conducted an election for the city’s mayor and two council seats for the purpose of realigning the terms of the mayoral and council seats. The mayor was declared to be serving as a holdover since 2017, two councilmembers would serve as holdovers until their seats were filled by a special election in November 2018, two councilmembers were realigned from three-to-two year terms ending in 2019, and two terms did not need realignment.  The ordinance also provided that the two council candidates receiving the highest number of votes in the November 2018 special election would serve two-year terms and an election in May 2019 would elect the mayor and three councilmembers for two-year terms. In July 2018, the city passed an ordinance ordering a special election in November 2018 to elect two councilmembers.

Kilgore sued the city and its elected officials in their official capacities seeking to enjoin the November 2018 special election. The city filed a plea to the jurisdiction asserting that Kilgore lacked standing to bring suit. The trial court granted the plea to the jurisdiction. Kilgore appealed. The court of appeals determined that Kilgore’s complaints about the postponement of the charter amendment were not moot because the at-large plurality voting of councilmembers for two-year terms was still ongoing and would continue with each subsequent city council election. However, because the charter amendment was void and of no legal effect as it conflicted with the Texas Constitution, it could not be implemented. Additionally, the court found that Kilgore did not have standing to bring the lawsuit as he did not allege some injury distinct from that sustained by the public at large. Accordingly, the court affirmed the trial court’s order.

Contract Immunity: Harlandale Indep. Sch. Dist. v. Jasmine Engineering, Inc., No. 04-19-00638-CV, 2020 WL 1159056 (Tex. App.—San Antonio March 11, 2020) (mem. op.). This is an appeal of the denial of a plea to the jurisdiction in a case involving a breach of contract in which the court of appeals affirms the trial court’s order.

In 2012, Harlandale Independent School District (district) and Jasmine Engineering, Inc. (Jasmine) entered into a professional services agreement (PSA), which was subsequently amended six times. In January 2018, the district informed Jasmine that the PSA was terminated without cause. Jasmine then sued the district for breach of contract, alleging that the PSA required a finding of cause to terminate. The district filed a plea to the jurisdiction and attached a final investigative report by the Texas Education Agency (TEA), which made findings and conclusions that the district and its representatives violated state law when the district entered into and later amended the PSA. The district argued that Jasmine could not demonstrate a valid waiver of the district’s governmental immunity because, according to the TEA, the PSA was unauthorized by law and improperly executed, and a contract made in violation of the law does not waive governmental immunity. The trial court denied the plea and the district appealed.

The court of appeals upheld the trial court’s judgement finding that while the TEA has statutory authority to initiate investigations into contracting matters, make findings, and impose sanctions pursuant to its findings, it’s findings do not bind a court or the parties in a contract dispute, so as to deprive a trial court of jurisdiction. Because the district did not ask the trial court to determine whether the PSA was entered or amended in violation of state law, the district did not meet its burden to establish the trial court lacked subject matter jurisdiction.

Immunity: City of San Antonio v. Riojas, No. 04-19-00220-CV, 2020 WL 907573 (Tex. App.—San Antonio Feb. 26, 2020). This is an interlocutory appeal of the denial of a plea to the jurisdiction in a case involving a motor vehicle accident in which the court affirms the trial court’s order. 

Officer Tristan was driving his patrol vehicle on the freeway. He activated his emergency lights after he moved to an exit lane and traffic began to slow down for no obvious reason. This in turn caused his vehicle’s dash cam to begin recording and his microphone to be activated shortly thereafter. In his affidavit, Officer Tristan stated that, around the time he turned his lights on, he saw a white vehicle driven by Olvedo crossing several lanes of traffic in an attempt to exit the freeway. However, the dash cam video showed Olvedo, who was driving a white car, moving into the far-right main lane and breaking for unknown reasons. The video also showed another white car next to Olvedo merging into Olvedo’s lane, cutting her off, and briefly stopping before driving away. Olvedo then suddenly crossed two sold white lanes separating the exit lane from the three main lanes and exiting the highway. Officer Tristan concluded that Olvedo had made an improper lane change and impeded traffic behind her. After Olvedo exited, Officer Tristan radioed a nearby police officer to pull her over and ticket her. 

