Salazar V The City of Austin; Thomas Brown; Elias Robles

Case 1:20-cv-00730 Document 1 Filed 07/07/20 Page 1 of 2
CAUSE NO. D-1-GN-20-003037
IRIS E. SALAZAR,
IN THE DISTRICT COURT
INDIVIDUALLY, AND AS
INDEPENDENT ADMINSTRATOR OF
THE ESTATE OF LESLIE YOLANDA
SALAZAR
§
Plaintiff,
§
§
V.
§
TRAVIS COUNTY, TEXAS
§
THE CITY OF AUSTIN, TEXAS,
THOMAS BROWN, ELIAS ROBLES
§
Defendants
§
98TH JUDICIAL DISTRICT
DEFENDANTS' NOTICE OF REMOVAL
TO THE HONORABLE JUDGE OF SAID COURT:
Please take notice that the Defendants have, pursuant to federal law, filed with the clerk of
the United States Court for the Western District of Texas, Austin Division, a Notice of Removal,
a copy of which is attached and filed with this document, and that this action is removed to United
States District Court for trial as of today, July 7, 2020. This court is respectfully requested to
proceed no further in this action, unless and until such time as the action may be remanded by
order of the United States District Court.
RESPECTFULLY SUBMITTED,
ANNE MORGAN, CITY ATTORNEY
MEGHAN RILEY, CHIEF OF LITIGATION
/s/ H. Gray Laird III
H. Gray Laird
Assistant City Attorney
State Bar No. 24087054
gray.laird@austintexas.gov
City of Austin Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-1342
Facsimile: (512) 974-1311
ATTORNEYS FOR DEFENDANTS
Case 1:20-cv-00730 Document 1 Filed 07/07/20 Page 2 of 2
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties, or their attorneys
of record, in compliance with the Texas Rules of Civil Procedure, this 7th day of July 2020, as
follows:
Via e-Service and/or facsimile:
Scott S. Cooley
Texas Bar No. 00796394
Jackie P. Paltrun
Texas Bar No. 24087140
512 E. Fourth St.
Lampasas, Texas 76550
Tel. (512) 556-6228
Fax. (844) 318-6073
Scott@lampasaslawyer.com
ATTORNEYS FOR PLAINTIFF
/s/H. Gray Laird III
H. Gray Laird
2
Case 1:20-cv-00730 Document 1-1 Filed 07/07/20 Page 1 of 2
JS 44 (Rev. 06/17)
CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
Iris E Salazar, Individually and as Independent Administrator for Estate
City of Austin, Thomas Brown and Elias Robles
of Leslie Yolanda Salazar
(b) County of Residence of First Listed Plaintiff
Travis
County of Residence of First Listed Defendant
Travis
(EXCEPT IN U.S. PLAINTIFF CASES)
(IN U.S. PLAINTIFF CASES ONLY)
NOTE:
IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number)
Attorneys (If Known)
Scott S Cooley (Attorney of Record), MARTIN MILLICAN COOLEY,
H Gray Laird, Assistant City Attorney (Attorney of Record)
PLLC; 512 E Fourth St., Lampasas Texas 76550. Phn: 512-556-6228;
City of Austin Law Dept, PO Box 1546, Austin Tx 78767-1546
Fax: 844-318-6073
Phn: 512-974-1342 Fax: 512-974-1311
II. BASIS OF JURISDICTION (Place an "X" in One Box Only)
III. CITIZENSHIP OF PRINCIPAL PARTIES
(Place an "X" in One Box for Plaintiff
(For Diversity Cases Only)
and One Box for Defendant)
1
U.S. Government
3 Federal Question
PTF
DEF
PTF
DEF
Plaintiff
(U.S. Government Not a Party)
Citizen of This State
1
1
Incorporated or Principal Place
4
4
of Business In This State
2 U.S. Government
4 Diversity
Citizen of Another State
2
2 Incorporated and Principal Place
5
5
Defendant
(Indicate Citizenship of Parties in Item III)
of Business In Another State
Citizen or Subject of a
3
3 Foreign Nation
6
6
Foreign Country
IV. NATURE OF SUIT (Place an "X" in One Box Only)
Click here for: Nature of Suit Code Descriptions.
CONTRACT
TORTS
FORFEITURE/PENALTY
BANKRUPTCY
OTHER STATUTES
110 Insurance
PERSONAL INJURY
PERSONAL INJURY
625 Drug Related Seizure
422 Appeal 28 USC 158
375 False Claims Act
120 Marine
310 Airplane
365 Personal Injury
of Property 21 USC 881
423 Withdrawal
376 Qui Tam (31 USC
130 Miller Act
315 Airplane Product
Product Liability
690 Other
28 USC 157
3729(a))
140 Negotiable Instrument
Liability
367 Health Care/
400 State Reapportionment
150 Recovery of Overpayment
320 Assault, Libel &
Pharmaceutical
PROPERTY RIGHTS
410 Antitrust
& Enforcement of Judgment
Slander
Personal Injury
820 Copyrights
430 Banks and Banking
151 Medicare Act
330 Federal Employers'
Product Liability
830 Patent
450 Commerce
152 Recovery of Defaulted
Liability
368 Asbestos Personal
835 Patent Abbreviated
460 Deportation
Student Loans
340 Marine
Injury Product
New Drug Application
470 Racketeer Influenced and
(Excludes Veterans)
345 Marine Product
Liability
840 Trademark
Corrupt Organizations
153 Recovery of Overpayment
Liability
PERSONAL PROPERTY
LABOR
SOCIAL SECURITY
480 Consumer Credit
of Veteran's Benefits
350 Motor Vehicle
370 Other Fraud
710 Fair Labor Standards
861 HIA (1395ff)
490 Cable/Sat TV
160 Stockholders' Suits
355 Motor Vehicle
371 Truth in Lending
Act
862 Black Lung (923)
850 Securities/Commodities/
190 Other Contract
Product Liability
380 Other Personal
720 Labor/Management
863 DIWC/DIWW (405(g))
Exchange
195 Contract Product Liability
360 Other Personal
Property Damage
Relations
864 SSID Title XVI
890 Other Statutory Actions
196 Franchise
Injury
385 Property Damage
740 Railway Labor Act
865 RSI (405(g))
891 Agricultural Acts
362 Personal Injury
Product Liability
751 Family and Medical
893 Environmental Matters
Medical Malpractice
Leave Act
895 Freedom of Information
REAL PROPERTY
CIVIL RIGHTS
PRISONER PETITIONS
790 Other Labor Litigation
FEDERAL TAX SUITS
Act
210 Land Condemnation
440 Other Civil Rights
Habeas Corpus:
791 Employee Retirement
870 Taxes (U.S. Plaintiff
896 Arbitration
220 Foreclosure
441 Voting
463 Alien Detainee
Income Security Act
or Defendant)
899 Administrative Procedure
230 Rent Lease & Ejectment
442 Employment
510 Motions to Vacate
871 IRS-Third Party
Act/Review or Appeal of
240 Torts to Land
443 Housing/
Sentence
26 USC 7609
Agency Decision
245 Tort Product Liability
Accommodations
530 General
950 Constitutionality of
290 All Other Real Property
445 Amer. w/Disabilities
535 Death Penalty
IMMIGRATION
State Statutes
Employment
Other:
462 Naturalization Application
446 Amer. w/Disabilities
540 Mandamus & Other
465 Other Immigration
Other
550 Civil Rights
Actions
448 Education
555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN
(Place an "X" in One Box Only)
1 Original
2
Removed from
3
Remanded from
4 Reinstated or
5 Transferred from
6 Multidistrict
8 Multidistrict
Proceeding
State Court
Appellate Court
Reopened
Another District
Litigation -
Litigation
(specify)
Transfer
Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 USC Sec. 1983
VI. CAUSE OF ACTION
Brief description of cause:
Civil Rights Violation based on Excessive Force
VII. REQUESTED IN
CHECK IF THIS IS A CLASS ACTION
DEMAND $
CHECK YES only if demanded in complaint:
COMPLAINT:
UNDER RULE 23, F.R.Cv.P.
