Full opinion text
MEMORANDUM AND ORDER CRONE, United States Magistrate Judge. Pending before the court are Defendant David Boling’s (“Boling”) Motion for Summary Judgment (# 66) and Defendant City of Houston’s (“the City”) Motion for Summary Judgment (#90). Boling and the City seek summary judgment on the Plaintiffs’ claims under 42 U.S.C. § 1983 and Texas state law. Having reviewed the pending motions, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that the .City’s motion for summary judgment should be granted and that Boling’s motion for summary judgment should be granted in part and denied in part. I. Background On August 7, 1994, at approximately 1:23 a.m., a shooting occurred in the parking lot of Honey’s Cue Club and Disco, also known as Palm’s Cue Club and Disco (“Cue Club”), located at 5259 Griggs Road in Houston, Texas. The Cue Club was owned by Defendant Lucious Carl James (“James”) and managed by James and his son, Richard Allen James (“Richard”). Approximately one year prior to the shooting, • Richard employed Boling and David A. Dunning (“Dunning”), both officers with the Houston Police Department (“HPD”), to provide security for the club on the weekends. The incident in dispute began when a fight broke out on the dance floor of the Cue Club between Morse Wayne Holland (“Holland”), age twenty, and several unknown patrons. Boling and Dunning, who were working authorized off-duty jobs in full uniform, separated the combatants and escorted them outside. Once outside, fighting erupted once again, and Boling and Dunning attempted to separate the participants. Boling was alerted that one of the men involved in the fight had a gun. From that point on, the parties’ versions of the ensuing events differ widely. Boling contends that he proceeded to investigate and, at the south end of the parking lot, some distance from the club, discovered Holland holding a Mossberg 12 gauge pump-type shotgun while facing some of the combatants. According to Boling, although he ordered Holland to drop the weapon, Holland instead turned, assumed an aggressive stance, and aimed the shotgun at Boling. Boling maintains that, in response, he fired his .40 caliber service revolver at Holland to prevent injury to himself and other patrons. Boling asserts that Holland then dropped the shotgun, ran to the opposite side of the parking lot, and fell to the ground. In contrast, the plaintiffs allege that Holland either never held the shotgun or dropped the weapon when Boling instructed him to do so. Under either scenario, the plaintiffs contend that Holland was not armed with a weapon when he was shot by Boling. Holland died of his wounds prior to the arrival of an ambulance. The plaintiffs- — Holland’s estate, parents, and son — instituted this action on August 1, 1996, seeking recovery of damages under 42 U.S.C. § 1983 and Texas law. On August 8, 1996, the City removed the case to federal court. The plaintiffs filed an amended complaint on September 16, 1998, asserting a wrongful death and survival action under Texas law, alleging negligence and gross negligence on the part of Boling and the City. The plaintiffs further assert that Boling and the City violated 42 U.S.C. § 1983 by depriving Holland of clearly established rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. They also allege that James violated the Texas Alcoholic Beverage Code by serving alcoholic beverages to Holland because he was a minor and was obviously intoxicated. Although James was served with the lawsuit on August 16,1996, he has not filed an answer. II. Analysis A. Summary Judgment Standard Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” fed. R. Civ. P. 56(c). A party seeking summary judgment bears the initial burden of informing the court of the basis for the motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which the party believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Marshall v. East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 321 (5th Cir.1998); Wenner v. Texas Lottery Comm’n, 123 F.3d 321, 324 (5th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1514, 140 L.Ed.2d 667 (1998). The moving party, however, need not negate the elements of the nonmovants’ case. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)). Once a proper motion has been made, the nonmoving parties may not rest upon mere allegations or denials in the pleadings, but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson, 477 U.S. at 257, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Marshall, 134 F.3d at 321-22; Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1075. All the evidence must be construed “in the light most favorable to the non-moving party without weighing the evidence, assessing its probative value, or resolving any factual disputes.” Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir.1996) (citing Lindsey v. Prive Corp., 987 F.2d 324, 327 n. 14 (5th Cir.1993)); see Marshall, 134 F.3d at 321; Messer v. Meno, 130 F.3d 130, 134 (5th Cir.1997), petition for cert. filed, — U.S. -, 119 S.Ct. 794, 142 L.Ed.2d 657 (1998) (No. 98-535); Hart v. O’Brien, 127 F.3d 424, 435 (5th Cir.1997), petition for cert. filed, — U.S. -, 119 S.Ct. 868, 142 L.Ed.2d 770 (1998) (No. 98-662). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n. 5, 111 S.Ct. 401, 112 L.Ed.2d 349 (1990) (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505); see Marshall, 134 F.3d at 321. Nevertheless, the nonmovants’ burden is not satisfied by “some metaphysical doubt as to material facts,” eonclusory allegations, unsubstantiated assertions, speculation, or “only a scintilla of evidence.” Little, 37 F.3d at 1075; see Hart, 127 F.3d at 435; Wallace, 80 F.3d at 1047; Douglass v. United Serv. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir.1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994)). Summary judgment is mandated if the nonmovants fail to make a showing sufficient to establish the existence of an element essential to their case on which they bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Wenner, 123 F.3d at 324. “In such a situation, there can be ‘no genuine issue as to any material fact’ since a complete failure of proof concerning an essential element of the nonmoring party’s case necessarily renders all other facts immaterial.” Id. at 322-23. B. Section 198S Claims Section 1983 creates a private right of action for redressing the violation of federal law by those acting under color of state law. See Migra v. Warren City School Dist. Board of Educ., 465 U.S. 75, 82, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 19, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981); Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); McIntosh v. Antonio, 71 F.3d 29, 33 (1st Cir.1995). It provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured .... 42 U.S.C. § 1983. “Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights conferred elsewhere.’ ” Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)); accord Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Young v. City of Killeen, 775 F.2d 1349, 1352 (5th Cir.1985); Carbonell v. Louisiana Dep’t of Health & Human Resources, 772 F.2d 185, 188 (5th Cir.1985). To prevail on a § 1983 claim, the plaintiffs must prove that a person acting under the color of state law deprived them of a right secured by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Augustine v. Doe, 740 F.2d 322, 324-25 (5th Cir.1984). Section 1983 complainants must support their claims with specific facts demonstrating a constitutional deprivation and may not simply rely on conclusory allegations. See Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.1995); Fee v. Herndon, 900 F.2d 804, 807 (5th Cir.), cert. denied, 498 U.S. 908, 111 S.Ct. 279, 112 L.Ed.2d 233 (1990); Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir.1986); Angel v. City of Fairfield, 793 F.2d 737, 739 (5th Cir.1986); Elliott v. Perez, 751 F.2d 1472, 1482 (5th Cir.1985). Thus, for the plaintiffs to recover, they must show that the defendants deprived them of a right guaranteed by the Constitution or the laws of the United States. See Daniels, 474 U.S. at 329-31, 106 S.Ct. 662; Baker, 443 U.S. at 139, 99 S.Ct. 2689; Thomas v. Sams, 734 F.2d 185, 190-91 (5th Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985). The plaintiffs must also prove that the alleged constitutional or statutory deprivation was intentional or due to deliberate indifference — not the result of mere negligence. See Farmer v. Brennan, 511 U.S. 825, 828-29, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986); Daniels, 474 U.S. at 328, 106 S.Ct. 662; Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The negligent deprivation of life, liberty, or property is not a constitutional violation. See Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir.1995); Fraire v. City of Arlington, 957 F.2d 1268, 1276 (5th Cir.), cert. denied, 506 U.S. 973, 113 S.Ct. 462, 121 L.Ed.2d 371 (1992); Herrera v. Millsap, 862 F.2d 1157, 1160 (5th Cir.1989); Simmons v. McElveen, 846 F.2d 337, 339 (5th Cir.1988); Young, 775 F.2d at 1353. Moreover, to hold a defendant liable under § 1983, the plaintiffs must adduce facts demonstrating the defendant’s participation in the alleged wrong. See Murphy v. Kellar, 950 F.2d 290, 292 (5th Cir.1992); Jacquez, 801 F.2d at 793. 