OPINION From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2014-CI-07249 Honorable Cathleen M. Stryker, Judge Presiding Opinion by: Liza A. Rodriguez, Justice Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice Liza A. Rodriguez, Justice Delivered and Filed: July 29, 2022 AFFIRMED The University of Incarnate Word (“UIW”) is a private institution of higher education that operates a state-authorized police department. UIW appeals the trial court’s interlocutory order denying its motion for summary judgment based on its peace officer’s affirmative defense of qualified immunity, and thus UIW’s derivative qualified immunity as his employer. We affirm the trial court’s order. Background This case arises from a UIW police officer’s use of deadly force following a traffic stop. In the early morning hours of December 6, 2013, UIW student Cameron Redus (“Cameron”) had parked at his off-campus apartment building when he was stopped by Cpl. Christopher Carter (“Carter”) of UIW’s police department for suspicion of driving while intoxicated. Their twelve- minute encounter resulted in Cameron being shot five times by Carter: once in his left eye, once in his upper anterior chest, once in his upper back, once in his left elbow, and once in his right lateral hip. The autopsy report concluded that the gunshot wounds to Cameron’s eye and upper back were fatal wounds and caused his death. Cameron’s parents, Valerie and Robert Redus, brought a wrongful death and survival action against UIW and Carter, alleging claims of negligence and gross negligence. In response to the lawsuit, UIW filed a “Plea to the Jurisdiction and Motion to Dismiss the Suit Against Cpl. Carter,” arguing that notwithstanding its private charitable status in Texas, it was entitled to governmental immunity with respect to the actions of its police department. In a previous interlocutory appeal, this court held that UIW was not entitled to governmental immunity and that the trial court had correctly denied its plea to the jurisdiction. Univ. of Incarnate Word v. Redus, 580 S.W.3d 184, 193 (Tex. App.—San Antonio 2018), aff’d, 602 S.W.3d 398 (2020). The supreme court affirmed, concluding that “private universities do not operate as an arm of the State government through their police departments” and thus do “not have sovereign immunity.” Univ. of Incarnate Word v. Redus, 602 S.W.3d 398, 413 (Tex. 2020). Thereafter, UIW filed in the trial court a traditional motion for summary judgment based on Carter’s qualified immunity and its derivative qualified immunity. The trial court denied the motion, and UIW filed this interlocutory appeal.[1] Discussion At issue in this appeal is whether the trial court erred in denying UIW’s traditional motion for summary judgment based on its employee’s official immunity. Carter, UIW’s employee, is a TCOLE-certified Texas peace officer. Section 51.212 of the Texas Education Code authorizes private universities “to employ and commission peace officers for the purpose of enforcing: (1) state law on the campuses of private institutions of higher education; and (2) state and local law, including applicable municipal ordinances, at other locations, as permitted by [s]ubsection (b) or [s]ection 51.2125.” TEX. EDUC. CODE ANN. § 51.212(a). Subsection (b) grants official immunity for such university police officers: Any officer commissioned under the provisions of this section is vested with all the powers, privileges, and immunities of peace officers if the officer: (1) is on the property under the control and jurisdiction of the respective private institution of higher education or is otherwise performing duties assigned to the officer by the institution, regardless of whether the officer is on property under the control and jurisdiction of the institution, but provided these duties are being performed within a county in which the institution has land; or . . . . TEX. EDUC. CODE ANN. § 51.212(b) (emphasis added). It is undisputed in this case that when Carter stopped Cameron, they were located on land in Bexar County where UIW “has land.” There is also no dispute in this case that Carter was performing duties of a UIW peace officer, rather than acting as a private citizen. Therefore, as a matter of law under section 51.212(b), Carter “was vested with all the powers, privileges, and immunities of a peace officer, which includes the ability to assert the affirmative defense of official immunity.” William Marsh Rice Univ. v. Refaey, 495 S.W.3d 531, 538 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). “Official immunity is an affirmative defense that ‘inures to all governmental employees who perform discretionary functions in good faith and within their authority.’” City of San Antonio v. Riojas, 640 S.W.3d 534, 537-38 (Tex. 2022). That is, a “governmental employee is entitled to official immunity for (1) the performance of discretionary duties (2) that are within the scope of the employee’s authority, (3) provided that the employee acts