JURY DEMAND:
Yes
No
VIII. RELATED CASE(S)
IF ANY
(See instructions):
JUDGE
DOCKET NUMBER
DATE
SIGNATURE OF ATTORNEY OF RECORD
07/07/2020
/s/ H Gray Laird
FOR OFFICE USE ONLY
RECEIPT #
AMOUNT
APPLYING IFP
JUDGE
MAG. JUDGE
JS 44 Reverse (Rev. 06/17)
Case 1:20-cv-00730 Document 1-1 Filed 07/07/20 Page 2 of 2
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required
for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a)
Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b)
County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c)
Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II.
Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III.
Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV.
Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
V.
Origin. Place an "X" in one of the seven boxes.
Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation - Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation - Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.
VI.
Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII.
Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
Case 1:20-cv-00730 Document 1-2 Filed 07/07/20 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
Austin
DIVISION
Supplement to JS 44 Civil Cover Sheet
Cases Removed from State District Court
This form must be filed with the Clerk's Office no later than the first business day
following the filing of the Notice of Removal. Additional sheets may be used as necessary.
The attorney of record for the removing party MUST sign this form.
STATE COURT INFORMATION:
1.
Please identify the court from which the case is being removed; the case number; and the
complete style of the case.
Travis County District Court, 98TH Judicial District;
Cause No. D-1-GN-20-003037
Iris E. Salazar, individually, and as Independent Administrator of the Estate of Leslie Yolanda Salazar, V
The City of Austin, Texas, Thomas Brown, Elias Robles
2.
Was jury demand made in State Court?
Yes
No
If yes, by which party and on what date?
Party Name
Date
STATE COURT INFORMATION:
1.
List all plaintiffs, defendants, and intervenors still remaining in the case. Also, please list the
attorney(s) of record for each party named and include the attorney's firm name, correct mailing address,
telephone number, and fax number (including area codes).
Plaintiff: Iris E Salazar, Individually & as Independent Administrator of Estate of Leslie Yolanda Salazar;
Counsel Scott S Cooley, MARTIN MILLICAN COOLEY, PLLC; 512 E Fourth St, Lampasas, Tx 76550;
Phn: 512-556-6228; Fax 844-318-6073
Defendant: Counsel H Gray Laird, Asst City Attny, Cityof Austin Law Department; PO Box 1546, Austin
Tx 78767-1546; Phn: 512-974-1342; Fax: 512-974-1311
2. List all parties that have not been served at the time of the removal, and the reason(s) for non-service.
Not Applicable
TXWD - Supplement to JS 44 (Rev. 9/2019)
Page 1
Case 1:20-cv-00730 Document 1-2 Filed 07/07/20 Page 2 of 3
3.
List all parties that have been non-suited, dismissed, or terminated, and the reason(s) for their
removal from the case.
Not Applicable
COUNTERCLAIMS, CROSS-CLAIMS, and/or THIRD-PARTY CLAIMS:
1.
List separately each counterclaim, cross-claim, or third-party claim still remaining in the case and
designate the nature of each such claim. For each counterclaim, cross-claim, or third-party claim, include
all plaintiffs, defendants, and intervenors still remaining in the case. Also, please list the attorney(s) of
record for each party named and include the attorney's firm name, correct mailing address, telephone
number, and fax number (including area codes).
Not Applicable
VERIFICATION:
H Gray Laird
7/7/2020
Attorney for Removing Party
Date
Defendant City of Austin, Thomas Brown & Elias Rg
Party/Parties
(NOTE: Additional comment space is available on page 3)
TXWD - Supplement to JS 44 (Rev. 9/2019)
Page 2
Case 1:20-cv-00730 Document 1-2 Filed 07/07/20 Page 3 of 3
ADDITIONAL COMMENTS (As necessary):
TXWD - Supplement to JS 44 (Rev. 9/2019)
Page 3
Case 1:20-cv-00730-LY Document 4 Filed 07/14/20 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
IRIS E. SALAZAR,
§
INDIVIDUALLY, AND AS
§
INDEPENDENT ADMINISTRATOR
§
OF THE ESTATE OF LESLIE
§
YOLANDA SALAZAR
§
Plaintiff,
§
§
V.
§
§
CIVIL ACTION NO.: 1:20-cv-00730-LY
THE CITY OF AUSTIN, TEXAS,
§
THOMAS BROWN, ELIAS ROBLES
§
Defendants
§
DEFENDANTS' ANSWER AND AFFIRMATIVE DEFENSES
TO THE HONORABLE JUDGE OF SAID COURT:
Defendants City of Austin, Texas, Thomas Brown and Elias Robles file this Answer and
Affirmative Defenses to Plaintiff's Original Petition. Pursuant to Rules 8 and 12 of the Federal
Rules of Civil Procedure, Defendants respectfully show the Court the following:
ORIGINAL ANSWER
Pursuant to Federal Rule of Civil Procedure 8(b), Defendants respond to each of the
specific averments in Plaintiff's Complaint as set forth below. To the extent that Defendants do
not address a specific averment made by Plaintiff, Defendants expressly deny that averment.
DISCOVERY CONTROL PRACTICE
1.
Paragraph 1 contains no actual allegations and therefore no response is required of the
Defendants.
2.
Upon information and belief, Defendants admit the allegations contained in Paragraph 2
of the Petition.
Case 1:20-cv-00730-LY Document 4 Filed 07/14/20 Page 2 of 6
3.
Upon information and belief, Defendants admit the allegations contained in Paragraph 3
of the Petition.
4.
Defendants admit the allegations contained in Paragraph 4 of the Petition.
5.
Defendants admit the allegations contained in Paragraph 5 of the Petition.
6.
Defendants admit the allegations contained in Paragraph 6 of the Petition.
7.
Defendants admit the allegations contained in Paragraph 7 of the Petition.
8.
Defendants admit the allegations contained in Paragraph 8 of the Petition.
JURISDICTION AND VENUE
9.
Defendants admit the allegations contained in Paragraph 9 of the Petition.
10.
Defendants deny the allegations contained in Paragraph 10 of the Petition.
11.
Defendants admit the allegations contained in Paragraph 11 of the Petition.
12.
Defendants admit the allegations contained in Paragraph 12 of the Petition.
FACTS
13.
Upon information and belief, Defendants admit the allegations contained in Paragraph 13
of the Petition.
14.
Upon information and belief, Defendants admit the allegations contained in Paragraph 14
of the Petition.
15.
Defendants admit the allegations contained in Paragraph 15 of the Petition.
16.
Defendants admit the allegations contained in Paragraph 16 of the Petition.
17.
Defendants admit the allegations contained in Paragraph 17 of the Petition.
18.
Defendants admit the allegations contained in Paragraph 18 of the Petition with the
exception of the allegations contained in footnote 2 of the Petition, which Defendants
deny.
Page 2 of 6
Case 1:20-cv-00730-LY Document 4 Filed 07/14/20 Page 3 of 6
19.
Defendants admit the allegations contained in the first 5 sentences contained in Paragraph
19 of the Petition. Defendants deny the remaining allegations contained in Paragraph 19
of the Petition and deny the allegations contained in footnote 3 of the Petition.
20.
Upon information and belief, Defendants admit the allegations contained in Paragraph 20
of the Petition.
21.
Defendants admit the allegations contained in Paragraph 21 of the Petition.
22.
Defendants admit the allegations contained in Paragraph 22 of the Petition.
23.
Defendants deny the allegations contained in Paragraph 23 of the Petition.
24.
Defendants deny the allegations contained in Paragraph 24 of the Petition.
CAUSES OF ACTION
Wrongful Death
25.
Defendants deny the allegations contained in Paragraph 25 of the Petition.
