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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
BRENDA POWELL,
Plaintiff,
v.
STEPHEN GINGER
Defendant.

Civil Action No. 7:15-cv-00030-O-KA

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

This is an excessive force civil rights case under 28 U.S.C. 1983 brought against Stephen
Ginger, a Wichita Falls police officer, by the Brenda Powell, the mother of Joshua Powell, a twentytwo year old, who died as a result of being shot by Officer Ginger in an incident across the street
from his residence. Upon the parties written consent (ECF-8) this case was transferred to the
undersigned by the District Courts Order of Referral (ECF 9) for the conduct of further proceedings
and the entry of judgment in accordance with 28 U.S.C. 636(c). A private right of action may be
asserted against a police officer who violates federal constitutional or statutory rights while acting
under color of state law. 42 U.S.C. 1983. By her suit Plaintiff asserts that Officer Ginger violated
her sons Fourth Amendment rights by using deadly force against him when he shot him eight
times.
Officer Gingers Motion
Before the Court is Defendants Motion for Summary Judgment. By his motion Officer
Ginger asserts that he is entitled to summary judgment on the basis that no constitutional deprivation
occurred and on the basis of qualified immunity. Plaintiff Brenda Powell has responded and filed
certain objections to the summary judgment evidence tendered by Officer Ginger. Officer Ginger
has likewise file certain objections to summary judgment evidence tendered by the Plaintiff.

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Factual Background
This is euphemistically called a suicide by cop case. Plaintiff Brenda Powell lived with
her son Joshua at her parents house at 2030 Gloria Lane in Wichita Falls. On May 14, 2014,
sometime after 4:30 p.m., Brenda Powell was coming home from work and saw two Mormon
missionaries in her neighborhood. These Mormon missionaries were later identified as Casey Linam
and Daniel Bushman. Powell pulled up beside them on the street and told Linam and Bushman that
her son was an alcoholic, needed help and she believed that they could give him some guidance.
Brenda Powell asked if they could come to her house around 6:30 p.m. When she got home from
work, Joshua became angry with her, became more agitated, and started yelling and cursing at her.
Joshua had been drinking and Brenda told her mother to call the police. At approximately 6:30 p.m.,
the Mormon missionaries, Linam and Bushman, arrived the house. Linam and Bushman observed
Joshua Powell outside the house. Linam, Bushman and Joshua Powell were standing on the sidewalk
by the Nissan truck while Brenda Powell stood up behind them in the driveway. According to
Linam, when they started speaking to Joshua, he was yelling and cursing at Brenda Powell. Linam
and Bushman tried to calm Joshua down by talking to him. According to Bushman, Joshua Powell
acted agitated, fidgety and emotional. At some point, Joshua became aware that the police had been
called. He made statements to Linam and Bushman that he knew the police had been called and he
was ready for cops to come and he would fight them Joshua also made comment that today
was a good day to die. Brenda Powell stayed in the driveway while Linam and Bushman talked
to Joshua and says that she did not hear their conversation. During the entire time Linam and
Bushman talked to Joshua, he was wearing black bladed knuckles with spikes on each hand and was
banging his fists together with the knuckles. Earlier, it was learned that Brenda had taken pictures
that showed that Joshua Powell had what appeared to be one of the black bladed knuckle weapons
on his right hand.