1. Claim Against Boling The plaintiffs are suing Boling both individually and in his official capacity as a City of Houston police officer. To the extent he is sued in his official capacity, Boling’s liability is coextensive with that of the City. Official-capacity lawsuits are typically an alternative means of pleading an action against the governmental entity involved. See Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). A suit against an official in his official capacity is not a suit against the official personally, but rather is a suit against the official’s office. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Brandon v. Holt, 469 U.S. 464, 471, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985); Monell v. Department of Social Servs., 436 U.S. 658, 691 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Ganther v. Ingle, 75 F.3d 207, 209 (5th Cir.1996). As such, it is no different than a suit against the City itself. See Will, 491 U.S. at 71, 109 S.Ct. 2304 (citing Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Monell, 436 U.S. at 691 n. 55, 98 S.Ct. 2018); Baker v. Putnal, 75 F.3d 190, 195 (5th Cir.1996). The United States Supreme Court has observed: As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity. Thus, while an award of damages against an official in his personal capacity can be executed only against the official’s personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself. Graham, 473 U.S. at 166, 105 S.Ct. 3099 (citations omitted). Hence, “[t]here is no longer a need to bring official-capacity actions against local government officials, for under Monell .. . local government units can be sued directly for damages and in-junctive or declaratory relief.” Id. at 167 n. 14, 105 S.Ct. 3099; see Monell, 436 U.S. at 690, 98 S.Ct. 2018. Because “the Eleventh Amendment does not apply to ‘counties and similar municipal corporations,’ ” the City may be subject to claims for monetary and injunctive relief under § 1983. Crane v. Texas, 759 F.2d 412, 415 (5th Cir.), cert. denied, 474 U.S. 1020, 106 S.Ct. 570, 88 L.Ed.2d 555 (1985) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 150 n. 34, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (quoting Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977))); see Van Ooteghem v. Gray, 584 F.Supp. 897, 898 (S.D.Tex.1984), aff'd as modified, 774 F.2d 1332 (5th Cir.1985) (citing Bennett v. City of Slidell, 728 F.2d 762, 765 n. 1 (5th Cir.1984), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985)). Therefore, the plaintiffs’ action against Boling in his official capacity is merely redundant and is of no independent legal significance. a. Excessive Force Claim The plaintiffs claim that Boling used excessive force against Holland in violation of his rights under the Fourth, Fifth, and Fourteenth Amendments. The Supreme Court has made clear that “all claims that law enforcement officials have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard rather than a substantive due process approach.” Graham, 490 U.S. at 395, 109 S.Ct. 1865; see Gutierrez v. City of San Antonio, 139 F.3d 441, 446 (5th Cir.1998); Harper v. Harris County, 21 F.3d 597, 600 (5th Cir.1994); Mouille v. City of Live Oak, 918 F.2d 548, 550 (5th Cir.1990); Hay v. City of Irving, 893 F.2d 796, 798 (5th Cir.1990). “Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process,’ ” as invoked by the plaintiffs in their Fifth and Fourteenth Amendment claims, must be the guide for analysis. Graham, 490 U.S. at 395, 109 S.Ct. 1865. “While it is not always clear just when minimal police interference becomes a seizure, there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Anendment.” Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (citation omitted). Thus, a deadly force complaint under § 1983 brought by a free citizen must be analyzed according to Fourth Amendment standards. See Stroik v. Ponseti 35 F.3d 155, 157 (5th Cir.1994), cert. denied, 514 U.S. 1064, 115 S.Ct. 1692, 131 L.Ed.2d 556 (1995); Reese v. Anderson, 926 F.2d 494, 500 (5th Cir. 1991); Drain v. Galveston County, 999 F.Supp. 929, 933 (S.D.Tex.1998). To prevail on a claim for the use of excessive force under the Fourth Amendment, a § 1983 plaintiff is required to prove that he: “(1) suffered some injury, which (2) resulted from force that was clearly excessive to the need for force, (3) the excessiveness of which was objectively unreasonable.” Heitschmidt v. City of Houston, 161 F.3d 834, -, 1998 WL 809036, at *6 (5th Cir.1998);. accord Carter v. Fenner, 136 F.3d 1000, 1010 (5th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 591, 142 L.Ed.2d 534 (1998); Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir.1996); Fontenot v. Cormier, 56 F.3d 669, 675 (5th Cir.1995); Harper, 21 F.3d at 600; Valencia v. Wiggins, 981 F.2d 1440, 1446 (5th Cir.), cert. denied, 509 U.S. 905, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993); Knight v. Caldwell, 970 F.2d 1430, 1432 (5th Cir.1992), cert. denied, 507 U.S. 926, 113 S.Ct. 1298, 122 L.Ed.2d 688 (1993). In 1992, the Supreme Court rejected the Fifth Circuit’s previous requirement that a “significant injury” be shown to establish a viable excessive force claim. See Hudson v. McMillan, 503 U.S. 1, 9,112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Thus, the absence of serious injury, while relevant to the inquiry, does not preclude relief. See id. at 7, 112 S.Ct. 995; Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir.1998); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997). Nevertheless, the injury must be more than de minimis. See Hudson, 503 U.S. at 10, 112 S.Ct. 995; Baldwin, 137 F.3d at 839; Siglar, 112 F.3d at 193; Knight, 970 F.2d at 1432-33. If any of the three elements fails, the plaintiffs claim of excessive force will not succeed. See Huong v. City of Port Arthur, 961 F.Supp. 1003, 1006 (E.D.Tex.1997). “As in other Fourth Amendment contexts, ... the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397, 109 S.Ct. 1865 (citing Scott v. United States, 436 U.S. 128, 137-39, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978)); accord Ikerd, 101 F.3d at 430. “An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.” Graham, 490 U.S. at 397, 109 S.Ct. 1865 (citing Scott, 436 U.S. at 138, 98 S.Ct. 1717). In making a determination of objective reasonableness, the court must look at the “totality of the circumstances.” See Stroik, 35 F.3d at 158. “Because ‘[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,’ ... its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (quoting Bell v. Wolfish, 441 U.S. 520, 550, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (citing Garner, 471 U.S. at 8-9, 105 S.Ct. 1694)). “In gauging the objective reasonableness of the force used by a law enforcement officer, we must balance the amount of force used against the need for that force.” Ikerd, 101 F.3d at 434. “[A] constitutional violation does not occur every time an officer touches someone.” Id. “ ‘Not every push or shove, even if it may later seem unnecessary in the peace of the judge’s chambers,’ violates the Fourth Amendment.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)). In addition, the amount of force that is constitutionally permissible must be judged by the context in which the force is deployed. See Baldwin, 137 F.3d at 840; Ikerd, 101 F.3d at 434. As the Fifth Circuit observed in Ikerd: For example, a convicted prisoner clearly does not have a cognizable eighth amendment claim every time he or she is pushed or shoved. Similarly, even in the fourth amendment context, a certain amount of force is obviously reasonable when a police officer arrests a dangerous, fleeing suspect. On the other hand, in the context of custodial interrogation, the use of nearly any amount of force may result in a constitutional violation when a suspect ‘poses no threat to [the officers’] safety or that of others, and [the suspect] does not otherwise initiate action which would indicate to a reasonably prudent police officer that the use of force is justified. Similarly, we believe that the amount of injury required to prevail in an excessive force action depends on the context in which the injury occurs. Nonetheless, this circuit currently requires a plaintiff to have ‘suffered at least some injury.’ As the Supreme Court has recognized, however, ‘the extent of injury suffered by a [plaintiff] is one factor that may suggest whether the use of force’ was excessive ‘in a particular situation.’ Therefore, the amount of injury necessary to satisfy our requirement of ‘some injury’ and establish a constitutional violation is directly related to the amount of force that is constitutionally permissible under the circumstances. Id. at 434-35 (citations omitted). The determination of whether a particular use of force was reasonable under the Fourth Amendment “must be judged from the perspective of a reasonable officer on the scene, rather than with the 2%o vision of hindsight.” Graham, 490 U.S. at 397, 109 S.Ct. 1865; accord Carter, 136 F.3d at 1010. “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97, 109 S.Ct. 1865. As the Supreme Court explained in County of Sacramento v. Lewis: Like prison officials facing a riot, the police on an occasion calling for fast action have obligations that tend to tug against each other. Their duty is to restore and maintain lawful order, while not exacerbating disorder more than necessary to do their jobs. They are supposed to act decisively and to show restraint at the same moment, and their decisions have to made ‘in haste, under pressure, and frequently without the luxury of a second chance.’ 523 U.S. 833, 118 S.Ct. 1708 at 1720, 140 L.Ed.2d 1043 (1998) (quoting Whitley, 475 U.S. at 320, 106 S.Ct. 1078). When deadly force is involved, the Supreme Court has held that officers cannot resort to deadly force unless they “have probable cause ... to believe that the suspect [has committed a felony and] poses a threat to the safety of the officers or a danger to the community if left at large.” Garner, 471 U.S. at 6, 105 S.Ct. 1694; see Fraire, 957 F.2d at 1278. Clearly, “[a] police officer may not seize an unarmed nondangerous suspect by shooting him dead.” Garner, 471 U.S. at 11, 105 S.Ct. 1694. Nonetheless, “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” M; Fraire, 957 F„2d at 1280. “Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” Garner, 471 U.S. at 11-12, 105 S.Ct. 1694. Therefore, an officer is not prevented “from using deadly force in self-defense when the officer has probable cause to believe that the suspect poses a threat of serious physical injury or death to the officer.” Fraire, 957 F.2d at 1280. Here, it is undisputed that Boling used deadly force and that Holland died as a result of three gunshot wounds he inflicted — one to the abdomen, one to the back, and one to the arm. The plaintiffs’ allegations that Boling was negligent in seven specified instances are not actionable under § 1983, as liability for a deprivation of civil rights requires a showing that the defendant’s actions were intentional or due to deliberate indifference. See Farmer, 511 U.S. at 828-29, 114 S.Ct. 1970; Davidson, 474 U.S. at 348, 106 S.Ct. 668; Daniels, 474 U.S. at 328, 106 S.Ct. 662; Gamble, 429 U.S. at 105, 97 S.Ct. 285; Young, 775 F.2d at 1353. Thus, a § 1983 plaintiff has “no constitutional right to be protected from [a] merely negligent conclusion” concerning his involvement in criminal activity. Campbell, 43 F.3d at 977. Nevertheless, the plaintiffs have satisfied the first element and part of the second element of a claim for excessive force under § 1983. Questions of fact exist, however, as to wheth.er the force applied by Boling was clearly excessive to the need and objectively unreasonable. Specifically, there is conflicting evidence concerning whether Holland was holding a gun when he was shot by Boling. In his statement to the HPD on the night of the shooting, Boling stated: After I got outside the club a second fight started down the sidewalk and as I attempted to pull the males apart it quickly escalated to approximately 4 or 5 persons. Simultaneously, someone started yelling “he’s going to get a gun,” and I also heard someone yelling “he’s got a gun.” At this time I, D.M. Boling left the group that was fighting and started looking for someone in possession of a weapon. I had positioned myself behind some parked cars and close to the Griggs road side of the parking lot. I observed a very large black male with a black shotgun facing the disturbance. I at this time yelled at him very loud to drop the gun. The area was well lumi-nated [sic] and I was in uniform. He was looking directly at me after I gave that order. After I ordered him to drop the gun, he turned directly at me and raised the weapon to hip level. He then took an aggressive firing stance. At this point 1 was in immediate danger of serious bodily injury and death. I started to fire my weapon. He