26.
Defendants admit the allegations contained in Paragraph 26 of the Petition.
27.
Defendants deny the allegations contained in Paragraph 27 of the Petition.
28.
Defendants deny the allegations contained in Paragraph 28 of the Petition.
29.
Defendants deny the allegations contained in Paragraph 29 of the Petition.
30.
Defendants deny the allegations contained in Paragraph 30 of the Petition.
31.
Defendants deny the allegations contained in Paragraph 31 of the Petition.
Survival Action
32.
Defendants deny the allegations contained in Paragraph 32 of the Petition.
Proximate Cause
33.
Defendants deny the allegations contained in Paragraph 33 of the Petition.
Page 3 of 6
Case 1:20-cv-00730-LY Document 4 Filed 07/14/20 Page 4 of 6
Damages for Wrongful Death and Survival
34.
Defendants deny the allegations contained in Paragraph 34 of the Petition.
35.
Defendants deny the allegations contained in Paragraph 35 of the Petition.
36.
Defendants deny the allegations contained in Paragraph 36 of the Petition.
37.
Defendants deny the allegations contained in Paragraph 37 of the Petition.
Exemplary Damages
38.
Defendants deny the allegations contained in Paragraph 38 of the Petition.
39.
Defendants deny the allegations contained in Paragraph 39 of the Petition.
40.
Defendants deny the allegations contained in Paragraph 40 of the Petition.
41.
Defendants deny the allegations contained in Paragraph 41 of the Petition.
42.
As to the last unnumbered paragraph beginning "WHEREFORE, Iris E. Salazar.
,
Defendants deny the allegations of that paragraph and specifically deny that the Plaintiff
is entitled to any relief whatsoever of and from the Defendants.
AFFIRMATIVE DEFENSES
1.
Defendants assert the affirmative defenses of qualified immunity and official immunity for
actions taken by Officers Brown and Robles in the course and scope of their employment.
2.
Defendant assert the affirmative defense of statute of limitations as to all claims outside
the applicable limitations period(s), both statutory and administrative, if any.
3.
Defendants assert the affirmative defense of contributory negligence. Plaintiff's claims are
barred in whole or in part by Leslie Salazar's contributory negligence. Leslie Salazar, by
her own actions, failed to exercise ordinary care for her safety. Her actions contributed at
least fifty-one percent to the alleged injuries and the damages asserted in this case.
4.
Defendants affirmatively plead that the Plaintiff's claims are barred in whole or in part
Page 4 of 6
Case 1:20-cv-00730-LY Document 4 Filed 07/14/20 Page 5 of 6
since Leslie Salazar's intentional acts were the proximate cause, or a proximate
contributing cause, of the alleged injuries and damages asserted in this case.
5.
Defendants assert the affirmative defense that Plaintiff failed to mitigate damages, if any,
and asserts this failure to mitigate as both an affirmative defense and as a reduction in the
damage amount, if any, due Plaintiff.
6.
The City, as a governmental entity, asserts the protections and limitations of the Texas Tort
Claims Act. TEX. CIV. PRAC. & REM. CODE § 101.001, et seq.
7.
The City asserts the affirmative defense of governmental immunity both from suit and
liability.
8.
The City denies that it can be liable for any exemplary damages.
9.
The City asserts that it is not liable under the Texas Wrongful Death & Survivor's Statute
because it would not have been liable to the decedent had she lived. TEX. CIV. PRAC. &
REM. CODE § 71.003(a).
10.
Defendants reserve the right to assert additional affirmative defenses throughout the
development of the case.
RESPECTFULLY SUBMITTED,
ANNE MORGAN, CITY ATTORNEY
MEGHAN RILEY, CHIEF OF LITIGATION
/s/H. Gray Laird III
H. Gray Laird
Assistant City Attorney
State Bar No. 24087054
gray.laird@austintexas.gov
City of Austin Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-1342
Facsimile: (512) 974-1311
ATTORNEYS FOR DEFENDANTS
Page 5 of 6
Case 1:20-cv-00730-LY Document 4 Filed 07/14/20 Page 6 of 6
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties, or their attorneys
of record, in compliance with the Federal Rules of Civil Procedure, on this 14th day of July, 2020,
as follows:
Via CM/ECF:
Scott S. Cooley
Texas Bar No. 00796394
Jackie P. Paltrun
Texas Bar No. 24087140
512 E. Fourth St.
Lampasas, Texas 76550
Tel. (512) 556-6228
Fax. (844) 318-6073
Scott@lampasaslawyer.com
ATTORNEYS FOR PLAINTIFF
/s/H. Gray Laird III
H. Gray Laird
Page 6 of 6
Case 1:20-cv-00730-LY Document 5 Filed 08/05/20 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
IRIS E. SALAZAR, INDIVIDUALLY
§
AND AS INDEPENDENT
§
ADMINISTRATOR OF THE ESTATE
§
OF LESLIE YOLANDA SALAZAR,
§
Plaintiff,
§
§
CIVIL ACTION NO.: 1:20-cv-00730-LY
V.
§
§
THE CITY OF AUSTIN, TEXAS,
§
THOMAS BROWN, AND
§
ELIAS ROBLES,
§
Defendants.
§
PLAINTIFF'S MOTION TO ABSTAIN AND REMAND
TO THE HONORABLE UNITED STATES DISTRICT COURT:
NOW COMES Plaintiff, Iris E. Salazar, Individually and as Independent Administrator
of the Estate of Leslie Yolanda Salazar, Movant herein, pursuant to 28 U.S.C. § 1447(c), and
files this Motion To Abstain and To Remand this action previously removed from the 98th
Judicial District Court, Travis County, Texas, and states as follows:
1.
A review of Plaintiff's Original Petition filed June 8, 2020, shows that Defendants
have no plausible basis for claiming that this court has jurisdiction on any basis that would take
precedence over the state court jurisdiction over purely state court causes of action in Plaintiff's
petition. Plaintiff's causes of action are:
A.
Wrongful Death cause of action on her behalf and on behalf of all statutory heirs
pursuant to Texas Civil Practice and Remedies Code§ 71.001, et seq.; Defendants
City, Brown, and Robles are all "persons" under Chapter 71 of the Civil Practice
and Remedies Code. "Person" means an individual, association of individuals,
joint-stock company, or corporation "Corporation" means a municipal,
private, public, or quasi-public corporation other than a county or a common or
independent school district. TEX. CIV. PRAC. & REM. CODE § 71.001(1), (2)
(emphasis added).
1
Case 1:20-cv-00730-LY Document 5 Filed 08/05/20 Page 2 of 3
B.
Survival action in Plaintiff's capacity as legal heir of decedent and Independent
Administrator of the Estate of Leslie Yolanda Salazar pursuant to Texas Civil
Practice & Remedies Code § 71.021.
C.
The factual allegations establish that it was Defendants' "wrongful act[s], neglect,
carelessness, unskillfulness, or default," under the letter of the state statute, that
proximately caused Leslie Yolanda Salazar's death.
2.
There is no support for Defendants' argument in its Notice of Removal that
"Plaintiff also alleges that the City of Austin was responsible for assuring that its employees
complied with the laws of the United States and alleges that the policies and practices of the City
of Austin resulted in the death of Plaintiff's decedent." To the contrary, under the Texas
Wrongful Death Statute, a municipal corporation is liable for "damages arising from an injury
that causes an individual's death if the injury was caused by the person's or his agent's or
servant's wrongful act, neglect, carelessness, unskillfulness, or default." TEX. CIV. PRAC. & REM.
CODE § 71.001(1), (2). The City, through its police department, plainly neglected, was careless,
or defaulted in its duty to insure that its officers utilized the comprehensive written set of rules
for "De-escalation" and "De-escalation Techniques" in the APD Policy Manual 2017-1.5 issued
7/20/2017. Plaintiff will show that decedent's death was wrongful under state law, and only
state law. The duties breached by Defendants and complained of by Plaintiff are imposed strictly
by state law, and the only forum to adjudicate Plaintiff's claims is state court.