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That evening Officer Stephen Ginger who was working patrol was notified by police
dispatch of a family disturbance call at 2030 Gloria Lane in Wichita Falls. Officer Ginger was told
by dispatch that the callers grandson, Joshua Powell, was drinking and getting out of hand. He was
given a description of Joshua. He set out to respond to the call. He accidentally drove past the
house but turned around and went back to the street and pulled in across the street from the house.
Joshua Powell had seen the officer drive past and according to Bushman became more
agitated. As Ginger pulled up to park, he noticed Joshua stick his head out from around a SUV
parked in the driveway and look at him. This individual immediately started walking toward his
patrol car. He was not running, but he was coming directly towards Officer Ginger in a manner
Ginger describes as with a purpose.
According to Officer Ginger he saw that while Powell coming directly toward him Powells
hands were raised about waistlevel. Officer Ginger says he scanned Powell from top to bottom and
when he got to his waist, he saw Powell had his fists clenched and something that looked like a
bladed object in his right hand. Ginger says he also observed that Powell had a similar bladed object
in his left hand. Officer Ginger says he thought the bladed object in Powells right hand was a knife.
As Officer Ginger was getting out of his car, he unholstered his gun. At this time, Powell was about
twelve (12) feet from Officer Ginger and closing in quickly. As soon as Officer Ginger got out of
the patrol car and cleared the door, which was left open because he did not have time to close, he
started backing up toward the rear of his patrol car to create some space between himself and
Powell. Bushman observed that Officer Ginger took three or four (3 or 4) steps backward. Officer
Ginger pointed his gun at Powell and says he told him in a loud voice to get back and Powell
responded kill me and continued advancing toward Officer Ginger. Bushman heard Officer
Ginger say something to the effect of drop it and stop. Brenda Powell and another eyewitness
says she did not hear Ginger or Joshua say anything. But Brenda says she yelled to Ginger that
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Joshua did not have a weapon. Officer Ginger fired nine shots in rapid succession until Powell
stopped advancing and fell to the ground and died.
Qualified Immunity Analysis
The doctrine of qualified immunity protects government officials sued pursuant to 42 U.S.C.
1983 from liability for civil damages insofar 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) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It
is important to resolve qualified immunity questions at the earliest possible stage in the litigation.
Id. An analysis of the qualified immunity defense requires a two-step approach. First, the threshold
question is whether the facts alleged, taken in the light most favorable to the party asserting the
injury, show that the officer's conduct violated a constitutional right.1 If the allegations could make
out a constitutional violation, the second question is whether it would have been clear to a
reasonable officer that his conduct was unlawful in the situation confronted.2 Thus, an official is
entitled to the defense of qualified immunity insofar as [his] conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would be aware.3
The qualified immunity issue is separate from the merits and can be considered separately
so that even if there is a fact issue as to whether the amount of force was excessive in the merits
context, it is instead to be measured in the qualified immunity context. Further, the Court also
determined that the qualified immunity issue must be decided early to avoid trial since qualified
immunity is immunity from suit as well as immunity from liability.

Keenan v. Tejeda, 290 F.3d 252, 261 (5th Cir. 2002) (citing Saucier v. Katz, 533
U.S. 194, 201 (2001)).

Id.

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

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Summary Judgment Standard

Under Rule 56 (c) of the Federal Rules of Civil Procedure, summary judgment is appropriate
when the pleadings and record evidence show that no genuine issue of material fact exists and that,
as a matter of law, the movant is entitled to judgment. The substantive law will identify which facts
are material. Only genuine disputes about those facts will preclude the granting of summary
judgment. The burden is on the party moving for summary judgment to prove that no genuine issue
of material fact exists. If the moving party meets this initial burden, the burden then shifts to the
nonmovant, who must produce evidence establishing a genuine issue of material fact for trial. The
record before the court must be considered in the light most favorable to the non-moving party.4
However, bare allegations in briefs and pleadings are not sufficient to withstand summary judgment.
The burden of proof for overcoming a qualified immunity defense at the summary judgment stage
in this case rests upon Plaintiff Brenda Powell. Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir.
1992); Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 490 (5th Cir. 2001).
Accordingly, Plaintiff Brenda Powell bears the burden of establishing that the facts show
Officer Ginger violated one of Joshua Powells constitutional rights and the right was clearly
established at the time of Officer Gingers alleged misconduct. Ontiveros v. City of Rosenberg,
Tex., 564 F.3d 379, 382 (5th Cir. 2009); accord Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150
L. Ed. 2d 272 (2001); Pearson, 555 U.S. at 236. To negate a defense of qualified immunity and
avoid summary judgment, the plaintiff need not present absolute proof, but must offer more than
mere allegations. Ontiveros, 564 F.3d at 382 (quoting Reese v. Anderson, 926 F.2d 494, 499 (5th
Cir. 1991)).
Excessive Force Analysis Standards
All claims that law enforcement officers have used excessive force -- deadly or not -- in the