While Officer Tristan was watching Olvedo in the right lane, Riojas was driving his motorcycle in the far-left lane directly behind a car driven by Vela. Riojas and Vela were behind Officer Tristan. Riojas saw Vela braking, and took an evasive action to avoid hitting her. He then lost control of his motorcycle, fell off, and came to rest near a concrete barrier. His motorcycle slid and hit the back of Vela’s car. As Officer Tristan maneuvered his vehicle to the location where Riojas was located, he remarked that a white vehicle, presumably Olvedo’s car or the other car, had caused the accident.  Three other people – Vela and two unidentified men – stopped to help Riojas. The unidentified men approached Officer Tristan and told him that they believed the wreck was his fault and that by activating his emergency lights, he scared everybody on the street. Vela stated that he slowed down because the car in front of her slowed down. Officer Tristan stated that he turned on his lights after he saw Rioja’s motorcycle sliding, but his police report provides that he saw the motorcycle after he turned on his lights.

Riojas sued the city for his injuries, and later amended his petition to include Olvedo and the owner of the car she was driving as defendants. The city filed a plea to the jurisdiction arguing that the city was immune because: (1) the accident was not caused by Officer Tristan’s activation of his emergency lights and therefore did not arise from the operation or use of a motor-driven vehicle; and (2) officer Tristan performed a discretionary duty in good faith and was entitled to official immunity. The trial court denied the plea, and the interlocutory appeal followed.

First, the court first looked at whether liability was waived under the Texas Tort Claims Act’s provision for personal injury “arising” from the operation or use of a motor-driven vehicle. The court initially reviewed the city’s argument that the eyewitnesses’ statements were speculative and conclusory such that they did not raise a fact issue that anything Officer Tristan did caused Vela or the motorist in front of her to brake. The court concluded that the eyewitnesses’ statements were not speculative or conclusory because the eyewitnesses were physically present in the moments leading up to the accident and immediately afterward, and that their opinions were based on their perceptions that there was no reason for Officer Tristan to activate his lights, and that he scared everybody on the street by doing so. As such, the eyewitnesses’ opinions presented more than a scintilla of evidence that the accident would not have occurred but for Officer Tristan unexpectedly and inexplicably activating his emergency lights.

The court then looked at the city’s argument that Officer Tristan’s use of his vehicle was merely a condition that made the accident possible. In finding that Officer Tristan’s operation or use of his vehicle did not merely furnish a condition that made the accident possible, the court distinguished this case from Texas Supreme Court precedent. The court found that there was evidence that Rioja’s wreck occurred contemporaneously or nearly contemporaneously with Officer Tristan’s activation of his lights under circumstances that made two eyewitnesses conclude that Officer Tristan’s operation or use of his vehicle triggered the wreck. 

The court also addressed the city’s argument that Officer Tristan’s conduct was too attenuated from the wreck to have caused it because Rioja’s wreck occurred “three lanes away” from Officer Tristan’s patrol vehicle, Rioja’s motorcycle did not strike Officer Tristan’s vehicle, and the wreck was too geographically and temporarily removed from Officer Tristan’s activation of his emergency lights to have arisen from that action. The court determined that because the Transportation Code requires drivers to stop and remain standing until a police vehicle displaying its emergency lights drives away, the city is unable to show as a matter of law that no vehicle in the far-left lane was required to brake in response to anything Officer Tristan did in the far-right exit lane. 

Second, the court addressed the city’s claim that it is immune from Rioja’s claims because Officer Tristan is entitled to official immunity. The court applied the “need to take action” versus the “risk of harm the action posed to the public” analysis to determine if Officer Tristan acted in good faith so as to qualify for official immunity.  The court concluded that Officer Tristan’s affidavit was nothing more than a “simple subjective pronouncement of good faith” that was not supported by a showing that he needed to balance the need he perceived with the potential risk posed by his chosen course of action. As such, he was not entitled to official immunity.