3.
Finally, Defendants' notice of removal served no other purpose but needlessly
delay this case and increase the cost of this litigation. Accordingly, Plaintiffs further respectfully
moves this court to order Defendants to pay all costs, expenses, and reasonable attorney's fees
incurred by Plaintiff as a result of the removal action.
WHEREFORE PREMISES CONSIDERED, Plaintiff, Iris E. Salazar, Individually and
as Independent Administrator of the Estate of Leslie Yolanda Salazar, prays that this Court
2
Case 1:20-cv-00730-LY Document 5 Filed 08/05/20 Page 3 of 3
abstains from hearing Plaintiff's state law causes of action-the only causes of action pleaded by
Plaintiff-and remand same to the 98th Judicial District Court, Travis County, Texas, for
resolution on the merits, for recovery of all costs and disbursements, including attorney's fees,
incurred by reason of the removal proceedings; and for such other and further relief to which
Plaintiff may be justly entitled.
Respectfully submitted,
MARTIN MILLICAN COOLEY, PLLC
By: /s/Scott S. Cooley
Scott S. Cooley
Texas Bar No. 00796394
512 E. Fourth St.
Lampasas, Texas 76550
Tel. (512) 556-6228
Fax. (844) 318-6073
scott@lampasaslawyer.com
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
By my signature below, I hereby certify that on the 5TH day of August, 2020, a true and
correct copy of the foregoing Motion was served upon the parties below by electronic
transmission through the Court's ECF noticing system on those parties-in-interest registered to
receive such service.
Anne Morgan, City Attorney
Meghan Riley, Chief of Litigation
H. Gray Laird III, Assistant City Attorney
City of Austin Law Department
P.O. Box 1546
Austin, Texas 78767-1546
/s/ Scott S. Cooley
Scott S. Cooley
3
Case 1:20-cv-00730-LY Document 5-1 Filed 08/05/20 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
IRIS E. SALAZAR, INDIVIDUALLY
§
AND AS INDEPENDENT
§
ADMINISTRATOR OF THE ESTATE
§
OF LESLIE YOLANDA SALAZAR,
§
Plaintiff,
§
§
CIVIL ACTION NO.: 1:20-cv-00730-LY
V.
§
§
THE CITY OF AUSTIN, TEXAS,
§
THOMAS BROWN, AND
§
ELIAS ROBLES,
§
Defendants.
§
ORDER OF REMAND
This cause having come on for hearing on the motion of Plaintiff, Iris E. Salazar, to remand
this action to the 98th Judicial District Court, Travis County, Texas, and the court having
considered the arguments of counsel and affidavits submitted in support of and against this motion,
it appears to the court that this action was removed improperly and the court is without jurisdiction
over the subject matter of this action.
THE COURT FINDS THAT:
1.
This Court is without jurisdiction in this case because Defendants have not shown
the existence of diversity jurisdiction and Plaintiff's pleadings do not state any claims raising a
federal question.
2.
IT IS ORDERED that the Plaintiff's motion is RANTED and that this action is
remanded to the 98th Judicial District Court, Travis County, Texas, and the Clerk of this court shall
mail a copy of this order via certified mail to the Clerk of the Travis County District Court, Travis
County, Texas. Upon receipt of this order, said court may proceed with the action according to
1
Case 1:20-cv-00730-LY Document 5-1 Filed 08/05/20 Page 2 of 2
the laws and procedures of the courts of the State of Texas.
FURTHER, IT IS ORDERED that Defendants shall pay to Plaintiff all costs and expenses,
including reasonable attorney's fees, incurred as a result of this removal action in the amount of
SIGNED this
day of
, 20
.
LEE YEA EL
UNITED STATES DISTRICT JUDGE
2
Case 1:20-cv-00730-LY Document 9 Filed 08/20/20 Page 1 of 1
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
2020 AUG 20 AMII: 25
CLERK US DISTRICT COURT
IRIS E. SALAZAR,
WESTERN DISTRICT OF TEXAS
INDIVIDUALLY, AND AS
BY
INDEPENDENT ADMINISTRATOR
DEPUTY
4
OF THE ESTATE OF LESLIE
YOLANDA SALAZAR
§
Plaintiff,
§
§
V.
§
§
CIVIL ACTION NO.: 1:20-cv-00730-LY
THE CITY OF AUSTIN, TEXAS,
THOMAS BROWN, ELIAS ROBLES
§
Defendants
§
ORDER OF REMAND
Came on for consideration Plaintiff's Motion to Remand (Doc. 5) and the Court having
considered same and the parties' Advisory to the Court (Doc. 8) which advised the Court that
Defendants do not oppose Plaintiff's Motion to Remand, the Court finds that the motion is well-
taken and is hereby GRANTED.
Accordingly, it is hereby ORDERED that this action is remanded to the 98th Judicial
District Court of Travis County, Texas and the Clerk of this Court shall forward a copy of this
order to the Clerk of the Travis County District Court, Travis County, Texas. It is further
ordered that the parties shall be responsible for their own costs and fees associated with the
initial removal of this action to this Court and the remand of the action to Travis County District
Court.
SO THIS
ORDERED, THE 20th
DAY OF
Anjur
, 2020.
LEE YEAKEL, UNITED STATES DISTRICT JUDGE
feelfelfel
6/8/2020 11:42 AM
Velva L. Price
District Clerk
D-1-GN-20-003037
Travis County
CAUSE NO.
D-1-GN-20-003037
Victoria Benavides
IRIS E. SALAZAR,
§
IN THE DISTRICT COURT
INDIVIDUALLY, AND AS
§
INDEPENDENT ADMINISTRATOR OF
§
THE ESTATE OF LESLIE YOLANDA
§
SALAZAR,
§
98th
PLAINTIFF,
§
JUDICIAL DISTRICT
V.
§
§
THE CITY OF AUSTIN, TEXAS;
§
THOMAS BROWN; ELIAS ROBLES,
§
DEFENDANTS.
§
TRAVIS COUNTY, TEXAS
PLAINTIFF'S ORIGINAL PETITION
TO THE HONORABLE DISTRICT COURT:
NOW COMES Iris E. Salazar, Individually and as Independent Administrator of the
Estate of Leslie Yolanda Salazar, Plaintiff, complaining of and about The City of Austin, Texas,
and police officers Thomas Brown and Elias Robles, Defendants, and for cause of action shows
as follows:
DISCOVERY CONTROL PLAN LEVEL
1.
Plaintiff intends that discovery be conducted under Discovery Level 2.
PARTIES AND SERVICE
2.
Plaintiff, Iris E. Salazar, is an individual who resides in the state of Texas. Iris E.
Salazar is the surviving mother of Leslie Yolanda Salazar and the Independent Administrator of
the Estate of Leslie Yolanda Salazar. Plaintiff brings this action in her individual capacity and in
her capacity as Independent Administrator. The last three digits of the social security number of
Iris E. Salazar are *304. The last three digits of the driver's license number of Iris E. Salazar are
*743. Plaintiff is entitled to bring this action on behalf of all beneficiaries pursuant to TEX.
CIV. PRAC. & REM. CODE ANN. § 71.004(b) and (c).
3.
The names of the wrongful death beneficiaries and their relationship to Leslie
1
Yolanda Salazar, decedent, are as follows:
Name: Iris E. Salazar
Relationship: Mother
Name: Daniel McGarvey, II
Relationship: Father
The survival portion of this petition is brought by plaintiff in her capacity as the Independent
Administrator of the Estate of Leslie Yolanda Salazar pursuant to Texas Civil Practice &
Remedies Code § 71.021.
4.