in good faith.” Telthorster v. Tennell, 92 S.W.3d 457, 461 (Tex. 2002). To be entitled to summary judgment on the official-immunity affirmative defense, a movant “must conclusively establish each of these elements.” Id. “In deciding whether an employee’s summary judgment proof conclusively establishes the official- immunity defense, we must determine whether there are disputed facts material to its elements.” Id. In this case, the parties do not dispute that Carter was performing a discretionary duty at the time he killed Cameron; nor do the parties dispute that this discretionary duty was within Carter’s scope of authority. They do, however, dispute whether Carter was acting in good faith. The supreme court has held that “when an officer is engaged in an arrest that results in injury to the suspect, a particularized need/risk assessment is not compelled in light of official immunity’s overriding purpose to reduce the threat that civil liability may deter arresting officers from acting with the ‘decisiveness and the judgment required by the public good.’” Id. at 464 (quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994)). Thus, to establish good faith, the movant in a case like this one “must show that a reasonably prudent officer, under the same or similar circumstances, could have believed that [the officer's] conduct was justified based on the information [the officer] possessed when the conduct occurred.” William Marsh, 495 S.W.3d at 538-39 (citing Telthorster, 92 S.W.3d at 465). The movant “need not prove that it would have been unreasonable not to engage in the conduct, or that all reasonably prudent officers would have engaged in the same conduct.” Id. at 539. “Rather, [the movant] must prove only that a reasonably prudent officer, under similar circumstances, might have reached the same decision.” Id. (emphasis in original). “That [the officer] may have been negligent will not defeat good faith; this test of good faith does not inquire into ‘what a reasonable person would have done,’ but into ‘what a reasonable officer could have believed.’” Id. (quoting Telthorster, 92 S.W.3d at 465) (emphasis in original). If the summary judgment movant meets this burden, then to raise a fact issue, the respondent must do “more than show a reasonably prudent officer could have reached a different decision.” Id. Instead, the respondent must offer evidence that “no reasonable officer in [the officer's] position could have believed that the facts were such that they justified his conduct.” Id. “If officers of reasonable competence could disagree on this issue, then [the movant] acted in good faith as a matter of law.” Id. In its motion for summary judgment, UIW argued that a reasonably prudent officer would have used lethal force under the facts of this case because the uncontroverted evidence showed that when Carter attempted to arrest Cameron, Cameron struggled, took away Carter’s handcuffs and baton, and hit Carter with the baton at least three times. According to UIW, Cameron “continued his physical attack on Cpl. Carter, despite numerous warnings from [Carter] that [Cameron] would be shot if he did not stop attacking Cpl. Carter and comply with lawful commands.” UIW argued the evidence shows “Carter shot [Cameron] while [Cameron] was advancing on him.” On appeal, UIW contends the summary judgment evidence “conclusively established that Carter lawfully stopped and attempted to arrest [Cameron] as a result of his driving while intoxicated” and that “[d]uring the altercation, [Carter] lawfully ordered [Cameron] numerous times to stop resisting.” According to UIW, “the detailed uncontroverted facts” demonstrate that Carter “was in fear for his life” and “that a reasonably prudent officer, under similar circumstances, might have reached the same decision as” Carter. Finally, UIW contends that the Reduses have not shown that no reasonably prudent officer would have acted as Carter did. In their response to UIW’s summary judgment motion and again on appeal, the Reduses emphasize that summary judgment is improper if an expert’s testimony regarding good faith is based on disputed facts. Indeed, in the context of whether the summary judgment evidence established an officer acted in good faith, this court has explained that “[w]here the underlying facts are in dispute,” “we need not even consider whether the defendant’s expert affidavit conclusively establishes good faith because the disputed fact issue precludes summary judgment.” Saenz v. Gonzalez, 94 S.W.3d 659, 663 (Tex. App.—San Antonio 2002, pet. denied) (emphasis added); see also Daniels v. Kelley, No. 04-09-00817-CV, 2010 WL 2935789, at *3 (Tex. App.— San Antonio July 28, 2010, no pet.) (mem. op.) (holding disputed facts precluded summary judgment being granted on basis that officer acted in good faith); DeLuna v. Aguilera, No. 04-08- 00009-CV, 2008 WL 2037424, at *4 (Tex. App.