UNITED STATES DISTRICT COURT

Western District of Texas

San Antonio Division

Cynthia Galvan, individually and

as next friend of Sergio Galvan, a minor,

Plaintiff

v.

City of San Antonio; et al.,

Defendants.

Civil No. SA-07-CA-371-OG.

2008 WL 5352945

2008 U.S. Dist. Lexis ---

Dec. 19, 2008

Prior Order at 2008 U.S. Dist Lexis 26269

ORDER

Orlando L. Garcia, District Judge.

 Pending before the Court is the Motion for Summary Judgment filed by Defendants Richard Smith and Richard Garcia (Dkt.# 61). Plaintiffs have filed a response (Dkt.# 69), and Defendants have filed a reply (Dkt.# 72). After reviewing the record and applicable law, the Court finds that Defendants’ motion should be granted.

I. Statement of the case

 Plaintiffs brought this lawsuit under the Texas Tort Claims Act and 42 U.S.C. § 1983 for the alleged violation of the decedent’s Fourth Amendment right to be free from unreasonable seizure and excessive force. [FN1] Plaintiffs are seeking damages under the Texas wrongful death and survival statutes. Their claims arise from the death of Sergio Galvan, who died after a struggle with police officers on March 23, 2007.

 The Court previously dismissed all claims against Chief McManus, the state claims against Officers Smith and Garcia, and the Section 1983 claims against the officers in their official capacity. (Dkt.# 36). The claims against the City have been addressed under a separate order. The only claims remaining are the Section 1983 claims against Officers Smith and Garcia, in their individual capacity. In their motion, Defendants Smith and Garcia assert that they had reasonable suspicion to detain and probable cause to arrest Sergio Galvan, and they did not use force that was excessive to the need or objectively unreasonable under the circumstances. They further assert qualified immunity, stating they are immune from suit even if there was a constitutional violation because their actions were objectively reasonable.

 Plaintiffs suggest that the Court rule on their Daubert motions prior to addressing the motion for summary judgment. (Dkt.# 69, p. 3). However, the medical opinions being challenged in those motions relate to causation, which is not an issue in the motion for summary judgment. In fact, both sides seem to agree that “the fact that Galvan expired after a struggle with the defendants in and of itself is no evidence that the force used by the Defendants was excessive to the need or that it was objectively unreasonable.” (Dkt. # 61, p. 7; Dkt. # 69, ¶ 53, 55). See Cooper v. Killeen ISD, 2008 WL 194358 *5 (W.D.Tex.2008) (measuring excessiveness vis-a-vis the extent of the injuries is inconsistent with the Fifth Circuit’s excessive force law). The pivotal issue raised in the motion is whether Defendants’ actions were objectively reasonable under the circumstances confronting them at the time. See Scott v. Harris, 127 S.Ct. 1769, 1778 (2007) (all that matters is whether the officer’s actions were reasonable). If the answer is “yes,” they are immune from suit. [FN2]

II.  Summary judgment standard

 Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986). When ruling on a motion for summary judgment, the court is required to view all factual inferences drawn from the record in the light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986); Ragas, 136 F.3d at 458. The Court may not make credibility determinations or weigh the evidence in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097 (2000); Liberty Lobby, 477 U.S. at 255.

 Once the movant has made an initial showing that there is no evidence to supporting the nonmovant’s case, the party opposing the motion must come forward with competent summary judgment evidence to show the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and will not defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996). Nor will unsubstantiated assertions, improbable inferences, or unsupported speculation. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.1994). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Liberty Lobby, 477 U.S. at 248. Disputed fact issues which are “irrelevant or unnecessary” will not be considered by the court in ruling on a summary judgment motion. Id. If the non-movant fails to establish the existence of an essential element of his claim, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

III. Operable facts

 A. Mrs. Galvan’s testimony:

 On March 23, 2007, Sergio Galvan arrived home about midnight after working the evening shift. (Dkt. # 58, Exh. A, Galvan depo. at p. 59). Mrs. Galvan recalls him eating, drinking a couple bottles of beer and sitting at the computer. (Id. at pp. 60-61; 65). She testified that she fell asleep and was unaware of what transpired during the next couple of hours. (Id. at pp. 65- 66). At about 3:00-3:30 a.m., the phone rang and Mrs. Galvan awoke. (Id. at p. 66). Sergio Galvan answered the phone, talked in a loud, agitated tone, and then hung up. (Id.). Mr. Galvan then began pacing nervously back and forth, and appeared very upset. (Id. at p. 70). When she asked what was happening, “[h]e just kept saying, they want me to go outside.... [t]hey want to kill me.” (d. at p. 71). The phone rang a second and third time, but he would not let her answer it, and he “was just really, really nervous.” (Id. at pp. 71, 73). She tried to stop him, but Mr. Galvan shoved his wife aside, and went out the front door. (Id. at pp. 79-81). [FN3] She heard the front gate “bust open” as she shut the door and remained inside. (Id.). Mrs. Galvan then saw “SAPD coming around the corner.” (Id.) When the officers arrived, Mrs. Galvan spoke to one of them and explained what had happened. (Id. at pp. 92- 93). She could hear Mr. Galvan screaming and yelling for help in the distance, but did not know where he was at the time. (Id.). The officer speaking to Mrs. Galvan asked her if he was on any drugs, and she said “no ... I don’t know.” (Id. at pp. 95-96). Two or three officers stayed at her house, while the others went in Mr. Galvan’s direction. (Id. at 102-104). [FN4] Mrs. Galvan did not witness anything thereafter.