Defendant City of Austin, Texas ("the City"), is and was a home-rule, municipal
corporation and political subdivision of the State of Texas and existing under the laws of the
State of Texas, with the capacity to be sued. The City is responsible for the actions, omissions,
policies, procedures, practices, and customs of its various agents and agencies, including the
Austin Police Department ("APD") and its agents and employees. At all relevant times, the City
was responsible for assuring that the actions, omissions, policies, procedures, practices, and
customs of the APD and its employees and agents complied with the laws of the United States
and of the State of Texas. At all relevant times, the City was the employer of Defendants
Thomas Brown and Elias Robles.
5.
Pursuant to Texas Civil Practice and Remedies Code Section 17.024(b),
Defendant City may be served by serving the mayor, clerk, secretary, or treasurer of the City at
301 West 2nd Street, Austin, Texas 78701.
6.
Defendant Thomas Brown is an individual who, upon information and belief,
resides in or around Travis County, Texas, and who may be served at his last known place of
business: Austin Police Department; 715 E. 8th St., Austin, Texas 78701-3300, or wherever he
may be found.
2
7.
Defendant Elias Robles is an individual who, upon information and belief, resides
in or around Travis County, Texas, and who may be served at his last known place of business:
Austin Police Department; 715 E. 8th St., Austin, Texas 78701-3300, or wherever he may be
found.
8.
Brown and Robles were at all relevant time police officers for APD. They were
acting under color of law within the course and scope of their duties as officers for the APD at all
relevant times. Also at all relevant times, Brown and Robles were acting with the complete
authority and ratification of their principal, Defendant City.
JURISDICTION AND VENUE
9.
The subject matter in controversy is within the jurisdictional limits of this court.
10.
Plaintiff seeks:
a.
monetary relief over $1,000,000.00.
11.
This Court has jurisdiction over Defendants because the Defendant City is a
Texas municipality, and the individual defendants are residents of the State of Texas.
12.
Venue is appropriate because the facts of this case arose in Travis County, Texas
and the Defendant City is a municipal entity located within Travis County, Texas, and Travis
County was the county of residence of the individual defendants at the time the cause of action
accrued.
FACTS
13.
Leslie Yolanda Salazar was born on November 7, 1997, to Iris E. Salazar and
Daniel McGarvey, II. When Leslie was 20 years old, on June 7, 2018, Defendant Thomas
Brown shot and killed her in Austin, Travis County, Texas at the premises located at 7328 S.
Glenn St., Austin, Texas 78744. Leslie was 5'3" tall and weighed 100 pounds when she was
3
killed. The medical examiner determined that the cause of death was "Gunshot Wounds." The
death certificate describes the "Manner of Death" as "Homicide." Ms. Salazar was laid to rest in
Lampasas, Texas.
14.
This recitation of facts behind the incident is based largely on the police
interviews and statements taken the night Ms. Salazar was killed as reflected in the Travis
County District Attorney's letter explaining her decision not to prosecute Officer Brown. (The
"Declination Letter").
15.
On June 7, 2018, at 2:23:14 A.M. and 2:26:41 A.M., two telephone calls were
made to 911 in quick succession. On the first, the caller complained of a suspect named "Leslie"
attempting to break into a home at 7328 S. Glenn Street in Austin. As the facts later became
clearer, it was discovered that "Leslie" was in fact an invited guest at the premises, and in the
second 911 call, the caller, Sidney Joy, said the suspect Leslie was her cousin and was
threatening people in the house with a knife.
16.
Officer Elias Robles #7231 (Unit H703) assigned himself to the call, and Officer
Thomas Brown #8106 (Unit H707) was assigned as his back-up. Records indicate that Officer
Robles arrived at 2:30:21 A.M., and Officer Brown arrived about three minutes later. Leslie
Salazar was dead less than thirty minutes later.
17.
Officer Robles was the first on scene, and he went straight to the subject address,
where he saw a knife lying in the driveway in front of the house. He knocked on the front door
of the house, but got no response and was soon redirected to a nearby intersection. He collected
the knife that was found outside and secured it in his vehicle. At the intersection, Officer Robles
met with two residents of the home, Lauren Chips and Sidney Joy. Officer Brown arrived soon
thereafter. It was at that time that officers learned that another woman, Valerie Kernes, a
4
roommate of Ms. Chips and Ms. Joy, was still in the house. Ms. Kernes later told police she had
seen the earlier altercation, including Ms. Salazar shouting "Kill me! Kill me!", and had helped
break up a physical fight earlier in the evening between Ms. Salazar and Ms. Chips. Eventually,
after 2:00 A.M., Ms. Kernes returned to her room and tried to go back to sleep. After police
arrived, Ms. Chips called Ms. Kernes and told her to come outside, which she did, unharmed.
1
18.
As soon as Officers Brown and Robles entered the house they announced
themselves as police officers, with Brown in the lead and Robles directly behind him. Robles
initially led the way in, but eventually, Officer Brown moved in front. Interestingly, Officer
Brown admitted he could not remember Ms. Salazar's name, SO he asked Officer Robles. After
calling her name Officer Brown moved in front to clear the kitchen area, and within seconds Ms.
Salazar appeared approximately 8-10 feet in front of him. Officer Brown stated: "I see that she
has a knife which in my mind looked - looked to be like two or three feet - it looked huge. 2 She
had a knife in her right hand and she had it up like this. And I see that - at the same time that I
see that I see her face and I just remember her face. I - I don't know the - the word to put it but it
looked like, staring off like - like she was on a mission or some -- I don't - I don't know who
[sic] to put it. But like - like she was on a mission."
19.
Officer Robles also described that moment to investigators: "As we approached
the kitchen was when Leslie pops out approximately 8 to 10 feet in front of us. I identified
Leslie by the clothing description we had previously been given of wearing a dark gray shirt, and
cut-off jeans. Leslie had a knife in her right hand and holding it in a stabbing type way with the
1 The District Attorney's declination letter states, "Even though Ms. Kernes had come out unhurt, the two officers
were unsure whether anyone else might be in the house with Ms. Salazar due to the fact that all of the witnesses
appeared to be intoxicated and therefore unclear on who'd been in the house and who might still be inside." Direct
statements recorded on Officer Robles's bodycam show this to be untrue, as he remarks more than once that Ms.
Salazar was the only person left in the house.
2 In fact, instead of being "two or three feet," the knife was a typical 6-8 inch kitchen steak knife.
5
point down. She is holding it in front of her at about her waist to chest height. Leslie had a
blank stare on her face of just nothing." Robles said that at this time Brown shouted at Leslie to
drop the knife at least twice, and this statement is supported by the audio captured by Officer
Brown's bodycam. Immediately thereafter, Officer Brown fired three shots, and Ms. Salazar fell
to the ground.
20.
At this point, Ms. Salazar still had the knife in her hand and she was still moving.
When she stopped moving, Officer Brown "moved forward and removed the knife from
her
hand. I don't think he used his hand but may have stepped on the knife and moved it away from
Leslie's reach." Officer Brown confirmed that he put his foot on the knife and slid it out of the
way, and then: "I believe I dragged her [be]cause even if she - where she fell was in a very tight
space SO I moved her out of that space and then I began [to] apply pressure." EMS arrived on
scene at 2:55 A.M., and Ms. Salazar was pronounced dead at 3:00 A.M.
21.
On July 20, 2017, less than a year before this fatal shooting, APD issued its
"Policy Manual," which put into effect a comprehensive written set of rules for "De-escalation"
and "De-escalation Techniques," defined as:
De-escalation - Using techniques to stabilize the situation and reduce the
immediacy of the threat, SO that more options and resources are available to bring
about a successful resolution to an encounter with a non-compliant subject. The
goal of de-escalation is to gain the voluntary compliance of subjects, when
feasible, thereby eliminating the need to use force in response to resistance.
De-escalation Techniques - Communicative or other actions used by officers,
when safe, and without compromising law-enforcement priorities, that are
designed to increase the likelihood of gaining voluntary compliance from a non-
compliant subject, and reduce the likelihood of using force in response to
resistance.