then went into a semi crouch position and was still pointing the shotgun at me. I continued firing my weapon as long as he, the suspect, remained in the firing position. After my weapon was empty he turned with the weapon still in hand. He then began to run from behind the black Ford, which he was standing behind. He then ran from the back rear passenger side to the drivers side of the Ford. He then slipped and dropped his weapon, which fell partially into the street near the curb. He continued to run to the front of the Ford. I was unable to observe him any at this time, but I was able to see the weapon. I ran to the location to secure the weapon as there were a number of persons in the immediate area. My partner, D.A. Dunning, ran to the location of the suspect and secured the suspect. We immediately contacted H.F.D. for medical treatment of the suspect and notified all appropriate HPD personnel. While Boling asserts that Holland had a shotgun in his hand when he shot him, the plaintiffs disagree, pointing to the deposition testimony of Malcolm Cerf (“Cerf’) and his sister, Shackquelyn Cerf (“Shackquelyn”). Neither Cerf nor Shackquelyn gave a statement to the police on the night of the shooting, but approximately four years later, each testified that Holland was unarmed when shot by Boling. Cerf testified: Q: When did you first see the officer who did the shooting in the parking lot? A: When the guy [Holland], like, ran over by his car, that’s when I noticed the officer was standing on the side here. Q: So when the guy ran over by the car, you saw the officer on the side of you? A: Yes, sir, right'over in like here (indicating). Q: Okay. How close was the officer standing to you? A: About like an arm distance probably. Q: So the officer was standing an arm’s length away from you? A: Yes, sort of. Q: Okay. And so when you heard the officer’s gun go off, okay, did you see the officer point the gun to the boy? Á: Yes, he had it like that (indicating). Q: Okay. Did you see the gun go off? A: I didn’t see it, but I heard it. Q: Okay. How do you know it was the officer’s gun? A: That’s the only one that, you know, know that had a gun, and then somebody in the crowd hollered, “He got a gun.” And that’s when the officer, like, pulled his, and then they hollered and told him get down and waited so long and that’s when I heard a gunshot. Q: Okay. The officer told the other person, the other boy to get down? A: Yes, sir. Q: And then there was a pause? A: Yes, sir. Q: And then you heard gunshots? A: Yes. sir. Q: What were you doing when you heard gunshots? A: I was ducking. ‡ ‡ Q: Were you still able to see what was going on? A: Yes, sir. :}: ;Js Q: When the police officer yelled at the boy, did you see the boy raise a gun and point it at the police officer? A: No, sir, not by my knowledge. Q: Did you see him raise a shotgun and point it at the police officer? A: No, sir. Q: Did you duck because a gun was pointing in your direction? A: No, sir. Q: Is it fair to say that if you were arm’s length away from the police officer and a shotgun was pointed at the police officer, that you would have noticed that shotgun? A: If he pointed the gun at the police officer? Q: Yes. A: Yes, sir, I would have been able to. Q: After the police officer yelled “get down” and there was pause and you heard the shot, what happened then? What did you see then? A: Just like the guy laying on the floor. Q: After he was lying on the ground, did you see a gun? A: No, sir, not by my knowledge. Shackquelyn, who broke off a two-year relationship with Holland’s cousin, Issac Holland (“Isaac”), the day after the shooting, offered testimony similar to her brother’s, stating: Q: So Officer Boling was watching Morse Holland approach his car? A: Yes, sir. Q: And you were able to observe what Officer Boiling was doing and what Morse Holland was doing at the same time? A: Yes, sir. Q: After Morse Holland got to his car, in your own words, tell us what happened. A: That’s when Officer Boling told him to stop and turn around. Well, Morse had his left-hand up and his right hand down by his side; but you could see the palm of his right hand. And when we turned around, that’s when somebody yelled he has a gun, and Officer Boling and the other officer shot. So didn’t nobody never see a gun with Morse. We don’t know who yelled that or what they was yelling that for. # ifc sjs % ‡ i{i Q: Did you see a gun? A: No, sir. Q: Did you see Morse Holland turn