 Mrs. Galvan also testified about Mr. Galvan’s state of health and prior drug use. She stated that he had very high blood pressure and was noncompliant with medication. (Id. at p. 134). She always told him that he “was a walking time bomb.” (Id.). Mrs. Galvan testified that her husband drank beer and had a history of using drugs (“possibly” cocaine) when partying with friends or relatives, but he had not done it around her. (Dkt. # 61, Exh. 1, Galvan depo. at pp. 156-57, 178-79).

 B. Statement of non-party witness Guillermo Avalos:

 Mr. Avalos gave a sworn statement after the incident. (Dkt. # 58, Exh. F, bates nos. CITY 0125-26). He lived at 303 Humboldt, in the same neighborhood as the Galvans. He awoke that night and went outside. He heard a man yelling for help. He saw the man walking back and forth really fast. He thought “he was on crack or something.” Mr. Avalos noticed that he was walking very quickly away from two police officers. He heard the officers yelling, and it sounded like they were identifying themselves as SAPD. The man ran away when the officers were within about one block from him. The man continued running back and forth. Mr. Avalos then watched the officers pursue him, but he was too far away to witness anything further until a fire truck and ambulance arrived. He gave his statement the same night.

 C. Officer Smith’s testimony:

 Officer Smith testified that SAPD had received a complaint about shots being fired. (Dkt. # 58, Exh. C, Smith depo. at p. 46). He normally worked solo, but always had a back up when they received a violent disturbance call, where shots may have been fired, or there is a propensity for danger. (Id. at p. 47). The call had been received from a person named Victor Parra, who stated that he heard several shots fired in the area. (Id. at p. 48). Officers Smith and Garcia went to the location, but could not find anything. (Id. at p. 52). They then received another call from the dispatcher, who indicated that she had received numerous 911 hang up calls from 1140 Brunswick Street, which was 1-2 blocks from their location. (Id. at p. 53-55). [FN5] The officers drove to that location, but the residence was quiet. (Id. at p. 55).

They then heard loud moaning in the direction where they had come from. (Id. at pp. 56-57). The officers followed the voice in the dark, checking the yards with their flashlights. (Id. at p. 59). As they came close to the next intersection, they saw a large male running and screaming “help me, help me.” (Id. at pp. 60-61). He appeared to have an object in both hands. Officer Smith believed one object was a phone, but he couldn’t identify the other object. (Id. at p. 62). Because he was running away from them, Officer Smith went back to the car. (Id. at p. 63). He then noticed a woman later identified as Mrs. Galvan standing in front of the house at 1140 Brunswick. (Id.). He was told that the man they saw running was her husband Sergio. (Id. at pp. 63-64). Officer Smith asked if he had any mental problems and she said that he didn’t. (Id.). He also asked whether he had been doing any drugs, and she said “no or I don’t know.” (Id. at p. 64).

Officer Garcia then came back and jumped in the car with Officer Smith so they could catch up to Mr. Galvan. He was still yelling when they reached him. (Id.). Officer Smith tried to engage him in conversation, identifying himself as a police officer and telling him “let us help you,” but he wouldn’t stop. Mr. Galvan threw something he was holding in one hand and began running down the sidewalk again. (Id. at pp. 66-67). Officer Garcia chased him on foot, and Officer Smith drove past him and stopped in front of him. (Id. at p. 67). Mr. Galvan then ran into a yard, between a chain link fence and a vehicle parked in the driveway. He grabbed the fence and began to make a groaning noise. (Id. at p. 70). Officer Smith testified that “[f]rom this point on everything happened very fast.” (Id.). He stated that he was trying to calm Mr. Galvan by talking to him and calling him by name, but Mr. Galvan turned toward him and charged him “at full speed.” (Id. at p. 70).

Officer Smith pushed him back “creating space which allowed [him] to grab [his] pepper spray.” (Id. at pp. 70-71). The officer “gave him a solid one second burst which had no [e]ffect on him.” (Id. at p. 71). Mr. Galvan was still “coming at [him]” so Officer Smith gave him a “second spray and then [Mr. Galvan] was on [him].” (Id.). Mr. Galvan actually got the pepper spray out of the officer’s hand, and at that point they “became physical.” (Id. at p. 71). [FN6] “In just split seconds” Mr. Galvan was colliding with the officer at full force with his upper body. (Id. at pp. 76-77). Officer Smith stated: “I mean, he’s got me. You know, he--he hit me so hard it was just--just unbelievable.” (Id. at pp. 77, 81). [FN7]

After struggling on their feet, both Officer Smith and Mr. Galvan ended up on the ground. (Id. at pp. 78, 82-83). Mr. Galvan was face down, and Officer Smith ended up on Galvan’s left side, trying to bring him under control and to handcuff him. (Id. at p. 78). At that point, Officer Smith looked up and saw Officer Garcia on Mr. Galvan’s right side, also trying to control him. (Id. at pp. 82-84). Officer Smith used “every pain compliance technique [he] could and every manipulation technique [he] could to get his arm behind him” but nothing worked. (Id. at pp. 78-81, 84).