APD Policy Manual 2017-1.5 Issued 7/20/2017 (excerpt attached hereto as Exhibit A).
3 What the bodycam video actually proves is that instead of giving Ms. Salazar time to drop the weapon, Officer
Brown fired almost simultaneously, or mere fractions of a second after his command.
6
22.
Specifically, when determining whether to apply any level of force and evaluating
whether an officer has used objectively reasonable force, a number of factors should be taken
into consideration. These factors include, but are not limited to:
(1) The conduct of the individual being confronted as reasonably perceived by the
officer at the time.
(2) Officer/subject factors such as age, size, relative strength, skill level,
injury/level of exhaustion and number of officers VS. subjects.
(3) Influence of drugs/alcohol or mental capacity.
(4) Proximity of weapons.
(5) The degree to which the subject has been effectively restrained and his ability
to resist despite being restrained.
(6) Time and circumstances permitting, and the availability of other options (what
resources are reasonably available to the officer under the circumstances).
(7) Seriousness of the suspected offense or reason for contact with the individual.
(8) Training and experience of the officer.
(9) Potential for injury to citizens, officers and subjects.
(10) Risk of escape.
(11) Whether the conduct of the individual being confronted no longer
reasonably appears to pose an imminent threat to the officer or others.
(12)
Other exigent circumstances.
Id.
23.
These factors were largely ignored:
(1) The conduct of the individual being confronted as reasonably perceived by the officer
at the time;
There was no indication upon arrival of the officers on the scene that Leslie
Salazar was a danger to anyone. There was literally no reason to "confront"
her without some attempt to diffuse the situation.
(2) Officer and subject factors such as age, size, relative strength, skill level, injury/ level
of exhaustion and number of officers versus subjects;
This factor cannot be overemphasized.
There is no "objective
reasonableness" analysis that would allow the conclusion that two Austin
police officers' size, relative strength, or skill level would call for the use of
deadly force to neutralize a petite woman with a steak knife.
(3) Influence of drugs and alcohol or mental capacity;
Ms. Salazar was at least intoxicated, and perhaps mentally imbalanced. There
was simply no reason to rush this confrontation.
7
(4) Proximity of weapons;
Ms. Salazar was holding a kitchen steak knife eight to ten feet away from
Officer Brown.
(5) The degree to which the subject has been effectively restrained and his ability to resist
despite being restrained;
This factor does not appear to apply.
(6) Time and circumstances permitting, the reasonable availability of other resources to
the officer;
Time and circumstance both permitted bringing in other resources to deal with
the situation, including less lethal methods of subduing Ms. Salazar.
(7) Seriousness of the suspected offense or reason for contact with the individual;
Presumably, the suspected offense was assault; that factor would not weigh in
favor of an ill-prepared advance on the subject.
(8) Training and experience of the officer;
It appears the training should have been there considering the de-escalation
guidelines. Unfortunately, it was not put into practice.
(9) Potential for injury to citizens, officers and subjects;
Literally none, if the proper de-escalation techniques were used before Officer
Brown opened fire.
(10) Risk of escape;
This factor does not appear to apply. Even if it did, the harm (death of a
young woman) weighed against the potential risk of escape would mitigate in
favor of de-escalation at least being attempted.
(11)
Whether the conduct of the individual being confronted no longer reasonably
appears to pose an imminent threat to the officer or others;
Again, Leslie Salazar was alone in a home with a kitchen steak knife. All
complaining witnesses were outside the home. Ms. Salazar posed absolutely
no imminent threat to anyone.
(12)
Other exigent circumstances.
Had other, less lethal actions been allowed to work, Leslie Salazar would be alive today.
24.
Defendant City has a longstanding record of not providing APD officers with
adequate training and not preventing excessive force claims against its officers. As a result of
8
the lack of training and the official custom or policies of the APD, Defendants Brown's and
Robles's inadequate training and failure to implement APD's policies resulted in the death of
Leslie Salazar. APD failed to provide adequate training to its officers in the use of deadly force.
APD failed to provide adequate training to its officers on proper arrest and confrontation
techniques. APD failed to provide adequate training to its officers on appropriate methods and
techniques to control situations similar to the one at issue in this case. The City knew or should
have known that the training provided to the officers was inadequate or nonexistent.
CAUSES OF ACTION
Wrongful Death
25.
Plaintiff incorporates by reference the allegations set forth in the previous
paragraphs. Plaintiff brings this wrongful death action on her behalf and on behalf of all
statutory heirs pursuant to Texas Civil Practice and Remedies Code§ 71.001, et seq.
26.
Iris E. Salazar was Leslie Yolanda Salazar's mother.
27.
Defendants City, Brown, and Robles are all "persons" under Chapter 71 of the
Civil Practice and Remedies Code. 4
Defendants' wrongful and intentional acts, neglect,
carelessness, unskillfulness, and/or default described herein caused Leslie Yolanda Salazar's
death. Leslie Yolanda Salazar would have been entitled to bring an action for her injuries
against Defendants had she lived.
28.
Plaintiff has suffered, and will continue to suffer, a loss of consortium and
damage to the child/parent relationship, including the loss of love, affection, solace, comfort,
companionship, society, assistance, and emotional support from her son as a proximate result of
defendants' actions.
4 "Person" means an individual, association of individuals, joint-stock company, or corporation
"Corporation"
means a municipal, private, public, or quasi-public corporation other than a county or a common or independent
9
29.
As a proximate cause of defendants' actions, Plaintiff has suffered severe mental
depression and anguish, grief, and sorrow as a result of her daughter's death, and in all
reasonable probability, will continue to suffer indefinitely into the future.
30.
Plaintiff also suffered pecuniary loss and loss of inheritance due to the death of
her daughter, which defendants' actions proximately caused.
31.
The City is liable not only for its own wrongful act, neglect, carelessness,
unskillfulness, or default, but also for its agents' or servants'. TEX. CIV. PRAC. & REM. CODE §
71.002(b).
Survival Action
32.
Plaintiff brings this survival action in her capacity as legal heir of decedent and
Independent Administrator of the Estate of Leslie Yolanda Salazar pursuant to Texas Civil
Practice & Remedies Code § 71.021. Defendants' intentional and negligent acts were a
proximate cause of tremendous conscious pain, suffering, terror, and mental anguish to Leslie
Yolanda Salazar preceding her eventual death. The Estate of Leslie Yolanda Salazar is entitled
to recover damages for:
a.
Leslie Yolanda Salazar's conscious physical pain and suffering suffered
by prior to her death;
b.
Her conscious mental anguish suffered prior to her death; and
C.
Funeral and burial expenses for Leslie Yolanda Salazar.
PROXIMATE CAUSE
33.
Each and every, all and singular of the foregoing acts and omissions, on the part
of Defendants, taken separately and/or collectively, constitute a direct and proximate cause of the
injuries and damages set forth below.
school district. TEX. CIV. PRAC. & REM. CODE § 71.001(1), (2) (emphasis added).
10
DAMAGES FOR WRONGFUL DEATH AND SURVIVAL
34.
As a proximate result of the above-described acts and/or omissions on the part of
the Defendants, jointly and severally, by and through their vice principals, agents, employees,
and representatives, Plaintiff and the deceased sustained serious, disabling, and permanent
injuries.
35.
The Estate of Leslie Yolanda Salazar has suffered the following damages:
a.
Past physical pain, suffering, and mental anguish;
b.
Loss of earning capacity;
c.
Past physical disfigurement; and
d.
Past physical impairment.
36.
Iris E. Salazar has suffered the following damages:
a.
Loss of consortium in the past and in the future;
b.
Loss of advice and counsel in the past and in the future;
c.
Loss of services in the past and in the future;
d.
Loss of companionship and society in the past and in the future;
e.
Loss of inheritance;
f.
Past and future mental anguish; and
g.
Past and future medical and therapy.