—San Antonio May 14, 2008, no pet.) (mem. op.) (holding disputed fact issue relevant to whether an immediate threat to the safety of the officers was posed by the plaintiff’s conduct precluded summary judgment); City of San Antonio v. Garcia, 974 S.W.2d 756, 758 (Tex. App.—San Antonio 1998, no pet.) (holding that “[b]ecause there remains a disputed fact issue—[the officer's] conduct during the traffic stop—we need not reach the issue of whether the defense’s expert affidavit is competent summary judgment evidence”); Martinez v. Mikel, 960 S.W.2d 158, 160 (Tex. App.—San Antonio 1997, no pet.) (holding summary judgment was properly denied because “whether a reasonably prudent officer in Martinez’s position could have perceived the need to use force against Kerry turns on whether Kerry’s hands were in his pockets when Martinez approached him”). The Reduses stress that all the expert testimony relied on by UIW in support of its motion for summary judgment is based on Carter’s version of the facts as detailed in his written statement. They emphasize UIW’s expert testimony does not discuss in any manner the evidence relating to the issue of good faith in the light most favorable to them. See Saenz, 94 S.W.3d at 663 (explaining that when underlying facts surrounding good faith are in dispute, appellate court need not consider whether the officer’s expert affidavit conclusively established good faith because the underlying disputed facts preclude summary judgment). We must thus determine whether the summary judgment record in this case shows the underlying facts relating to good faith are in dispute. UIW’s Version of the Underlying Facts UIW argues that the summary judgment evidence shows that Carter believed Cameron could have been intoxicated; that after detaining him for suspicion of driving while intoxicated, it was reasonable for Carter to handcuff Cameron for his safety; that Cameron resisted Carter’s efforts and repeatedly tried to head-butt Carter; that for an extended period of time, Cameron resisted Carter’s efforts to bring Cameron’s hands behind his back; and that because he could no longer hold onto Cameron’s wrists because of fatigue, Carter placed Cameron “in a bear-hug type hold” and continued to give verbal commands to stop resisting while waiting for other officers to arrive. According to UIW, at this point, Cameron was able to release his left arm and push Carter off him with his leg; it was then that Carter drew and deployed his baton, thinking Cameron would “hear the noise and stop his aggressive actions.” In support of these facts, UIW relies on the following portion of Carter’s voluntary written statement given under oath on December 6, 2013: I exited my patrol vehicle and yelled at the suspect to stop and place his hand[s] on the hood of his truck where I could see them. I radioed to Officer De Hoyos I would be out with one white male at the apartments behind the bank off Broadway north of my last location. The suspect barely put his hands on the front fender of the driver’s side of the truck. He kept saying and repeating, “What’s your f—ing problem.” He then removed his hands from the truck and faced me. When he faced me he put his hands and arms up as to challenge me and ask me “what my problem” was. I thought at this point that the suspect wanted to become combative. At this point, I was approximately about 10 feet away from the suspect. His actions outside the truck further added to my suspicion that he was intoxicated by alcohol or some other unknown substance. I ordered the suspect to place his hands back on the hood where I could see them. The suspect then moved to the front of the truck and placed his hands on the hood. The suspect asked what was going on and I told him he was being detained for suspicion of driving drunk. I approached the suspect and attempted to pat down the exterior of his clothing and asked him if he had anything that could hurt me on his person. I was standing behind the suspect and he was facing the windshield of his truck. The suspect stated “what is your problem” and took his hands off the hood of the truck. At about this time he turned his head in my direction over his left shoulder and was saying “what is your problem.” I could smell an alcoholic beverage on [h]is breath. He did not put his hands down again. I again told the suspect to place his hands on the hood. Officer De Hoyos asked for my location and I repeated my best estimate of where I was located and told Officer De Hoyos to tell Alamo Heights to look for my lights. Because I had just passed the two Alamo Heights officers in their patrol cars at the Firestone tire station, I thought that one or both of the officers were coming to my location within moments. I took my handcuffs out of their holder and asked the suspect to place his hands behind his back. I was going to handcuff the suspect for my safety. Before I could handcuff the suspect, he forcefully bumped me with his butt in an effort to get away from me. I attempted to grab the suspect’s hands to handcuff him. I was ale to grab onto his wrists and was