Mr. Galvan kept resisting and trying to get up again. (Id. at p. 84). Officer Smith could not get Mr. Galvan in a position to control him or get his hands behind his back to handcuff him. Mr. Galvan kept struggling and was “extremely strong.” (Id. at p. 85). Officer Smith then asked Officer Garcia to use his TASER, “and [he] realized that he had already done it and it wasn’t hav[ing] any effect on the man.” (Id. at p. 100). At that point, Officer Garcia threw his TASER out of reach and they went back to using physical strength, as Mr. Galvan continued to struggle. (Id.). [FN8] Officer Smith used the modified thumb lock, which should have caused a significant amount of discomfort, but Galvan kept resisting. (Id.).

After several moments, the officers were able to get Galvan’s hands behind his back, and Officer Garcia got the handcuffs on him. (Id.). As soon as they got him handcuffed, Officer Smith rolled him over and tried to talk to him. He knew something was wrong because Galvan had no facial expression, his eyes were blank and he seemed to have labored breathing. (Id. at pp. 100-101). Officer Smith immediately called EMS. (Id. at p. 108). Galvan’s breathing went from labored to “more of a snore,” as Officer Smith prepared for CPR and told EMS to “step it up.” (Id. at p. 109). Galvan then stopped breathing completely. (Id.). The officers used CPR in an attempt to revive him until EMS arrived, to no avail. (Id. at p. 109).

 In addition to his deposition testimony, Officer Smith prepared and signed a sworn statement on the same date as the incident. (Dkt. # 61, Exh. 2; Dkt. # 58, Exh. F, bates nos. 0112-115). The sworn statement is consistent with Officer Smith’s deposition testimony. However, he does conclude his statement by noting that the only injuries he suffered were some scrapes and scratches on his arms. (Dkt. # 58, Exh. F, bates no. 115). He never struck Galvan, and never used any impact weapons on him. (Id.). The only force he used was verbal commands, pepper spray and open empty handed control techniques. (Id.).

Officer Smith also noted that he was a trained hostage negotiator and a certified mental health officer. (Id. at bates no. 112). He had completed CIT [Crisis Intervention Team] training earlier that year. (Id.). He carried a Glock model 22, ASP expandable baton and pepper spray. (Id.). Only the pepper spray was used during the incident in question.

 D. Officer Garcia’s testimony:

 Officer Garcia’s testimony is consistent with the testimony of Officer Smith. Officer Garcia stated that they identified themselves as police officers when they caught up with Galvan. (Dkt. # 58, Exh. D, Garcia depo. at p. 38). Mr. Galvan yelled back, telling them they were not the police, and ignoring their commands. (Id.). As Officer Garcia approached, Officer Smith was trying to talk to Galvan. Then Mr. Galvan let go of the fence, turned toward Officer Smith and charged him. (Id. at p. 51). Officer Garcia then remembered Officer Smith pushing off and spraying Galvan with the OC canister. (Id. at pp. 52-53). Mr. Galvan continued to charge Officer Smith. (Id. at p. 53). Officer Garcia grabbed Officer Smith and tried to pull him back to get him out of the mist from the pepper spray. Mr. Galvan “kept coming forward and they both went to the ground.” (Id.).

Officer Garcia wasn’t sure how Galvan got the pepper spray, but believed he grabbed it from Officer Smith’s hand as he was coming forward. (Id. at pp. 56-57). After Galvan and Smith both went to the ground, Mr. Galvan was trying to get up and Officer Smith was on his left side trying to gain control of his left arm. (Id. at p. 58). Officer Smith was “was trying to put him in a joint lock or a manipulation so that he [could] gain control so that [they] could handcuff him, but [Galvan] was trying to push up ... or get up on his knees and pick himself off the ground.” (Id. at pp. 58-59). Officer Garcia went to the ground to assist, and tried to gain control of the right hand, but “he just kept trying to come up .” (Id. at p. 59).

Galvan was trying to throw his elbows, swing, jerk, and “was just violently moving left and right.” (Id.). Both officers continued to struggle to gain control and Officer Garcia then remembered that he had the TASER. He told Officer Smith he was going to use the TASER, and then shifted his weight to try to keep Galvan on the ground as he reached for the TASER. (Id. at p. 60). Officer Garcia warned Galvan he was going to use the TASER, but Galvan just continued to struggle. (Id . at pp. 61-63). Officer Garcia “applied the TASER twice, to the best of [his] knowledge, and [it] had no effect.” (Id. at p. 65). Officer Smith asked if he had used the TASER, and he said that he did. Because it didn’t have any effect, he threw it off to the side. (Id. at pp. 65-66).

On further examination, Officer Garcia stated that the TASER could have been deployed three times but he believed that he only applied it twice before throwing it aside. (Id. at pp. 69, 77). After he threw the TASER aside, Officer Garcia grabbed Galvan’s right arm and was able to “torque” it back just enough to put one cuff on. (Id. at p. 78). Mr. Galvan kept resisting, and Officer Garcia said “it seemed like he was trying to pull away ... move it back in front or underneath him.” (Id.)