37.
Plaintiff is entitled to recover actual damages on her behalf and on behalf of the
Estate of Leslie Yolanda Salazar in an amount that is sufficient to compensate for their injuries.
EXEMPLARY DAMAGES
38.
The acts or omissions alleged herein, when viewed objectively from the
standpoint of the Defendants, involved an extreme degree of risk, considering the probability and
11
magnitude of potential harm to others, and were of such a nature that Defendants had, or should
have had, a subjective awareness of the risk involved, but nevertheless proceeded with conscious
indifference to the rights, safety, and welfare of others, including but not limited to Leslie
Yolanda Salazar and Plaintiff.
39.
As a result of the untimely death of Ms. Salazar, her family has suffered and will
continue to suffer into the future a pecuniary loss from her death, including loss of household
services, along with contributions of pecuniary value which they would have, in reasonable
probability, received from Ms. Salazar during their lifetimes, had Ms. Salazar lived.
40.
Iris E. Salazar has suffered severe mental depression and anguish, grief, and
sorrow as a result of the death of her daughter, and in all reasonable probability will continue to
suffer indefinitely into the future. She has experienced the one loss that every parent fears; she
has buried her beloved daughter, Leslie. Plaintiff has suffered, and will continue to suffer, a loss
of consortium and damage to the child/parent relationship, including the loss of love, affection,
solace, comfort, companionship, society, assistance, and emotional support from her daughter.
41.
For all the foregoing losses, plaintiff seeks exemplary damages within the
jurisdictional limits of this Court.
PRAYER
WHEREFORE, Plaintiff, Iris E. Salazar, in her individual capacity and as the sole
representative of the Estate of Leslie Yolanda Salazar, respectfully prays that the Defendants be
cited to appear and answer herein, and that upon a final hearing of the cause, judgment be
entered for the Plaintiff against Defendants, jointly and severally, for damages in an amount
within the jurisdictional limits of the Court; exemplary damages, as addressed to each Defendant
per Section 41.006, Chapter 41, Texas Civil Practice and Remedies Code, excluding interest, and
12
as allowed by Sec. 41.008, Chapter 41, Texas Civil Practice and Remedies Code, together with
pre-judgement interest at the maximum rate allowed by law; post-judgment interest at the legal
rate, costs of court; and such other and further relief to which the Plaintiff may be entitled at law
or in equity.
Respectfully submitted,
MARTIN MILLICAN COOLEY, PLLC
By: /s/Scott S. Cooley
Scott S. Cooley
Texas Bar No. 00796394
Jackie R. Baltrun
Texas Bar No. 24087140
512 E. Fourth St.
Lampasas, Texas 76550
Tel. (512) 556-6228
Fax. (844) 318-6073
ATTORNEYS FOR PLAINTIFF
13
Austin Police Department
Policy Manual
CHIEF'S MESSAGE
I am proud to present the newest edition of the Austin Police Department Policy Manual. The
Policy Manual is designed to assist all employees in accomplishing the Department's mission in a
professional and lawful manner. Adherence to these policies also helps safeguard employees and
the Department against civil litigation and ensures that employees will be protected when their
individual actions are scrutinized, especially after a critical incident.
All employees will abide by these policies and are responsible for keeping themselves current on
the content of this manual.
Stay safe,
Brian
Brian Manley
Chief of Police
EXHIBIT
A
Copyright Lexipol, LLC 2017/07/21, All Rights Reserved.
Chief's Message - 1
Published with permission by Austin Police Department
APD Policy Manual 2017-1.5 Issued 7/20/2017
Policy
Austin Police Department
200
Policy Manual
Response to Resistance
200.1 PURPOSE AND SCOPE
This policy recognizes that the use of force in response to resistance by law enforcement requires
constant evaluation and that response to resistance is a serious responsibility. The purpose of
this policy is to provide officers with guidelines on objectively reasonable response to resistance.
While there is no way to specify the exact amount or type of objectively reasonable force to be
applied in any situation, each officer is expected to use these guidelines to make such decisions
in a professional, impartial, and objectively reasonable manner.
This policy is written in terms to apply to sworn officers. In incidents where civilian employees
are authorized to use force, they are subject to the same policies and procedures as officers but
the test of objective reasonableness is judged from the perspective of an objectively reasonable
civilian employee.
200.1.1 PHILOSOPHY
The use of force by law enforcement personnel is a matter of critical concern both to the public
and to the law enforcement community. Officers are involved on a daily basis in numerous and
varied human encounters and when warranted, may exercise control over another in carrying out
their duties.
The Department recognizes and respects the value of all human life and dignity without prejudice
to anyone. It is also understood that vesting officers with the authority to use lawful and objectively
reasonable force and to protect the public welfare requires a careful balancing of all human
interests.
200.1.2 DEFINITIONS
Bodily Injury - Physical pain, illness or any impairment of physical condition (Tex. Penal Code
§ 1.07(8)).
Deadly Force - Force that is intended or known by the officer to cause, or in the manner of its
use or intended use is known to be capable of causing death or serious bodily injury (Tex. Penal
Code § 9.01(3)).
Force but Any physical contact with a subject by an officer using the body or any object, device, or
weapon, not including unresisted escorting or handcuffing a subject.
Non-Deadly Force - Any application of force other than deadly force.
Objectively Reasonable - An objective standard viewed from the perspective of a reasonable
officer on the scene, without the benefit of 20/20 hindsight, and within the limitations of the totality
of the circumstances presented at the time of the incident.
Serious Bodily Injury - Bodily injury that creates a substantial risk of death or that causes death,
serious permanent disfigurement or protracted loss or impairment of the function of any bodily
member or organ (Tex. Penal Code § 1.07(46)).
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De-escalation - Using techniques to stabilize the situation and reduce the immediacy of the
threat, so that more options and resources are available to bring about a successful resolution
to an encounter with a non-compliant subject. The goal of de-escalation is to gain the voluntary
compliance of subjects, when feasible, thereby eliminating the need to use force in response to
resistance.
De-escalation Techniques - Communicative or other actions used by officers, when safe, and
without compromising law-enforcement priorities, that are designed to increase the likelihood of
gaining voluntary compliance from a non-compliant subject, and reduce the likelihood of using
force in response to resistance.
200.1.3 DUTY TO INTERCEDE
Any officer present and observing another officer using force that is clearly beyond that which
is objectively reasonable under the circumstances shall, when in a position to do so, intercede
to prevent the use of such excessive force. Such officers should also promptly report these
observations to a supervisor.
200.1.4 RESPONSE TO RESISTANCE RELATED POLICIES
(a) Policy 200 (Response to Resistance).
(b) Policy 202 (Firearm Discharge Situations).
(c) Policy 204 (Leg Restraint Guidelines).
(d) Policy 206 (Control Devices and Techniques).
(e)
Policy 208 (TASER® Guidelines).
(f)
Policy 211 (Response to Resistance Inquiry, Reporting and Review).
(g) Policy 212 (Force Review Board).
200.2 RESPONSE TO RESISTANCE POLICY
While the type and extent of force may vary, it is the policy of this department that officers use only
that amount of objectively reasonable force which appears necessary under the circumstances to
successfully accomplish the legitimate law enforcement purpose in accordance with this policy.
(a)
Given that no policy can realistically predict every situation an officer might encounter, it is
recognized that each officer must be entrusted with well-reasoned discretion in determining
the appropriate response to resistance in each incident.
(b)
Circumstances may arise in which officers reasonably believe that it would be impracticable
or ineffective to use any of the standard tools, weapons, or methods provided by the
Department. Officers may find it more effective or practicable to improvise their response
to rapidly unfolding conditions they are confronting. In such circumstances, the use of any
improvised device or method must still be objectively reasonable and used only to the extent
which reasonably appears necessary to accomplish a legitimate law enforcement purpose.