attempting to bring his hands behind his back for handcuffing. The suspect was resisting my efforts to handcuff him. He rolled his arms under his upper body and leaned forward. This caused me to be pulled forward onto his upper back. Once I was pulled slightly forward, he repeatedly tried to head butt me. This seemed to last for an extended period of time and I was unable to bring his hands behind his back for handcuffing due to his resistance. Because I could no longer hold onto his wrists because of fatigue, I let go of his wrists and clasped my hands together in front of his body in a bear hug type hold. Officer De Hoyos continued to call out to me on the radio to check my status. I could not release my hold to respond on my radio. I continued to think the other officers were coming to my location. The suspect would yell out to me “You better tell them your status! Tell them you’re ok!” He also said something to the effect that I can feel your “dick in my ass” and “Do you want to f—k me in the ass.” I continued to give verbal commands to stop resisting and place his hand[s] behind his back. After what seemed to be several minutes of keeping the suspect restrained in a bear hug, the suspect was able to release his left arm and tried to get leverage on me. I was becoming fatigued and wondered where the other officers were located. The suspect was able to get enough leverage to turn around and face me while I was still gripping his right arm. The suspect leaned back onto the hood of the truck and moved his right leg and foot up towards my chest. I kept yelling for the suspect to stop resisting. The suspect yelled back, “That’s all you got?” When the suspect pushed me off with his leg, I drew out my asp baton. I deployed the asp. I thought that when the asp was deployed that the suspect may hear the noise and stop his aggressive actions. If this did not work, I had it available to use it to get leverage on him or to strike him if necessary to control his actions. The deployment did not stop his actions. The suspect rushed me and pinned my back up against the wall of the apartment building. When he came at me, I raised the asp to strike him, but he blocked my attempted strike and grabbed the asp out of my right hand. I was unable to grasp the asp hard enough because of the fatigue from the prolonged time I had him in the bear hug. Since he had the asp, I turned towards my right and raised my left arm in an attempt to protect myself from the blows of the asp that I thought would be coming. I then felt the blows from the asp on my left arm and my head. After getting struck, I was able to use my left hand to knock the baton from his right hand. I was getting extremely fatigued and could feel my arms getting weak. I placed the suspect in a head lock with my left arm and he began to punch my body with his right hand. I punched the male in the face with my right fist and the suspect backed out of my headlock while punching me in the kidney. During this time I was yelling for the suspect to stop. Once the suspect was away from me, I took a couple of steps back and took a “bladed off” position and took my gun out of [its] holster. I had my gun down at my side and my left ha[n]d outstretched. I yelled “Stop or I’ll shoot.” The suspect hesitated for [a] brief moment and rushed me again. I was in fear for my life. I was fatigued because of the prolonged physical struggle that I just had with the suspect and I did not think I could defend myself and more and fight him off. I was in fear that he was going to try to take my gun away from me when he attacked me again. The suspect was approximately less than three feet away from me and swung at me with his right fist and I fired at the suspect. The suspect continued to charge me and I continued to fire until he stopped. . . . In addition to Carter’s written statement, UIW also attached to its summary judgment evidence a declaration by former San Antonio Police Department Chief Albert A. Ortiz; a FBI unclassified report; an Alamo Heights Police Department Offense/Incident Report Aggravated Assault, Public Servant (felony); excerpts from the deposition of Texas Ranger Keith John Pauska; a Report of Investigation by the Texas Department of Public Safety Texas Ranger Division written by Pauska; excerpts from the deposition of Adrianna DeHoyos, one of Carter’s co-workers, and excerpts from the deposition of Chief Jacob Colunga. UIW stresses that the above expert testimony and reports all conclude that Carter’s action of using lethal force was reasonable. However, as pointed out by the Reduses, all the above also assumes Carter’s version of the facts. That is, the above evidence assumes Cameron acted as the aggressor, resisted Carter’s attempts to detain him, would not follow commands, physically assaulted Carter, and ultimately took away Carter’s baton and was wielding it as a weapon against Carter when Carter used lethal force. In Ortiz’s declaration, Ortiz states that Cameron “grabbed