Finally, they were able to get both arms close enough to apply the second handcuff. (Id.). Officer then stood up while Officer Smith stayed on the ground next to Mr. Galvan. (Id.). He caught his breath and called the dispatcher on the radio to advise that he deployed the TASER in drive stun mode. (Id. at pp. 78-79).  [FN9] When he returned, Mr. Galvan had been turned on his back, and he looked pale and his lips were discolored. (Id. at pp. 79-80). Both officers commented that he didn’t look right. (Id.). He did not seem to be breathing normally. (Id. at p. 81).

They got on the radio and requested assistance, but stayed by Galvan’s side and watched his breathing. (Id. at p. 82-83). It appeared that Galvan stopped breathing, and Officer Smith immediately began CPR. (Id. at p. 83). They both continued efforts to revive Galvan, trading off until EMS arrived at the scene. (Id. at p. 84).

 In addition to his deposition testimony, Officer Garcia prepared and signed a sworn statement on the same date as the incident. (Dkt.# 61, Exh. 3). His statement is consistent with his deposition testimony. He does state that when he initially arrived at the scene and heard yelling, he “was thinking that the person yelling might have something to do with the shots fired call.” (Id. at bates no. CITY 267). He also states that when Galvan charged Officer Smith, both of Galvan’s hands were up in an attacking position. (Id. at bates no. 268).

He observed Galvan grab Officer Smith’s hand and thought he had grabbed the OC spray. (Id .). Galvan “had a hold of Officer Smith’s shoulder area and kept pushing Officer Smith back.” (Id.). Then Officer Garcia intervened and pulled Officer Smith back to get him out of the spray cloud and both Galvan and Officer Smith fell to the ground. (Id.). Officer Garcia was a Crisis Intervention Team officer, and had received specific training in how to deal with individuals with mental problems. He also had appropriate training in the use of a TASER, which he carried with him. (Id. at bates no. 266).

 E. Statement of non-party witness Oralia Mata:

 Oralia Mata, a 71-year old woman who lived at 1070 Brunswick, also gave a sworn statement on the date of the incident. She awoke to the sound of a gunshot, and told her husband that “somebody is shooting.” (Dkt.# 61, Exh. 4). She also heard someone arguing. (Id.). She then saw a man “acting kind of funny and running around in circles.” (Id.). “He was by himself and just kept running around and around like he didn’t know what to do, and he kept yelling something.” (Id.). After about five minutes, the police came and the man ran past her house, throwing something in her yard. (Id.). He fell when passing her driveway, got up, and ran into the neighbor’s driveway. (Id.). There was a vehicle blocking her view, and she could hear some yelling and talking but did not see anything else. (Id.).

 F. Autopsy report:  [FN10]

 The medical examiner’s report indicated four sets of lesions, interpreted as marks from a TASER. (Dkt.# 61, Exh. 6). [FN11] There were also minor abrasions to the abdomen and extremities, but “no evidence of significant trauma.” (Id.). The medical examiner noted a blood cocaine level of 0.52 mg/L and a Benzoylecgonine level of>1.0 mg/L. (Id. at p. 5). It was the medical examiner’s opinion that Sergio Galvan died as a result of Excited Delirium Syndrome due to acute intoxication with cocaine. The report explains:

The mechanism of death involves the action of catecholamines on the heart in conjunction with changes in blood potassium and the effects of cocaine on the cardiovascular system, most likely resulting in a cardiac arrhythmia. Reportedly, the individual was involved in a struggle with police officers prior to death, including the use of pepper spray and a cutaneous electrical device (TASER). Contributing to death is the presence of a cardiomyopathy (an enlarged heart) which can also result in a cardiac arrhythmia.  (Id. at p. 6).

Plaintiffs’ expert, Dr. Werner Spitz, opined that Galvan died as a result of positional asphyxia and stated that one of the officers was sitting on Galvan, which caused compression of the chest and inability to breathe. (Dkt. # 69, Exh. A-8, depo. at pp. 20, 46). However, there is no evidence of either officer sitting on Mr. Galvan at the time of the incident.

IV. Applicable law

 Section 1983 provides a federal cause of action for a violation of an individual’s civil rights. It is not a source of substantive rights, but merely provides “a method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 1870 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689 (1979)). To establish a claim under Section 1983, the plaintiff must show a constitutional deprivation by a person acting under color of state law. Gomez v. Toledo, 446 U.S. 635, 638, 100 S.Ct. 1920, 1922 (1980). It is undisputed that defendants were acting under color of state law at the time of the events giving rise to this lawsuit. However, Plaintiffs must prove a constitutional deprivation.

 The Court’s analysis begins by identifying the specific constitutional right allegedly infringed. In this case, it is the Fourth Amendment right to be free from unreasonable seizure and excessive force. Graham, 109 S.Ct. at 1871 (all claims that law enforcement officers have used excessive force in the course of an arrest, investigatory stop or other seizure should be analyzed under the Fourth Amendment and its reasonableness standard).