Anderson, 477 U.S. at 248; Doe v. Taylor I.S.D., 975 F.2d 137, 139 n.2 (5th
Cir. 1992); Harrison v. Byrd, 765 F.2d 501, 504 (5th Cir. 1985).
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course of an arrest, investigatory stop, or other seizure of a free citizen should be analyzed under
the Fourth Amendment and its reasonableness standard. Graham v. Connor, 490 U.S. 386, 395,
104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989) (emphasis in original). In Saucier v. Katz, 533 U.S. 194,
the Supreme Court established the proposition that the issue of excessiveness in a police excessive
force case involving an arrest is a two pronged issue. Saucier was later qualified by the Court in
Pearson v. Callahan, 555 U.S. 223, 234-36 (2009) to allow the trial court to consider either of the
two prongs first. To establish the use of excessive force in violation of the Constitution, a plaintiff
must prove: (1) injury, (2) which resulted directly and only from a use of force that was clearly
excessive, and (3) the excessiveness of which was clearly unreasonable. Collier v. Montgomery,
569 F.3d 214, 218 (5th Cir. 2009). The use of deadly force is constitutional when the suspect poses
a threat of serious physical harm to the officer or others. See Tennessee v. Garner, 471 U.S. 1, 11
(1985). In analyzing the reasonableness of the specific use of force, courts must consider the totality
of the circumstances surrounding the officers decision. See Ramirez v. Knoulton, 542 F.3d 124, 128
(5th Cir. 2008). The excessive force inquiry is confined to whether the [officer ....] was in danger
at the moment of the threat that resulted in the [officers use of deadly force]. Rockwell v. Brown,
664 F.3d 985, 991 (5th Cir. 2011) (citation omitted) (emphasis in original). Joshua Powells death
as a result of the shots from Officer Gingers firearm satisfies the injury condition.
Courts must evaluate the officers action from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight. Poole v. City of Shreveport, 691 F.3d 624,
628 (citing Graham, 490 U.S. at 396). The calculus 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,
490 U.S. at 396-97.
It is clear that the use of deadly force, absent a sufficiently substantial and immediate
threat, violate[s] the Fourth Amendment. [W]here the suspect poses no immediate threat to the

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officer ..., the harm resulting from failure to apprehend the suspect does not justify the use of deadly
force to do so.) Reyes v. Bridgwater, 362 F. App'x 403, 409 (5th Cir. 2010) (The cases on deadly
force are clear: an officer cannot use deadly force without an immediate serious threat to himself or
others.). Cole v. Hunter, 68 F. Supp. 3d 628, 643, 2014 U.S. Dist. LEXIS 176515, p. 31 (ND. Tex.
2014, J OConnor). Thus there is both a subjective element5 to the determination as well as an
objective element.6
As the Fifth Circuit ably stated in Rockwell v. Brown, 664 F. 3d 985 (2011), 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, 585 F.3d at 843 (citing Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 382 (5th Cir.
2009)). The excessive force inquiry is confined to whether the [officer or another person] was in
danger at the moment of the threat that resulted in the [officers use of deadly force]. Bazan v.
Hidalgo Cnty., 246 F.3d 481, 493 (5th Cir. 2001) (citing Fraire v. City of Arlington, 957 F.2d 1268,
1276 (5th Cir. 1992) ([R]egardless of what had transpired up until the shooting itself, [the
suspects] movements gave the officer reason to believe, at that moment, that there was a threat of
physical harm.)).
The threat must be immediate; the court must consider the totality of the circumstances,
including relevant information known to the officer. The courts focus is not upon actual risk, but
upon the question of whether the officer could have reasonably believe[d] that the suspect pose[d]
a threat of serious harm to the officer or to others. Harris v. Serpas, 745 F.3d 767, 773 (5th Cir.
2014) (quoting Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011). See also Sanchez v. Fraley,
376 F. App'x 449, 453 & n.1 (5th Cir. 2010) (unpublished) ([I]t was clearly established well before
[2007] that deadly force violates the Fourth Amendment unless the officer has probable cause to

That is what did Officer Ginger believe?