Cpl. Carter’s baton and struck him two to three times.” Ortiz continues that “[t]hroughout the encounter, [Cameron] Redus assaulted Cpl. Carter by punching and kicking him, as well as attempting to head butt him.” Ortiz stresses that “[w]hen an officer’s weapon is taken from him and used against him during an escalating physical confrontation, a reasonably prudent officer could believe he is in imminent danger of serious bodily injury or death.” Similarly, the FBI unclassified report states that “Carter then attempted to use his baton to subdue [Cameron] Redus,” and “[Cameron] Redus took the baton away from Carter and hit Carter approximately three (3) times with the baton.” (emphasis added). Likewise, the Alamo Heights Police Department offense report states that Carter said that Cameron “did have [his] baton at the time of the scuffle” and that Cameron struck him “several times with the listed baton.” Pauska also stated in his deposition that Cameron took away Carter’s baton and struck Carter with the baton. Pauska discussed “continuum of force,” which “starts with verbal, and then it goes to light hands or soft hands, hard hands, and then your intermediate weapon, such as O.C. spray, taser. You have your baton, and then you have—ultimately, have deadly force.” Pauska was then asked “[w]hen an officer’s weapon is taken from him, is it reasonable, in [his] opinion, for that officer to be fearful for his life?” Pauska replied, “Yes.” The TDPS Texas Ranger Division report, which was written by Pauska, also states that a “physical altercation ensued in which [Cameron] Redus took Corporal Carter’s ASP baton and assaulted Corporal Carter with it.” In the excerpts from Adrianna DeHoyos’s deposition, she noted that Carter had told her Cameron had hit him with his baton. Finally, in Jacob Colunga’s deposition, he relies on the representation by Carter that Cameron took away Carter’s baton: “If an individual is being attacked by an ASP baton which is an intermediate weapon, it can cause inflict [sic] serious bodily injury and also cause death, then if [the] individual need[s] to protect [his] own life or the life of someone else, the police officer is allowed to use deadly force.” Thus, all the evidence relied on by UIW to show that Carter acted in good faith in his use of deadly force presumes Carter’s version of events. Among other factors, key to the issue of good faith is whether Carter’s baton was taken away from him by Cameron and used to assault Carter. The purported use of the baton by Cameron is thus a relevant material fact and a necessary premise to UIW’s position that a reasonable officer could believe that the use of deadly force was justified to prevent his firearm from being taken away from him and used against him or others. The Reduses’ Version of the Underlying Facts As noted, the Reduses argue granting summary judgment on this record would be improper because the underlying facts regarding good faith are in dispute. See Saenz, 94 S.W.3d at 663. They emphasize the summary judgment record raises the following issues of material fact: (1) whether Cameron ever grabbed Carter’s baton; (2) whether Cameron ever hit Carter with the baton; and (3) whether Cameron was the aggressor. In support of their argument that the underlying facts are in dispute, the Reduses point to an audio recording of the encounter between Carter and Cameron, which has been included in the summary judgment record.[2] The recording is taken from a rear-facing camera on Carter’s patrol vehicle. While Carter and Cameron cannot be seen on the video, they can be heard. In listening to the audio recording of the encounter, a reasonable factfinder could interpret Carter’s tone as aggressive while interpreting Cameron’s tone as sarcastic, or perhaps at times, as in disbelief. Also included in the summary judgment record is an FBI transcript of the recording: Carter: Stay right there. Stay right there. Cameron: Alright [unintelligible]. Carter: Stay right there. Cameron: [Unintelligible]. Carter: Stay right there; put your hands on the hood. Cameron: That’s fine. Carter: Put your hands on the hood. [Beep] [Background noise] Carter: Stay right there. Cameron: Hey, hey-hey. Carter: 205…212…One male. [Noise] Carter: I need— Radio: [Overlapping voices] [unintelligible]. Carter: —Going to be the first light. Radio: [Overlapping voices] Location. Carter: It’s going to be the, uh, [beep] first light past, uh, Preston . . . here in the apartment complex behind the bank. [Noise] Carter: You have anything on your . . . Put your hands on the hood. Radio: [Overlapping voices] [unintelligible] Preston and [unintelligible]. Carter: [Overlapping voices] Put your hands on the hood. [Noise] Carter: Put your hands on the hood now. Cameron: That’s fine, that’s fine, that’s fine. [Background noise] [Noise] Carter: Lean forward. [Noise] Carter: Anything in your pockets I need to know about? [Noise] Cameron: No, sir. [Noise] Carter: [Unintelligible] back. [Noise] Carter: [Unintelligible] your back . . . behind your back. [Noise] Radio: 205 are you at, uh, Preston in Alamo Heights? [Noise] Carter: HEY! Cameron: Hey, hey-hey . . . hey— Carter: [Overlapping voices] Put your hands behind your back. Cameron: You’re freaking me out man. Carter: Put your hands behind your back. Cameron: I feel like I’m going to get raped right now. Carter: You’re not getting raped. Put your hands behind your back. [Noise] Cameron: Dude, you’re scaring me. Carter: Put your hands behind you[r] back! [Noise] Carter: PUT YOUR HANDS BEHIND YOUR BACK! Cameron: You’re f—king like . . . scaring the shit out of me right now. [Noise] Carter: Put your hands behind your BACK! Cameron: Are you going to rape me right now? [Noise] Carter: You’re under arrest. Cameron: Look dude . . . look— Carter: [Overlapping voices] Put your hands behind your back! Cameron: That’s fine . . . that’s fine. [Noise] Cameron: But if you’re trying to do some weird shit to me . . . Carter: [Overlapping voices] Put your hands behind your back! Cameron: I’m not trying to get down with that right now [unintelligible]. Carter: Put your hands behind your back . . . Stop resisting. [Pause] Carter: Put your hands behind your back. [Background noise -- police radio] Cameron: Look man . . . seriously. Carter: Put your hands behind your back. Cameron: [Unintelligible] right now. Carter: Hands behind your back. Cameron: [Unintelligible] right now. Seriously, do you see that? [Background noise-police radio] Cameron: Seriously . . . Look . . . [unintelligible] chill right now. Carter: Put your hands behind your back. Cameron: Do you have you[r] f—king penis against my asshole right now? Carter: I don’t have anything against you. [Background noise-police radio] Cameron: You need to chill right now. [Pause] [Background noise-police radio] Cameron: You need to tell them your status right now, [unintelligible] chill right now. Carter: Get your hands behind your back. Cameron: You are squeezing me [unintelligible] . . . You need to tell them right now [unintelligible] f—king like, you need to chill right now . . . Seriously, you need to call in that shit right now. You need to chill . . . you need to chill right now, dude . . . seriously. Carter: Hands behind your back. Cameron: I can’t because you’re squeezing me right now. Carter: Stop moving. Cameron: You need to tell them right now . . . that you are chill and nothing [unintelligible] going on right now . . . Alright? Carter: Relax your body. Cameron: My body’s f—king relaxed [unintelligible]. Carter: [Overlapping voices] Lean forward onto the hood . . . Lean forward. [Noise] [Pause] [Noise] Cameron: Hey . . . Dude stop [unintelligible] relax. Carter: STOP RESISTING! [Noise] Carter: Stop resisting! [Noise] [Pause] Carter: Stop resisting. [Pause] Carter: Stop resisting. Look forward . . . Look forward. [Background noise- Police radio] Carter: Look forward. [Noise] [Background noise- Police radio] Cameron: You can barely hear that thing . . . seriously. [Noise] Cameron: I mean seriously [unintelligible]. Carter: [Overlapping voices] Lean forward . . . stop looking my way . . . look forward. Cameron: Like what do you [unintelligible]. Carter: [Overlapping voices] Look towards your truck. Cameron: [Unintelligible]. Carter: Why are you resisting? Cameron: Let me tell you [unintelligible]. Carter: Why are you resisting? Cameron: [Unintelligible]. Carter: [Overlapping voices] You’re resisting arrest. Cameron: I’m under arrest? Carter: [Overlapping voices] Yes. Cameron: I’m being arrested right now. Carter: You are being arrested. Cameron: [Unintelligible] seriously. Carter: You understand red and blue lights? Cameron: I don’t— Carter: [Overlapping voices] [unintelligible] Traffic stop. Cameron: A traffic stop . . . [unintelligible] [noise] [unintelligible] traffic [unintelligible] right now, seriously. Carter: Stop resisting! Cameron: [Unintelligible]. Carter: Stop resisting. [Pause] Carter: Stop resisting. [Noise] [Background noise] Carter: Stop resisting. [Pause] [Noise] Carter: Stop resisting! [Pause] [noise] [pause] Cameron: [Unintelligible]. Carter: You need to stop resisting. [Noise] Carter: If you stop resisting, you can go peacefully. [Pause] [Background noise- police radio] Cameron: Man, [unintelligible], home right now, dude . . . shit. [Noise] Carter: You need to stop resisting . . . Lay down . . . Lay down on the hood. . . Lay down on the hood . . . [Noise] Carter: Lay down on the hood. [Noise] Cameron: [Unintelligible]. Carter: Lay down . . . give me this arm. Give me this arm. Cameron: Hey-Hey. Seriously do you have [unintelligible] do you have your dick up [unintelligible]. Carter: It’s not my dick up your ass. 205 [unintelligible] behind . . . the apartments behind the bank on Broadway, past Preston. Radio: [Unintelligible]. Cameron: Dude, seriously, get the f—k off me right now. [Beeping sound]. Carter: Look for my red light . . . red and blue lights. Radio: [Unintelligible]. Cameron: [Unintelligible]. Carter: What’s your address? [Noise] Carter: What’s the street right here? [Beeping sound] [unintelligible] Carter: Look forward. Cameron: [Unintelligible] . . . I have to [unintelligible]. Carter: Stop resisting, God damn it! [Noise] Cameron: [Unintelligible]. Carter: Stop resisting. [Noise] Carter: Stop resisting, God damn it! [Noise] Cameron: [Unintelligible]. Radio: [Unintelligible] be there . . . shortly. [Noise] Carter: Stop resisting! Radio: Your status, sir. Carter: Stop resisting! [Noise] [Background noise] Carter: Stop resisting. [Noise] Carter: Stop resisting. [Noise] Cameron: [Unintelligible]. [Noise] Cameron: [Unintelligible] f—king [unintelligible]. Carter: Stop resisting. [Noise] Cameron: [Unintelligible]. [Noise] Carter: [Unintelligible] RELAX! Cameron: That’s my hat, dude [Unintelligible]. Carter: RELAX! [Noise]Carter: Stop it! Carter: Stop! Carter: Stop! [Noise] [Noise] [Noise] Cameron: You tried to f—king choke me, dude. Carter: Stop! [Noise] Carter: Stop! Cameron: You tried to f—king— Carter: [Overlapping voices] Stop! Cameron: —choke me . . . seriously. Carter: [Overlapping voices] Stop or I will shoot! Cameron: You’re a f—king— Carter: [Overlapping voices] STOP! Cameron: —shoot me. Carter: Stop or I will shoot! Cameron: You’re going to f—king shoot me? Carter: STOP! Cameron: For—for trying to make you not choke me right now. Carter: STOP! Don’t put your leg up! Stop resisting! Cameron: [Overlapping voices] Are you going to shoot me? Carter: Stop resisting! Cameron: You’re going to shoot me [unintelligible]. Carter: STOP RESISTING! STOP RESISTING! Cameron: You’re going to shoot me if I don’t stop . . . Carter: [Overlapping voices] STOP RESISTING! STOP! [Noise] Carter: STOP! STOP! [Noise] Carter: Stop or I will shoot you! Cameron: You’re going to f—king shoot me? Carter: Stop or I will shoot you! Cameron: You are pathetic. Carter: STOP! Cameron: You’re pathetic. Carter: Stop. Cameron: You’re going to shoot me if I don’t stop? Carter: Yes. [Noise] Carter: Stop! Cameron: Is that what [Noise] Cameron: cops do? Carter: STOP! [Noise] Cameron: You shoot people if they don’t stop. [Noise] Carter: [Overlapping voices] Stop! [Noise] Carter: Stop! Carter: Stop! [Noise] Cameron: You piece of f—king shit. [Noise] Carter: Stop! Cameron: You’re going to shoot me if I don’t— [Noise] Carter: [Overlapping voices] Stop! Cameron: f—king [unintelligible]. [Noise] Carter: Stop! Carter: STOP! [Noise] [Noise] Carter: Stop, God damn it! [Beeping sound] Carter: Stop! Cameron: You’ve got to be f—king . . . Carter: [Overlapping voices] Stop! Cameron: [Unintelligible] shoot. [Noise] Carter: STOP! STOP! [Noise] Carter: STOP! Carter: STOP! Carter: STOP! [Noise] [Heavy breathing] [Noise] [Heavy breathing] [Noise] Carter: Get back . . . Get back. [Noise] [Banging sound 1] [Metallic sound] [Banging sound 2] [Metallic sound] [Banging sound 3] [Metallic sound] [Banging sound 4] [Distortion] [Banging sound 5] [Beeping sound] [Banging sound 6] [Beeping sound] [Heavy breathing] Radio: [Unintelligible] hit your toner, please hit your toner so we can locate you. [Heaving breathing] [Pause] Carter: 205 . . . 212 . . . Shots fired . . . shots fired. Send EMS. I have one down. . . . The Reduses also point to the deposition testimony of Kyle Carnett, the only eyewitness to the encounter between Carter and Cameron. Carnett testified that before he went outside, he heard “the officer telling someone to stop resisting.” When he went outside, he saw “two men in an altercation, a physical altercation.” The officer was “heavyset,” and the other man looked to be “college-age, [a] wiry kid.” Carnett confirmed that he did not see anything in Cameron’s hands and at no time did he see Cameron holding a baton or any other weapon. The Reduses also point to the latent print examination report, which stated “no suitable latent prints were observed or developed” from either Cameron or Carter on the baton. In addition, the Reduses point to Carter’s deposition testimony. Carter was asked whether his baton and his handcuffs were on the ground beside him. He refused to answer and asserted his Fifth Amendment privilege. He was also asked, “Cameron Redus at no point presented any danger—immediate danger of death or serious bodily injury to you or anyone else, did he?” In response, Carter asserted his Fifth Amendment privilege. Carter was further asked whether he was aware that at all times during their encounter Cameron was unarmed. Carter asserted his Fifth Amendment privilege. Carter was next asked whether in his written statement, he told the truth about the events of December 6th. Carter once again asserted his Fifth Amendment privilege. “In a civil case, a fact finder may draw negative inferences from a party’s assertion of the privilege against self- incrimination.” Brauss v. Triple M Holding GMBH, 411 S.W.3d 614, 623 (Tex. App.