The test of reasonableness under the Fourth Amendment is an objective one. Los Angeles County v. Rettele, 550 U.S. 609, 127 S.Ct. 1989, 1992-93 (2007) (citing Graham, 490 U.S. at 397). Under the “objective reasonableness” standard, the inquiry is whether an officer’s actions are objectively reasonable in light of the facts and circumstances confronting him. Graham, 109 S.Ct. at 1872. This standard “is not capable of precise definition or mechanical application,” but the Supreme Court has given the courts some guidance on how it may be applied:

Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.... [I]t’s proper application requires careful attention to the facts and circumstances of each particular case, including 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.

The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.... Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance 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, 109 S.Ct. at 1871-72 (citations omitted).

 In this case, as in most cases, Defendants have invoked the doctrine of qualified immunity. This doctrine shields a state official performing discretionary functions from liability, provided his actions meet the test of objective reasonableness. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). Qualified immunity provides protection for all but the plainly incompetent or those who knowingly violate the law. Estate of Davis v. City of N. Richland Hills, 406 F.3d 375, 380 (5th Cir.2005) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092 (1986)).

When asserting qualified immunity in a summary judgment motion, the movant meets his burden simply by pleading in good faith that he is entitled to immunity. Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.2007). The burden then shifts to the plaintiff, who bears the burden of proving that a government official is not entitled to qualified immunity. Id.; Michalak v. Hermann, 422 F.3d 252, 258 (5th Cir.2005). In this respect, the plaintiff may have a difficult task.

 There is a well-established two-step analysis that applies in qualified immunity cases. The first inquiry is whether, viewing the evidence in the light most favorable to the plaintiff, the facts show that the officer’s conduct violated a constitutional right. To show a constitutional violation in an excessive force case, a plaintiff must show (1) an injury; (2) which resulted directly and only from the use of force that was clearly excessive to the need; and (3) the force used was objectively unreasonable. Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir.2008). In this case, Defendants assert that the force used was not excessive to the need, and the force used was objectively reasonable. (Dkt.# 61, p. 7).

 If there is a constitutional violation and the answer to the first inquiry is  “yes,” the second inquiry must be addressed: whether the constitutional right was clearly established at the time of the incident; and, if so, whether the officer’s conduct was objectively unreasonable in light of that law. Scott, 127 S.Ct. at 1774; Cooper, 2008 WL 194358 at *4. In this case, Sergio Galvan’s Fourth Amendment rights were clearly established at the time of the incident, and that is not a disputed issue. The dispute is whether the officers’ conduct was objectively unreasonable, and under the doctrine of qualified immunity, Plaintiffs bear the burden of proof on this question.

V. Application of the facts

 A. Unreasonable seizure:

 The first question is whether there was a constitutional deprivation as a result of an unreasonable seizure. Defendants assert that they clearly had reasonable suspicion to stop and detain Mr. Galvan based on his unusual behavior (yelling and fleeing from them) and to further investigate the 911 calls that had been received by SAPD. Defendants also assert that they had probable cause to arrest Galvan after he attacked Officer Smith. Thus, Defendants contend there is no basis for a Fourth Amendment claim based on unreasonable seizure. (Dkt.# 61, p. 6). Plaintiffs respond by simply arguing that there is no evidence to support Defendants’ arguments. (Dkt.# 69, pp. 16-19). After reviewing the record, however, the Court finds an abundance of evidence to support both reasonable suspicion and probable cause.

 First, it is undisputed that the officers were called to the neighborhood to investigate a report of gunshots at three o’clock in the morning. While the officers were there investigating, they received another dispatch regarding 911 calls coming from the Galvan residence. Because the 911 calls were coming from an address in close proximity to the call regarding gunshots, it was reasonable to believe that they may have been related. The officers went to the Galvan residence and heard yelling in the distance. As the officers followed the voice, Officer Garcia stated he “was thinking that the person yelling might have something to do with the shots fired call.” (Dkt. # 61, Exh. 3, p. 2). When they approached Galvan, it became readily apparent that his behavior was suspicious, and further questioning was necessary. However, Galvan would not talk to them and instead ran from them. When the officers finally caught up with him, Officer Smith tried to talk to Galvan, to no avail.

 Under these circumstances, any police officer would have attempted to stop a person who was yelling and running from them in order to investigate. See Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921 (1972) (“A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.”); see also Illinois v. Wardlow, 528 US. 119, 124, 120 S.Ct. 673 (2000) (“Headlong flight wherever it occurs is the consummate act of evasion ... [i]t is not necessarily indicate of wrongdoing, but it is certainly suggestive of such”).

In fact, it would seem completely illogical for a police officer to walk away from such a situation after receiving several 911 calls and being advised that gunshots had been fired in the neighborhood. See Adams, 407 U.S. at 145 (“the Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape ... [o]n the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response”). Yet Plaintiffs appear to be suggesting that the officers should have done just that--shrugged their shoulders and walked away.

 The standard for reasonable suspicion is “not readily ... reduced to a neat set of legal rules.” Ornelas v. United States, 517 U.S. 690, 695-96, 116 S.Ct. 1657 (1996). However, the Fourth Amendment is satisfied as long as the circumstances at hand, when view objectively, support the officer’s decision. In making this determination, the courts have found certain considerations to be highly relevant, including whether an individual engaged in unprovoked flight upon noticing the police, Wardlow, 528 U.S. at 124, or whether the individual looked nervous or made suspicious movements or gestures. United States v. Watson, 953 F.2d 895, 897 (5th Cir.), cert. denied, 504 U.S. 928 (1992). In viewing the totality of the circumstances in this case, the Court must conclude that Officers Smith and Garcia had reasonable suspicion to stop and detain Sergio Galvan.

