Page 29 - TPA Journal July-August 2025
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sizing that Latrisha declined her ex-husband’s one of their vehicles. The Deputies rendered aid
advances. Steve went home, but later that evening until emergency medical services arrived a few
Lou Anne began receiving texts from Latrisha minutes later, but Steve ultimately died.
expressing concern that she couldn’t reach Steve
and was worried about him because of his history Appellants asserted claims for warrantless entry,
of excessive drinking and mental illness, namely excessive force, supervisory liability, Monell lia-
depression. Lou Anne went over to check on bility, and Americans with Disabilities Act
Steve, let him use her phone to call Latrisha, and (“ADA”) violations against Deputy Gallardo,
took Steve’s daughter J.W. back to her house at Sheriff Robert Travis Babcock, and Young
Steve’s request. Around 7:00 p.m. Latrisha called County, Texas. Defendants filed a Motion to
Lou Anne again, telling her that Steve sent pic- Dismiss, which the District Court granted.
tures of himself holding a handgun under his chin Appellants timely appealed
and to his head, stating that he “could not bear it
anymore.” Lou Anne went to check on Steve A district court’s Fed. R. Civ. Pro. 12(b)(6) dis-
again. Around the same time, Latrisha called the missal on the pleadings receives de novo review.
Young County Sheriff’s Department to request a In conducting that review, we accept “all well-
welfare check for Steve, informing officers that pleaded facts as true and draw[s] all reasonable
Steve had sent pictures holding a gun to his head. inferences in favor of the nonmoving party.” We
Deputies Gallardo and Dwyer were dispatched to do not, however, “presume true a number of cate-
the Winders’ home, driving in separate vehicles. gories of statements, including legal conclusions;
Deputy Gallardo got there first, where Steve’s mere labels; threadbare recitals of the elements of
niece escorted him to the Winders’ front door. Lou a cause of action; conclusory statements; and
Anne heard that someone was at the door and tried naked assertions devoid of further factual
to retrieve the gun from Steve, but Steve got upset, enhancement.” But while “the court accepts ‘all
yelling “I don’t give a [expletive]. This is my well-pleaded facts as true and draw[s] all reason-
home” and took the gun. Steve was heavily intox- able inferences in favor of the nonmoving party,’”
icated at the time, with a BAC of .173. After hear- “the video depictions of events, viewed in the light
ing Steve shout, Deputy Gallardo opened the door, most favorable to the plaintiff, should be adopted
said “Hello, Sheriff’s Office,” and remained on over the factual allegations in the complaint if the
the porch. He received no immediate response, so video ‘blatantly contradict[s]’ those allegations.”
he called out “Steve” in a louder voice. Steve The parties disputed in a motion to strike whether
responded “What?” from the bedroom, and Lou the body cam video was sufficiently referenced to
Anne emerged saying “We’re right here. Can I the point of being incorporated in the complaint;
help you?” But Lou Anne then saw Steve holding regardless, the District Court noted that it relied
his gun and approaching the bedroom door. She solely on the complaint in dismissing the case and
told Steve to “put it up,” and informed Deputy denied that motion as moot. Appellants neverthe-
Gallardo that “he’s got a gun.” Deputy Gallardo less referenced the video in their complaint and
drew his service weapon, radioed “he’s got a gun, brief, included several screenshots from the video
he’s got a gun,” and told Steve “put it down man, in their complaint, and caselaw supports our con-
put it down.” Deputy Gallardo then shot Steve sideration of the video.
once in the chest. Body cam footage indicates that Qualified immunity protects government officials
the above took place over approximately 28 sec- “from liability for civil damages insofar as their
onds. Deputy Dwyer arrived about forty seconds conduct does not violate clearly established statu-
after. The Deputies entered the bedroom and saw tory or constitutional rights of which a reasonable
Steve on the floor and his handgun on the bed, person would have known.” To determine
which Deputy Gallardo secured and removed to whether a government official is entitled to quali-
July - Aug 2025 www.texaspoliceassociation.com • (512) 458-3140 25