That is what gave Officer Ginger that reason to believe?

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believe that the suspect poses a threat of serious physical harm . . . [which] must be immediate.
(citations omitted) (quoting Bazan ex rel. Bazan v. Hidalgo Cty., 246 F.3d 481, 488 (5th Cir. 2001),
and Tennessee v. Garner, 471 U.S. 1, 11 (1985); Reyes v. Bridgwater, 362 F. App'x 403, 407-09
(5th Cir. 2010); Reese v. Anderson, 926 F.2d 494, 500 (5th Cir. 1991).
The courts inquiry into the officers use of deadly force is limited only to the moment that
he fired his weapon. See Bazan v. Hidalgo County, supra (The excessive force inquiry is confined
to whether the Trooper was in danger at the moment of the threat that resulted in the [Defendants]
shooting.); Faire v. Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992) ([R]egardless of what had
transpired up until the shooting itself, [the suspects] movements gave the officer reason to believe,
at that moment, that there was a threat of physical harm.).
Accordingly, it is the factual circumstances existing in the moments immediately preceding
Officer Gingers first discharge of his weapon that are the material facts that must be determined in
ruling upon the motion for summary judgment. These facts include the elements of speed of Joshuas
approach toward Ginger, his proximity to Ginger at the moment of discharge, Joshuas apparent
demeanor, his body configuration (tilt, lean, arm and hand position), and the appearance of any
object in his hands. These are elements that appear critical to the assessment of the reasonableness
of Gingers perception of the danger to him from Joshuas conduct. There is no video7 of the
incident to connect together the stream of moments of action, the locations of the persons, their
bodies and their movements. There is no audio recording of words spoken or sounds made at the
scene.
Before addressing the summary judgment merit issues, the court must address the parties
challenges to that evidence raised by their recently filed objections.8

The patrol car video was not turned on until after the shooting.

Plaintiffs Objection, ECF-27 and Defendants Objection, ECF-29.

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Plaintiffs Objections

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Included in the exhibits tendered by the Officer Ginger in support of his motion for summary
judgment are a report of an investigating officer, an autopsy report and two reports of two expert
witnesses engaged by Defendant.9 Plaintiff objects to the courts consideration of the investigators
supplemental report and those expert reports incident to its determination of Defendants motion for
summary judgment on the grounds that the reports are clearly hearsay and unsworn. As to the
autopsy and expert reports, Plaintiff additionally urges that they do not meet the hearsay exception
under Evidence Rule 902(11). As such they fail to meet the requisites of Fed. R. Evid. Rules 803(6)
and 902(11), Plaintiff posits that unsworn expert witness reports are inadmissible as summary
judgment evidence citing Queen Trucking, Inc. V. GMC, 2007 U.S. Dist. LEXIS 95082 (N.D. Tex.
2007); Provident Life and Accident Ins. Co. V. Goel, 274 F. 3d 984 (5th Cir. 2001). Further, Plaintiff
objects to the courts consideration of the District Attorneys letter10 relating the circumstance of the
grand jurys no bill because of its irrelevance.
In reply, Defendant Ginger has sought leave of the court to supply affidavits to support the
admissibility of the autopsy and respective expert reports and courts commensurate consideration
of them.(ECF-30). As this request was unopposed, leave was granted. Accordingly, these three
reports shall be considered as a portion of the summary judgment evidence to be considered.
I find that the grand jurys no bill of any criminal complaint against Officer Ginger is
irrelevant to this determination and shall not be considered as part of the summary judgment
evidence.
Defendants Objection
Defendant Ginger has objected to the affidavit of Brenda Powell (now Gamboa) on the
ground that it constitutes a sham affidavit created solely to attempt to create material fact issues in
9

ECF 20, pp. 16-39; Report of Officer John Laughlin; ECF-26 Reports of Fries,
Rodriguez and Lawrence.