After Officers Smith and Garcia caught up with Mr. Galvan, it is undisputed that Officer Smith attempted to talk to Mr. Galvan. This was certainly reasonable and justified under the circumstances. However, Mr. Galvan just moaned and then turned and charged Officer Smith. Again, this is undisputed. The attack on Officer Smith gave rise to probable cause for an arrest, and Galvan’s continued resistance simply reinforced the officers’ justification for an arrest. [FN12]

At that juncture, the officers clearly had probable cause to believe that Galvan had assaulted a police officer and was actively resisting arrest, which completely eviscerates any argument that the arrest constituted an unreasonable seizure under the Fourth Amendment. See Flores v. City of Palacios, 381 F.3d 391, 402 (5th Cir.2004) (“probable cause exists when the totality of facts and circumstances within a police officer’s knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense”). Because there was no constitutional violation based on unreasonable seizure, the Court need not reach qualified immunity on the issue.

 B. Excessive force:

 In determining whether there was a constitutional violation based on excessive force, the questions are whether the use of force was clearly excessive to the need and the excessiveness was objectively unreasonable. The evidence relating to the amount of force that was used on the night in question is based primarily, and almost solely, on the factual accounts provided by the officers. For this reason, the Court has examined the evidence very closely. After such examination, the Court must conclude that the force used by Officers Smith and Garcia was not clearly excessive to the need, and the amount of force used by the officers was objectively reasonable under the circumstances they faced at the time.

 When the officers arrived in the neighborhood, which Mrs. Galvan described as a “rough” neighborhood, they were concerned with investigating the 911 call regarding gunshots. They had already been alerted to a potentially dangerous situation when the 911 hang up calls from the Galvan residence were received. As they started to investigate these calls, they heard screaming and yelling in the distance. Because it was three o’clock in the morning, the officers were following sounds in the night with only flashlights. When they approached Sergio Galvan and identified themselves, he ran and had something in his hands. At that juncture, they were chasing a man in the middle of the night without any knowledge of what he may have been holding or why he was running and yelling.

They did see him throw down one object as he was running, but did not know if he was holding a second object. When the officers finally caught up with Galvan, Officer Smith attempted to communicate with him, as he had been trained to do. However, Galvan turned toward him and charged him at full speed. Officer Smith pushed back and reached for his pepper spray. Two shots of pepper spray did not subdue Galvan, and both officers stated that he grabbed the spray can out of Officer Smith’s hand. Mr. Galvan continued to struggle with Officer Smith, and they both ended up on the ground.

Officer Smith felt like Galvan had endless energy. While Officer Smith was on Galvan’s right side trying to handcuff him, Officer Garcia went to his left side in an attempt to get his left arm. Both officers were using open/empty hand techniques and different thumb or wrist manipulations, but nothing seemed to work. Galvan continued to resist, and was very strong. Officer Garcia then advised Officer Smith that he would go ahead and use his TASER, and he warned Galvan that he would need to use it. Officer Garcia believed he used the TASER in drive stun mode twice.

A download report from the TASER later reflected three pulls of the trigger, and the medical examiner thought there were four marks from the TASER. Nevertheless, the TASER did not subdue Galvan and seemed to have no effect on him at all. In fact, Officer Smith could not even tell the TASER had been deployed, and Officer Garcia had to tell him that he had already used it. At that point, Officer Garcia threw the TASER to the side and the officers continued to use more manipulative techniques in an attempt to gain control. Finally, they were able to get both of Galvan’s hands behind his back to handcuff him. After he was handcuffed, the officers rolled him over on his back to talk to him. Galvan’s face had become ashen and his breathing became labored. Despite the resuscitation efforts by the officers and EMS, Galvan was later pronounced dead.

 It is undisputed that the officers attempted verbal communication first. It is also undisputed that they did not use any physical force until Galvan had attacked Officer Smith. The officer was then forced to defend himself in a physically violent situation. It is further undisputed that Galvan continued to actively resist arrest and was extremely aggressive, using almost superhuman strength, until he was finally handcuffed.

While the officers found it necessary to resort to intermediate weapons (OC spray and TASER) after lesser measures failed, it is undisputed that neither the spray nor the TASER appeared to be effective in subduing Galvan. The officers went back to using different techniques and manipulations of the wrist, thumb and arms until he was handcuffed. In this rapidly evolving, volatile situation, the force used by the officers was necessary, reasonable and appropriate. It was not clearly excessive under the circumstances that they faced at the time.

 While the Court has examined the evidence closely, it cannot simply disregard the officers’ testimony, assume their testimony is untruthful, or imagine facts that are not in the record. In attempting to raise fact issues, Plaintiffs make many assertions that are clearly inconsistent with the evidence. For example, Plaintiffs allege “[t]here is no evidence in this case that Sergio Galvan attacked, struggled with, ... or otherwise used force against either of the Officers after he was detained ... [t]here is also no evidence that he fought with them until they were finally able to handcuff him ... [n]or is there any evidence that he grabbed the can of pepper spray ...”. (Dkt.# 69, p. 4).