Finally, the court concluded that Rioja’s allegations against  a newly added defendant did not constitute clear, deliberate, and unequivocal admissions that essentially amounted to an abandonment of his original claims against the city.

Municipal Court: Chapa v. State, No. 05-19-00609-CR, 2020 WL 1129980 (Tex. App.— Dallas March 9, 2020) (mem. op.). This is an appeal of a municipal court conviction in which the court of appeals affirmed the trial court’s order.

Chapa was cited by City of Carrolton Police for operating a motor vehicle with an expired registration. Chapa pled not guilty, and, following a jury trial in the city’s municipal court of record, was found guilty and assessed a fine. Chapa timely appealed to the county court of criminal appeals arguing that the municipal court’s judgement should be reversed because he was prevented from registering his vehicle by the Texas “scofflaw” statute, Section 502.010 of the Texas Transportation Code, which allows a county assessor to deny vehicle registration to individuals with outstanding fines or warrants. The county court of criminal appeals found that Chapa failed to preserve error for appeal by not filing a reporter’s record and affirmed the municipal court’s judgement.  Chapa appealed.

In the county court, Chapa presented ten issues broadly contending that his conviction for operating a motor vehicle with an unexpired registration was improper because he was prevented from renewing his registration. However, in his motion for a new trial to the court of appeals he only raised four issues and failed to raise the issues regarding his inability to register his vehicle due to state law. Because he failed to raise these issues, the court found that he forfeited these issues. For the issues he did raise, the court found that Chapa failed to provide an argument or legal authority to support his position and failed to provide a court reporter’s record that would allow the court to assess his claims.  Accordingly, the court affirmed the judgement of the county court of criminal appeals.

Abuse of Official Capacity: Becker-Ross v. State, No. 06-19-00108-CR, 2020 WL 130588 (Tex. App.—Texarkana Jan. 13, 2020). Rosena Becker-Ross, city administrator for the City of Mount Enterprise was found guilty by a jury of three counts of abuse of official capacity for pressuring the city marshal, Parker Sweeney, to write a certain number of traffic tickets within a specified period even though traffic-offense quotas are illegal under Section 720.002 of the Texas Transportation Code. On several occasions, using texts and emails, the city administrator demanded the marshal write more traffic citations because it affected the city’s budget, her salary, his salary, and his job. This continued even after the marshal informed the city administrator and the city council of Section 720.002 of the Transportation Code. Eventually, the marshal was fired.

The city administrator appealed her convictions stating that there was not legally sufficient evidence to support the jury’s verdict, the trial court erred in not granting her motion to quash because there was inadequate notice of the offense she was charged with, and there was an error in the jury charge.  The court of appeals overruled all the city administrator’s arguments and affirmed the trial court.

The court stated that the evidence presented to the jury was not legally insufficient because there was plenty of evidence to show the city administrator was subject to Section 720.002 of the Texas Transportation Code. Her argument that she did not have authority over the marshal was not applicable because Section 720.002 did not impose such a requirement. Also, her argument that she did not have the required mens rea to receive a benefit from Section 720.002 was insufficient because the evidence showed that she was the highest paid city official, her salary was paid from the city’s budget, and a large part of the budget was based on traffic ticket fines. This showed that she intended to obtain a benefit of maintaining her higher salary by violating Section 720.002.

The court also found that the trial court did not err in not granting the motion to quash since there was adequate notice to the city administrator in the information concerning her intended benefit for the imposition of a traffic-offense quota. The State of Texas was not required to be detailed on how the city administrator benefited since “benefit” is defined in the Texas Penal Code and it is presumed the defendant is on notice of statutory definitions. Also, the State’s information tracked the statutory language and set forth each and every element the State was required to prove at trial.