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(c)
While it is the ultimate objective of every law enforcement encounter to minimize injury to
everyone involved, nothing in this policy requires an officer to actually sustain physical injury
before applying objectively reasonable force.
(d)
Any complaint by a subject that an officer caused pain or injury shall be treated as a
response to resistance force incident, except complaints of minor discomfort from unresisted
handcuffing.
200.2.1 DETERMINING THE OBJECTIVE REASONABLENESS OF FORCE
Any interpretation of objective reasonableness about the amount of force that reasonably appears
to be necessary in a particular situation must allow for the fact that police officers are often forced to
make split-second decisions in circumstances that are tense, uncertain and rapidly evolving, and
the amount of time available to evaluate and respond to changing circumstances may influence
their decisions. The question is whether the officer's actions are "objectively reasonable" in light
of the facts and circumstances confronting him.
(a)
When determining whether to apply any level of force and evaluating whether an officer has
used objectively reasonable force, a number of factors should be taken into consideration.
These factors include, but are not limited to:
1.
The conduct of the individual being confronted as reasonably perceived by the officer
at the time.
2.
Officer/subject factors such as age, size, relative strength, skill level, injury/level of
exhaustion and number of officers VS. subjects.
3.
Influence of drugs/alcohol or mental capacity.
4.
Proximity of weapons.
5.
The degree to which the subject has been effectively restrained and his ability to
resist despite being restrained.
6.
Time and circumstances permitting, and the availability of other options (what
resources are reasonably available to the officer under the circumstances).
7.
Seriousness of the suspected offense or reason for contact with the individual.
8.
Training and experience of the officer.
9.
Potential for injury to citizens, officers and subjects.
10.
Risk of escape.
11. Whether the conduct of the individual being confronted no longer reasonably appears
to pose an imminent threat to the officer or others.
12.
Other exigent circumstances.
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200.2.2 USE OF FORCE TO AFFECT A DETENTION, AN ARREST OR TO CONDUCT A
SEARCH
An officer is justified in using reasonable force when the officer reasonably believes the use of
such force is immediately necessary (Tex. Penal Code § 9.51(a)):
(a)
To make or assist in a detention or an arrest, or to conduct a search that the officer
reasonably believes is lawful.
(b)
To prevent or assist in preventing escape after an arrest, provided the officer reasonably
believes the arrest or search is lawful.
(c)
To make an arrest or conduct a search under a warrant that the officer reasonably believes
is valid.
200.2.3 NOTICE OF AUTHORITY AND IDENTITY
If it is not already reasonably known by the subject to be searched or arrested, or it is not
reasonably impracticable to do so, officers should make clear their intent to arrest or search and
identify themselves as a peace officer before using force (Tex. Penal Code § 9.51(a)(2)).
200.3 DEADLY FORCE APPLICATIONS
An officer has no duty to retreat and is only justified in using deadly force against another when
and to the extent the officer reasonably believes the deadly force is immediately necessary to
(Tex. Penal Code § 9.51(c) and (e)):
(a)
Protect himself or others from what he reasonably believes would be an imminent threat of
death or serious bodily injury.
(b) Make an arrest or to prevent escape after arrest when the officer has probable cause to
believe that:
1.
The subject has committed or intends to commit an offense involving the infliction or
threatened infliction of serious bodily injury or death; or
2.
The officer reasonably believes that there is an imminent or potential risk of
serious bodily injury or death to any other person if the subject is not immediately
apprehended.
200.4 REPORTING THE RESPONSE TO RESISTANCE
Any response to resistance by a member of this department shall be documented promptly,
completely and accurately in an appropriate report as prescribed by Policy 211 (Response to
Resistance Inquiry, Reporting, and Review).
200.4.1 NOTIFICATION TO SUPERVISORS
Supervisor notification shall be made as soon as practicable following any force incident or
allegation of use of force.
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200.4.2 MEDICAL ATTENTION
Prior to booking or release, medical assistance shall be obtained for any subject who has sustained
visible injury, expressed a complaint of injury or continuing pain or who has been rendered
unconscious. Based upon the officer's initial assessment of the nature and extent of the subject's
injuries, medical assistance may consist of examination by fire personnel, paramedics, hospital
staff or medical staff at the jail.
A subject who exhibits extreme agitation, violent irrational behavior accompanied by profuse
sweating, public disrobing, extraordinary strength beyond their physical characteristics and a high
resistance to pain (sometimes called "Excited Delirium Syndrome (ExDS)"), or who requires a
protracted physical encounter with multiple officers to be brought under control, may be at an
increased risk of sudden death and shall be examined by qualified medical personnel as soon as
the symptoms are recognized. Any individual exhibiting signs of distress after such an encounter
shall be medically cleared prior to booking.
If any individual refuses medical attention, such a refusal shall be fully documented in related
reports and, whenever practicable, should be witnessed by another officer and/or medical
personnel. If an audio recording is made of the contact or an interview with the individual, any
refusal should be included, if possible.
200.4.3 ASSISTING MEDICAL PROFESSIONALS
(a) An officer who restrains a patient to assist medical personnel, with an amount of force which
does not rise above the level of holding the patient down (e.g. arms, legs, foot, torso) is not
required to report a Response to Resistance or notify their supervisor as outlined in APD
Policies 211 and 200.4.1.
1.
Medical personnel are:
(a)
Medical staff at a medical facility (e.g. Brackenridge, Austin State Hospital,
Seton)
(b)
Licensed emergency medical technicians (EMT), phlebotomist, or other
medical professional in performance of their official medical duties
(b)
If an officer uses a level of force greater than merely holding a limb or applying bodily
weight on the patient, the officer will adhere to APD Policies 211 and 200.4.1 Response to
Resistance by:
1.
Notifying their supervisor, and
2.
Completing an incident report including the title code 8400
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9/28/2022 11:58 AM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-20-003037
D-1-GN-20-003037
Daniel Smith
IRIS E. SALAZAR,
§
IN THE DISTRICT COURT
INDIVIDUALLY, AND AS
§
INDEPENDENT ADMINISTRATOR OF
§
THE ESTATE OF LESLIE YOLANDA
§
SALAZAR,
§
PLAINTIFF,
§
98th JUDICIAL DISTRICT
V.
§
§
THE CITY OF AUSTIN, TEXAS;
§
THOMAS BROWN; ELIAS ROBLES,
§
DEFENDANTS.
§
TRAVIS COUNTY, TEXAS
DEMAND FOR JURY TRIAL
TO THE HONORABLE DISTRICT COURT:
Iris E. Salazar, Individually, and as Independent Administrator of the Estate of Leslie
Yolanda Salazar, Plaintiff in the above-styled and numbered cause, demands a jury trial.
Respectfully submitted,
COOLEY BALTRUN PLLC
(FORMERLY MARTIN
MILLICAN
COOLEY,
PLLC)
By: /s/Scott S. Cooley
Scott S. Cooley
Texas Bar No. 00796394
304 E. Fourth St.
Lampasas, Texas 76550
Tel. (512) 556-6228
Fax. (844) 318-6073
scott@lampasaslawyer.com
ATTORNEY FOR IRIS SALAZAR
1
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Demand for Jury Trial has been served in accordance
with the Texas Rules of Civil Procedure on the following counsel of record on September 28,
2022, as follows:
H. Gray Laird, III
Assistant City Attorney
State Bar No. 24087054
City of Austin-Law Department
P. O. Box 1546
Austin, Texas 78767-1546
(512) 974-1342
(512) 974-1311 [FAX]
/s/Scott S. Cooley
Scott S. Cooley
2
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Kathleen Wolf on behalf of Scott Cooley
Bar No. 796394
Katy@LampasasLawyer.com
Envelope ID: 68693707
Status as of 10/3/2022 11:30 AM CST
Case Contacts
Name
BarNumber
Email
TimestampSubmitted
Status
Gray Laird
gray.laird@austintexas.gov
9/28/2022 11:58:43 AM
SENT