However, the only way the Court could possibly reach such a conclusion is to completely disregard the testimony of the police officers. The record does, in fact, show that Galvan attacked Officer Smith, struggled with both officers, used physical force against the officers, and grabbed the pepper spray from Officer Smith.

Plaintiffs further contend that “after trying to leave the presence of the Officers ... Galvan was simply attacked, beaten, pepper sprayed, TASERed, thrown face down on the ground, handcuffed with his arms behind him and left there until he died from positional asphyxia.” (Id. at p. 4). They allege that Galvan “did not attack them, much less defend himself.” (Id. at p. 5). However, there is absolutely no support in the record for these allegations.

 Plaintiffs also contend that Galvan “did not make the first physical contact with the Officers, rather Officer Smith did after Galvan tried to leave.” (Dkt. # 69, p. 21). They allege that “Galvan did not touch either Officer until after Officer Smith pushed him ... [and] Officer Smith immediately used force in response to Galvan’s effort to leave without force.” (Id. at p. 22). Again, there is no factual support in the record for these allegations. Both officers were very clear, in their sworn statements and deposition testimony, that Mr. Galvan charged or attacked Officer Smith. There is no evidence to the contrary. Nor is there any ambiguity in the officers’ testimony that could reasonably lead to an inference that Galvan was simply wandering away or trying to leave.

 Plaintiffs further allege that Galvan was “passively,” rather than “actively” resisting, or that he was resisting in a nonviolent way. (Dkt.# 69, pp. 23, 25). Again, there is nothing in the record to support the conclusion that Mr. Galvan was acting in a passive, rather than aggressive or violent manner. The mere fact that Galvan was not carrying a gun at the time of the incident did not make him passive or nonviolent. [FN13] As the officers testified, Galvan was intensely physical, and used almost superhuman strength in his struggle with the officers.

 Plaintiffs further argue that the officers did not follow the SAPD manual on use of force, and their use of force must therefore be deemed excessive. (Dkt. # 69, pp. 23-24). This argument fails for two reasons. First, it appears that the officers did attempt to use an ascending scale of force based on the circumstances they were facing at the time, which is emphasized in the SAPD manual. [FN14] Second, and more importantly, the legal analysis under the Fourth Amendment is based on the objective reasonableness standard, and not whether an officer follows departmental policies.

 Plaintiffs also allege that the physical evidence raises genuine issues for trial. First, Plaintiffs note that neither officer suffered major injuries; instead, they had minor scratches and bruising. (Dkt.# 69, p. 5). However, the extent of the officers’ injuries does not raise a genuine issue of material fact as to whether the use of force was excessive or their actions were objectively reasonable.

 Plaintiffs further allege that the OC spray was on the hood of the vehicle that was sitting in the driveway next to Galvan’s body rather than on the ground when Detective Perez, one of the investigators, arrived at the scene. (Dkt.# 69, p. 6). As Sgt. Thomas Matjeka explained in his deposition, however, evidence is not moved in an ideal situation, but it may sometimes be moved for some reason, and moving a piece of evidence is not always going to be improper. (Dkt.# 69, Exh. A-5, p. 20). [FN15] Again, this is simply not enough to raise a genuine fact issue on excessive force. Nor do the partial fingerprints on the OC spray raise a genuine fact issue. (Dkt.# 69, Exh. A-2, pp. 30-31). The prints were not clear enough to identify, so they are useless and prove nothing. (Id.). [FN16]

 Plaintiffs also allege that Mr. Galvan could have been holding his cap during the struggle because some of the postmortem pictures depict a cap laying under one of his hands. (Dkt.# 61, Exh. 6). [FN17] This is speculative at best, however, because the pictures were obviously taken after the struggle, after Galvan was handcuffed, after he was turned over, after he received CPR, after he died, after the handcuffs were removed and after EMS had worked on him. Without more than mere conjecture, this does not raise a genuine fact issue.

 Finally, Plaintiffs question the TASER records, which reflect that the TASER’s internal clock was incorrect and did not record the exact time that it was activated. (Dkt.# 69, p. 9). Sgt. Fischer testified that he did not know why the internal clock was not set properly, but stated that SAPD cannot adjust the weapon system internal clock. It “would have to be adjusted by a systems administrator at TASER.” (Dkt.# 69, Exh. A-3, pp. 40-41). Defendants do not dispute, however, that the TASER was used and the time of the incident is not in dispute. Thus, the argument regarding the internal clock is simply academic and does not raise a genuine issue for trial.

 C. Qualified immunity:

While the tragic turn of events and the demise of Mr. Galvan are extremely unfortunate, they do not equate to a Fourth Amendment violation.  [FN18] However, even assuming arguendo that the force used was excessive to the need and there was a constitutional violation, the Court finds that Plaintiffs have not met their burden of overcoming the defense of qualified immunity. The evidence shows that Officers Smith and Garcia acted in an objectively reasonable manner, in light of clearly established law, at the time of the underlying incident. They were facing extremely difficult circumstances, and were forced to make split second decisions in very dark, tense moments in order to subdue and restrain Mr. Galvan, who was actively and forcefully resisting arrest and creating a dangerous situation for everyone involved.