Lastly, the court determined there was no error in the jury charge when the trial court included the laws of parties to the jury charge since the court already determined that there was sufficient evidence showing the city administrator’s guilt as a primary party to the offenses and the city administrator, herself, stated that she would not be the only one going down.

Texas Torts Claim Act: Crockett Cty. v. Damian, No. 08-19-00145-CV, 2020 WL 814013 (Tex. App.—El Paso Feb. 19, 2020). On March 2, 2017, Miguel Damian died from injuries he sustained at work after he was run over by a road maintainer operated by Adam De La Garza (De La Garza), a Crockett County employee.

Appellees filed their original petition to bring suit against De La Garza, Crockett County, and the Crockett County Road Department for the wrongful death of Damian. The original petition raised only state-law torts claims under the Texas Tort Claims Act (TTCA). The county’s original answer raised the affirmative defense of governmental immunity and argued any claims against De La Garza are barred by Section 101.106(e) of the TTCA. The county filed a motion to dismiss pursuant to Section 101.106(e), admitting that De La Garza was a county employee and that the county was entitled to dismissal of all claims against De La Garza because the Appellees failed to elect between suing the county and its employees before filing suit. Appellees did file an amended petition which added a state common-law negligence claim against De La Garza in his individual capacity for acts committed outside the course and scope of his county employment, drinking excessively and staying up late the night before he was required to report to work early the following day. The Appellees conceded the tort claim brought against De La Garza in his official capacity in the original petition required dismissal because it was brought under the TTCA, however, their subsequent state common-law negligence claims against De La Garza in his individual capacity was not subject to the TTCA and should not be dismissed. The trial court agreed with the Appellees and dismissed the tort claims based on acts committed within De La Garza’s employment, but denied the motion as to tort claims based on acts committed outside of the scope of his county employment.

In this interlocutory appeal, the court of appeals reversed the trial court’s order denying in part the county’s motion to dismiss and render judgment dismissing all of the Appellees’ state-law-tort claims against De La Garza. The court found that the trial court should have also dismissed the tort claims based on acts committed outside of the scope of De La Garza’s county employment because Section 101.106(e) of the TTCA requires plaintiffs to choose, before filing suit, between suing a governmental entity or suing an employee in his individual capacity. If the plaintiffs do not make the choice before filing suit, the governmental unit may file a motion to dismiss all state-law-tort claims against its employee by effectively confirming the employee was acting within the scope of employment and that the government, not the employee, is the proper party. The county did this when it filed its motion to dismiss.  Because the Appellees filed against both, instead of filing only against De La Garza in his individual capacity, the Appellees forfeited all state-law negligence claims and are barred from bringing any state-law-tort claim against De La Garza regarding the same subject. The court also distinguished this case from Texas Dep’t of Aging & Disability Svs. v. Cannon, 435 S.W.3d 411(Tex. 2015) because Cannon added a claim under 42 U.S.C. §1983, a federal claim, which is a non-state-law-tort claim, and therefore was not subject to the dismissal of the state-law-torts claim under the TTCA.

Junked Vehicles: Tucker v. City of Corpus Christi, No 13-18-00328-CV, 2020 WL 948364 (Tex. App.—Corpus Christi Feb. 27, 2020). On August 5, 2013, a municipal court judge ordered the seizure of four vehicles located on property owned by Danis and Beverly Tucker. The Tuckers contended that the vehicles were antique cars that were not subject to seizure under the city’s junked vehicle ordinance. Their initial suit against the city was dismissed on August 5, 2015, for want of prosecution. The Tuckers filed another lawsuit on August 4, 2017, alleging conversion, trespassing, invasion of privacy, due process violations, fraudulent misrepresentation of the city’s code of ordinances, and the taking of personal property without just compensation. The city filed a plea to the jurisdiction contending that the Tuckers’ claims were barred by the two-year statute of limitations in Civil Practice and Remedies Code Section 16.003. The trial court granted the city’s plea to the jurisdiction and the Tuckers appealed.