10

ECF 20, p. 84.

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opposition to the Defendants Motion for Summary Judgment asserting that the affidavit testimony
in direct conflict with her previous sworn deposition testimony. In support of that proposition, the
affidavit testimony is compared to the deposition testimony. The conflicts relate to the gait of
Joshuas approach toward Officer Ginger, the distance between Joshua and Officer Ginger when the
first shot was fired and when he fell, whether he stopped his advance, whether he raised his hands,
whether he appeared shocked, whether he was armed, where his hands were as he advanced, and
whether Ginger gave any warning or instruction to Joshua. Without summarizing here the conflicts
between Brendas deposition and affidavit testimony that is fully set out in the Defendants
objection, I find that the conflicts are direct and irreconcilable. Due to that irreconcilable conflict,
I conclude that in accordance with Federal Rule 56 (h) paragraphs 10, 11 and 12 of Brendas
affidavit (ECF-26-1) are a sham and should be, and they are hereby STRICKEN and shall not be
considered in ruling upon Defendants Motion for Summary Judgment.
The Issue Defined
What Officer Ginger did perceive and believe and what he objectively should have perceived
and believed in those micro-moments as he exited his vehicle until he discharged his gun is the
issue. His right to qualified immunity and thereby his right to avoid a trial depends upon the
determination of this issue. Does the summary judgment evidence raise a material question of the
reasonableness of Officer Gingers perception and belief that he was in danger of serious bodily
injury or death from the conduct and appearance of Joshua at the moment that he fired his first
shot? That conduct and appearance included the elements of the speed and gait of Joshuas
approach, his apparent aspect and demeanor, his proximity to Officer Ginger, the position of his
hands, what could be seen in his hands, the configuration of his body, and what may have been said
by either before the shot was fired. Each of these elements seem critical to this determination.
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Summary Judgment Evidence Analysis

Annexed to Officer Gingers Motion for Summary Judgment are his affidavit and the
affidavits of two Morman missionaries (named Linam and Bushman) both of whom were
eyewitnesses to the event. Annexed to the Plaintiffs Response to Gingers Motion for Summary
Judgment are affidavit of Brenda Powell11 and the deposition testimony of Jamie Claire Trumpf, a
neighbor, each of whom were also eyewitnesses to the incident. The testimonies of all of the
eyewitnesses present consistent perceptions of the scene and the events preceding Officer Gingers
arrival on the scene. With regard to the facts that occurred from the moment of Gingers arrival and
parking of his patrol car, the observations of Ginger and the two Morman witnesses are in substantial
agreement. They agree as to the speed and gait of Joshuas approach toward Officer Ginger,12 as
to the distance between them at the moment of the guns first discharge,13 as to the position of

11

Brenda Powells affidavit has been stricken under Rule 56(h) as a sham as being
in irreconcilable conflict with her deposition testimony.

12

Officer Ginger interview in Laughlin Report (ECF-20, p.29)(he was walking

with a purpose directly at him.). Ginger affidavit (ECF-20. p.7)(He was not
running, but he was coming directly towards me with a purpose.....closing in
quickly.); Linam Affidavit (ECF-20, p.9)(...proceeded directly towards the
officer at a fast pace.); Bushman affidavit (ECF-20, p.12) (...walked straight
towards it at a fast pace.); Trumpf deposition (ECF-26-2, p. 68) (...he was in a
fast walk. He was not running...);