The record reflects a terrible unraveling of events that Defendants attempted to alleviate with different techniques and types of force that certainly appeared reasonable at the time. Other police officers acting in a reasonably objective manner could have done the same thing under the same or similar circumstances. Even if Officers Smith and Garcia were mistaken in the amount of force that they used, their mistakes were reasonable. See Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2158 (2001) (if an officer is mistaken as to whether a particular amount of force is legal under the circumstances, but his mistake is reasonable, he is entitled to immunity).

 It is therefore ORDERED that the Motion for Summary Judgment filed by Defendants Richard Smith and Richard Garcia (Dkt.# 61) is GRANTED. No further claims remain, and final judgment may be entered accordingly.

Notes:

1. Plaintiffs also allege a violation of the deceased’s Fourteenth Amendment rights, and make 1 e vague references to the Eight Amendment “right to be secure against cruel and unusual punishment.” (Dkt.# 18, ¶ 22). However, claims that a peace officer used excessive force during an arrest are to be analyzed under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871 (1989); Gutierrez v. City of San Antonio, 139 F.3d 441, 452 (5th Cir.1998).

2. Qualified immunity is “an immunity from suit rather than a mere defense to liability, and like absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Scott, 127 S.Ct. at 1774 n. 2 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806 (1985)).

3. Mrs. Galvan stated that she “flew” about 4-5 feet when he pushed her.

4. Officer Severns was one of the officers who stayed and spoke with Mrs. Galvan and he prepared a sworn statement after the incident. During his conversation with Mrs. Galvan, she indicated that some guys had come over after her husband came home from work and her husband “drank some beer and maybe did some cocaine” with them outside the house. (Dkt. # 58, Exh. F, bates nos. CITY 0110-11).

5. Mrs. Galvan testified that they lived in a “rough neighborhood .” (Dkt.# 69, Exh. A-7, p. 170).

6. Officer Smith testified that it was “very unusual” to have no reaction to pepper spray. (Id. at p. 73).

7. Officer Smith stated that Galvan was “very strong” and “seemed to have endless energy.” (Id. at p. 82).

8. Even after the TASER was used, Galvan “was still very strong and very resistant and the struggle was still very much engaged.” (Dkt. # 58, Exh. C, Smith depo. at p. 106).

9. This was the first time that Officer Garcia had used a TASER outside of training exercises. (Dkt. # 58, Exh. D, Garcia depo. at p. 15).

10. As noted above, causation is not an issue in the motion for summary judgment, but the autopsy report is part of the summary judgment evidence.

11. Sergeant Richard Fischer, who was deposed on issues relating to the TASER used by Officer Garcia, interpreted the download report provided during his deposition and stated: “I would interpret that as three individual deployments or trigger pulls, each at five second duration for each trigger pull.” (Dkt.# 69, Exh. A-3, pp. 38-39) (emphasis added).

12. While Defendants reinforce their arguments with the affidavit of former chief of police Albert Ortiz, a liability expert in this case, the undisputed facts really speak for themselves on this issue. (Dkt.# 75, Exh. B).

13. At the time the officers approached Galvan, they could not have known with reasonable certainty whether he was carrying a gun or not. However, that does not ultimately affect the Court’s analysis.

14. Officer Smith began by attempting to verbally communicate with Galvan. That did not work and Galvan charged him. Officer Smith defended himself by pushing back and then using the OC spray in an attempt to subdue Galvan. When they were struggling on the ground, the officers tried to use open empty hands control and physical force to gain control. When that did not work, Officer Garcia tried to use the TASER. At no point did the officers resort to an ASP baton or firearm.

15. Sgt. Matjeka testified that they do not arrive until the scene “has already been cold for an hour,” and EMS always comes first to respond to immediate medical needs. (Dkt.# 69, Exh. A-5, pp. 27-28). He explained that “if they have to get an individual to treat him and getting to him requires stepping on a piece of evidence, then it’s certainly not uncommon, and [he] would appreciate them picking [the evidence] up and moving it to a different location. [They] would like them to tell [the crime scene investigators] if they do that and for the most part that does happen, but there are times it doesn’t.” (Id. at 26).

16. Sgt. Matjeka stated that “[f]ingerprint evidence, people believe that we should be able to get fingerprint hypothetically off of the--off of the pepper spray canister. In reality, fingerprint evidence is extremely difficult to get and rarely do we find it on these particular items.” (Dkt.# 69, Exh. A-5, p. 21).

17. Plaintiffs refer to the testimony of Detective McCampbell, who never went to the scene of the accident, and had no personal knowledge of the struggle or the scene thereafter. (Dkt.# 69, Exh. A-4).

18. Defendants’ liability expert, former chief of police Albert Ortiz, reached this same conclusion in his affidavit and Plaintiffs strongly objected. (See Dkt. # 75, Exh. B). However, as the Court noted above, the record was fully developed in this case and the undisputed facts speak for themselves. The Court has thoroughly reviewed and applied the facts independent of any expert opinions. See Gutierrez, 129 F.3d at 447 (“[w]e can still conclude, of course, that one expert accurately expresses what a reasonable police officer would do, but we are not forced to so conclude by the mere presence of an expert’s opinion”).