In their sole issue on appeal, the Tuckers argued that the trial court erred in dismissing their takings claim because their suit was filed within the applicable limitations period. The court of appeals first, in reliance on the Texas Supreme Court’s decision in Prairie View A&M v. Chatha, 381 S.W.3d 500 (Tex. 2012), concluded that the statute of limitations is a jurisdictional requirement in suits brought against a governmental defendant. The Tuckers argued that their takings claim is governed by a ten-year statute of limitations, instead of two years. The court noted that the ten-year statute of limitations cited by the Tuckers applies to a governmental entity’s taking of real property, not personal property like the automobiles at issue. Under Civil Practice and Remedies Code Section 16.003, the applicable statute of limitations was two years. Further, the court held that the Tuckers’ initial lawsuit, which was dismissed for want of prosecution, did not toll the limitations period.

Because the Tuckers’ lawsuit was filed on August 4, 2017, almost four years after the alleged taking and well beyond the two-year statute of limitations, the court concluded that the Tuckers failed to comply with a statutory prerequisite to suit, thus negating jurisdiction. The court of appeals affirmed the trial court’s granting of the city’s plea to the jurisdiction.

Wrongful Death: Harris Cty. v. Coats, No. 14-17-00732-CV, 2020 WL 581184 (Tex. App.—Houston [14th Dist.] Feb. 6, 2020). This is a Section 1983/wrongful death case where the Fourteenth Court of Appeals reversed, in part, a jury award against the county and its deputy.

Jamail and his girlfriend were using cocaine when Jamail felt ill. Jamail exited through a window and called 9-1-1 from a public phone. However, when the emergency medical technicians (EMTs) arrived, Jamail ran from the area to a nearby Burger King. Deputy Saintes arrived after a disturbance call, handcuffed Jamail and walked him to the ambulance. When they neared the ambulance, Jamail became combative and attempted to run. Multiple deputies arrived and assisted Deputy Saintes to subdue Jamail. EMTs gave Jamail an injection of a sedative. Jamail was seen breathing normally. The parties dispute whether Deputy Vailes’ boot was on Jamail’s nose and mouth at the time. However, after a short while, he could not be roused. He was transported to a nearby hospital where he died. The family sued. Multiple individuals and parties settled out or were dismissed based on immunity. A jury trial was held against the county and Deputy Vailes. The jury found for Jamail’s family. The county and Deputy Vailes appealed.

The court first determined no county policy, custom, or practice existed to establish Section 1983 liability as to the entity. Normally, single incidents cannot create a policy, custom, or practice. As far as constables go, the fact that a constable’s jurisdictional reach is throughout the county does not support the trial court’s conclusion that the Precinct Four Constable is a law enforcement final policymaker for Harris County. Jamail’s burden was to identify a final policymaker who speaks on law enforcement matters for the local government unit at issue—Harris County, not simply a precinct.

As to Deputy Vailes, the court held some evidence existed that Deputy Vailes placed his boot on Jamail’s face when he was already handcuffed. The law was sufficiently clear that every reasonable official would understand (as did those who testified) that stepping on the nose and mouth of someone who is lying on the ground, likely sedated, handcuffed, and unresponsive, with enough force that the person’s neck touches the ground, would constitute an excessive force violation. Therefore, Vailes was not entitled to qualified immunity on that claim. However, the evidence was insufficient that Vailes’ actions caused Jamail’s death. Deputy Vailes argues that Jamail died because of acute cocaine toxicity, as the medical examiner concluded following Jamail’s autopsy. In cases alleging medical injury or death, expert testimony regarding causation is generally the norm and Jamail’s family did not produce any regarding the cause of death. The fact that Vailes’ boot was placed on Jamail, when he was already non-responsive is insufficient to justify the jury award against Vailes as to Jamail’s death. Because of the alterations to the judgment, the court remanded for a reconsideration of the attorney fee award.*

*Indicates case summaries taken largely from the work of the Law Offices of Ryan Henry, PLLC, and reprinted with permission from Ryan Henry.  To sign up for the firm’s blog, go to