Lawsuit Against Police Officer for Shooting During Burglary In Texas
In Martinez v. Mikel, 960 S.W.2d 158 (Tex. App.- San Antonio 1997, no writ), an officer was sued for shooting a young man during a burglary investigation. Martinez, 960 S.W.2d at 159.
According to the officer, he fired his weapon because he believed the young man was concealing a weapon in his pocket. Id.
The officer testified that when he instructed the young man to remove his hands from his pockets, the young man "turned slightly away from him and then quickly removed his hands from his pockets and made an assertive movement" toward him. Id.
A licensed peace officer concluded that the officer acted in good faith and reasonably under the circumstances. Id.
The young man, however, disputed the officer's version of events.
He testified that his "hands were outside of his pockets and at his sides at all times." Id.
He also denied making a threatening gesture towards the officer. Id.
Eye-witness testimony corroborated the young man's account. Id.
The young man also countered with an affidavit from a peace officer, who concluded the officer used excessive force and no reasonable peace officer would have used such force in a similar situation. Id.
Relying primarily upon Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997), the officer argued that the underlying factual dispute should not preclude summary judgment because the proper focus of this court's inquiry is on his perception of events at the time of the incident. Martinez, 960 S.W.2d at 160.
This court held that the inconsistencies in the summary judgment proof regarding the circumstances prior to the shooting created genuine issues of material fact on the issue of good faith. Id.
In reaching this conclusion, this court recognized that an officer's conduct is evaluated by an objective test, and determined that Wadewitz cannot be read to suggest that "summary judgment would be proper when an officer's perception of the facts squarely conflicts with eye-witness testimony." Martinez, 960 S.W.2d at 160-61.
Notably, the facts surrounding the officer's actions were not at issue in Wadewitz. Martinez, 960 S.W.2d at 161.