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Officer Ginger affidavit (When I got out of my car, I pulled my gun out of my
holster. At this time, Powell was about 12 feet from me and closing in quickly.);
Ginger deposition (ECF 26-2, p. 37 (A. My best way to explain it is it wasn't -he wasnt running, he wasnt charging at me, but he was walking with a purpose.
It wasnt like he wasnt strolling over to me. It was definitely with a purpose.);
Linam Affidavit (The officer had his weapon pointed out towards Joshua as he
was backing up, but as Joshua continued walking towards the officer raised his
weapon. Once Joshua got very close to the officer, he fired.); Bushman affidavit
(The police officer got out of his car and took three to four steps backwards
while telling Joshua to drop it or stop. Joshua never stopped moving towards
the police officer. The police officer fired and struck Joshua. Joshua fell right by
driver side door of the police car.).
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Joshuas hands,14 as to the configuration of his body,15 as to what could be seen in Joshuas hands,16
and as to what was said either by Officer Ginger or by Joshua17 in the micro-seconds of the
encounter.
The deposition testimony of Jamie Trumpf does reconcile with the other eyewitnesses as to
the speed or gait of Joshuas approach toward Officer Ginger,18 as to the location of Joshuas
hands,19 but it does not present any detail as to the distance between Joshua and Officer Ginger at
the time of the discharge,20 or of what was said by either of them.21 I find that the minor
14

Officer Ginger affidavit (As Powell was coming toward me, his hands were
raised about waist- level.); Ginger deposition (A...I want to say that they were
somewhere right here, around the waist area, around the side of the waist area.);
(Trumpf deposition (Joshuas hands were at his side as he walked toward
Officer Ginger.); Linam Affidavit (Joshua was raising his hands with the black
bladed knuckles as he walked towards the officer.)

15

Autopsy report (ECF-21, p. 21, 22) (The projectiles struck him traveling from
front to back and downward relative to his body in an upright position and one
bullet entry suggests that the ulnar aspect of the forearm was directed towards
the direction of fire.).

16

Ginger affidavit (The bladed object looked like a knife to me. Powell was
holding in his clenched fists some sort of bladed objects.); Linam affidavit
(raising his hands with the black bladed knuckles...); Bushman affidavit (The
entire time he talked with us he had on black knuckles with spikes.).

17

Ginger affidavit (...told him in a loud voice to get back and Powell responded
kill me...); Bushman affidavit (...police officer...telling Joshua to drop it or
stop.)

18

Trumpf deposition ECF 26-2, p. 68 (He pulls, he pulls up. And as he is sitting in
his car, fixing to get out, I see Josh start heading his way. To me, it appeared he
was ln a fast walk. He was not running ...).

19

Id., p. 71 (Q. ...As Josh was approaching the vehicle of Officer Ginger, did Josh
ever raise his hands? Or where were his hands as he was crossing the street,
approaching the vehicle? A. His arms, as to my recollection, were to his side.).

20

Id..

21

Id., p. 70 (Before you heard the pop, meaning the first gunshot from Officer
Ginger, did you hear any words exchanged between either Officer Ginger and
Joshua or stated by either Joshua or Officer Ginger? A. I did not hear anything.
To my recollection, I don't remember hearing anything.); p. 71 (A. Not that I
heard. I did not hear any conversation between the two of them.).
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discrepancies between the testimony of Jamie Trumpf and the other eyewitnesses are nonconsequential differences in perception and are insufficient to raise a substantial or material fact
issue concerning the reasonableness of Officer Gingers perception and belief that Joshua Powells
movements posed an immediate threat of serious physical harm to Officer Ginger.
Based upon my review of the exhibits submitted in support of and in opposition to Officer
Gingers motion for summary judgment, I find that Plaintiff Brenda Powell has failed to sustain her
burden of proof that there are substantial material facts in dispute both as to Officer Gingers
entitlement to qualified immunity and as to whether his use of force was excessive under the
circumstances or was objectively unreasonable. While this was a tragic occurrence, I conclude that
there is no genuine issue of material fact, that Officer Ginger is entitled to qualified immunity and
that his motion for summary judgement should be GRANTED.
It is so ORDERED that Defendant Gingers Motion for Summary Judgment is hereby
GRANTED, this 4th day of February, 2016.
_____________________________________
Robert K. Roach
UNITED STATES MAGISTRATE JUDGE

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