—Dallas 2013, pet. denied); see Wilz v. Flournoy, 228 S.W.3d 674, 677 (Tex. 2007) (per curiam) (“[T]he jury in this civil case was free to draw negative inferences from the [appellees'] repeated invocations of the Fifth Amendment.”); see also TEX. R. EVID. 513(c). Thus, in this case, a fact finder could draw negative inferences from Carter’s refusal to answer the above questions.[3] Finally, the Reduses point to an affidavit from their use of force expert, retired Chief of Police for the Dallas Independent School District Craig Miller, who testified that in his professional opinion, “the use of deadly force applied by Christopher Carter against Cameron Redus in this arrest situation was unreasonable and unnecessary.” Miller testified in traffic stops like the one at issue in this case, suspects “were most effectively controlled through de-escalation techniques.” Miller criticized Carter for failing “to employ similar techniques in this incident” and explained that Carter’s “first mistake was to be the aggressor.” Miller stated, All trained law enforcement officers learn in the academy and through continuing education to not aggressively approach people experiencing symptoms of intoxication. Experience has taught officers that approaching distressed people in a calm and rational manner will yield much better success rather than rushing the subject and escalating the situation. Miller noted that the toxicology report in this case confirmed that Cameron’s blood-alcohol concentration was 0.186, which is legally intoxicated. After listening to the audio recording of the encounter, Miller stated that “at no time did Cpl. Carter ever mention his asp baton in his entire 12-minute conversation with Cameron [Redus]” or “ did Cpl. Carter ever order Cameron to drop his baton or to put that baton down.” Miller then affirmed the use of lethal force was unreasonable under the circumstances of this case: It is my professional opinion that the use of deadly force employed by Christopher Carter was not necessary to effect the arrest of Cameron Redus. There was no urgency to arrest Cameron Redus for suspected DWI as he was off the public street and in his apartment complex. Cpl. Carter was off campus and could merely have waited for Alamo Heights officers to help in arrest[ing] Cameron. Miller reviewed various documents to support his opinions, including the pleadings, discovery, and, in particular, Carter’s personnel records from various employers. Miller noted evidence of Carter’s history of untruthfulness, prior incidents of engaging in deadly and/or reckless conduct, and using bad judgment by drawing his service weapon “when there were no apparent imminent threats of life or serious bodily injury to himself or another person.” According to Miller, Carter did not respond to Cameron, whom he believed to be intoxicated, as a reasonably trained officer should under the same or similar circumstances. Miller further noted he had reviewed evidence of Carter’s aggressive nature, including one incident where Carter had falsely accused another UIW student of causing a hit-and-run accident, and another incident where Carter had been admonished by Cpl. Jessica Serbantes for being verbally aggressive without reason toward two motorists while directing traffic at Incarnate Word High School. After a lengthy and detailed analysis of the evidence presented in this case, Miller concluded the following: [T]he use of deadly force employed by Christopher Carter was not necessary to effect the arrest of Cameron Redus. There was no urgency to arrest Cameron Redus for suspected DWI as he was off the public street and in his apartment complex. Cpl. Carter was off campus and could merely have waited for Alamo Heights officers to help in arrest[ing] Cameron. [I]t was Christopher Carter’s failure to use de-escalation techniques that contributed to Cameron Redus’s death. In the audio transcript, you can tell that Cameron was scared and questioning the arrest techniques that Carter was attempting to use. In use of force training, officers are taught joint and manipulation techniques to help them make arrests without having to use deadly force. Cameron Redus was not armed when he was shot and killed by Christopher Carter. Carter said in his police statement that nothing was in Cameron’s hands when he shot him. Carter, who was a trained Texas Peace Officer, weighed 130 pounds more than Cameron and says he was in fear for his life because he was exhausted. The scratches sustained by Carter certainly could have happened during their altercation when Carter said he placed Cameron in a bear hug and then into a headlock. In reviewing the summary judgment record, we conclude the facts surrounding the issue of good faith are in dispute. Accordingly, the trial court did not err in denying UIW’s motion for summary judgment. See Saenz, 94 S.W.3d at 663; see also Daniels, 2010 WL 2935789, at *3 (holding disputed facts precluded summary judgment being granted on basis that officer acted in good faith). Conclusion The trial court’s order denying UIW’s motion for summary judgment is affirmed. Liza A. Rodriguez, Justice