and aim a gun at Officer Boling? A: No, sir.' Q: Did you see Morse Holland turn and aim a shotgun at Officer Boling? A: No, sir. Q: Did you see Morse Holland turn, aim a shotgun, holding the shotgun with two hands towards Officer Boling? A: No, sir. Q: Did you see Morse Holland throw a shotgun away? A: No, sir. Q: Did you see anybody else out there with a shotgun? A: No sir. Once they started shooting him, everybody’s attention dwelled on the guy. Q: How many commands, as far as you can tell, as far as you can recall, how many commands did Officer Boling give Morse Wayne Holland? A: Three. Q: Can you recall what he said? A: The first one was, “Stop.” The second was to turn around. And the third one was to walk away from the car. Q: Did Morse Wayne Holland obey those commands? A: Yes, sir. The plaintiffs also provide the affidavit of Isaac, dated August 23, 1998, who recanted his previous statement given to HPD investigators on August 7, 1994, that he saw Holland “with a shotgun in his hands” on the night of the shooting. Although Isaac described the shotgun in some detail and gave information about its ownership and location in his prior statement, in his more recent affidavit, Isaac states that he “did not personally see Holland with a gun or weapon on that night.” Thus, Cerf s and Shackquelyn’s accounts of the incident and Isaac’s affidavit contradict Boling’s assertion that Holland was armed and posed a danger when he was shot. In addition, the HPD Offense Report reveals that the Latent Fingerprint Laboratory did not find Holland’s fingerprints on the Mossberg shotgun he allegedly pointed at Boling. The report states, “Examination of [the shotgun] revealed no suitable latent print(s) containing sufficient characteristics to effect an identification.” Therefore, it cannot be determined from the record before the court whether the force applied by Boling was clearly excessive and objectively unreasonable. Given these questions of fact, in the absence of a viable affirmative defense, the plaintiffs’ claims that Boling used excessive force are unsuitable for summary judgment and must be presented to the jury. b. Qualified Immunity Boling asserts that he has qualified immunity from the plaintiffs’ § 1983 claims. Under the doctrine of qualified immunity, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see Tamez v. City of San Marcos, 118 F.3d 1085, 1091 (5th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1073, 140 L.Ed.2d 132 (1998); Hart, 127 F.3d at 441. “An official acts within his discretionary authority when he performs nonministerial acts within the boundaries of his official capacity.” Tamez, 118 F.3d at 1091-92; Cronen v. Texas Dept. of Human Servs., 977 F.2d 934, 939 (5th Cir.1992). In this situation, Bol-ing did not act pursuant to specific orders spelled out in minute detail beforehand. See Tamez, 118 F.3d at 1092. Instead, “[h]is response required quick, but careful deliberation and the exercise of his judgment.” Id. Thus, his actions fell “within the realm of discretionary decisions police officers commonly make.” Id. The qualified or ‘good faith’ immunity doctrine was established to reconcile two competing interests. One interest is the compensation of persons whose federally protected rights have been violated. Opposing this is the fear that personal liability will inhibit public officials in the discharge of their duties. Qualified immunity has therefore been recognized to protect ‘all but the plainly incompetent or those who knowingly violate the law.’ Johnston v. City of Houston, 14 F.3d 1056, 1059 (5th Cir.1994) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). Qualified immunity is available to defendant officials in suits arising under § 1983 and, because it is “an affirmative defense, the defendant must both plead and establish his entitlement to immunity.” Tamez, 118 F.3d at 1091; see Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Harlow, 457 U.S. at 815, 102 S.Ct. 2727; Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Cronen, 977 F.2d at 939. It is an immunity from suit, extending beyond a defense to liability to include all aspects of civil litigation, including discovery. See Heitschmidt, 161 F.3d 834, 840; Jacquez, 801 F.2d at 791; see also Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). “Whether a government official is entitled to qualified immunity ‘generally turns on the “objective reasonableness of the action” assessed in light of the legal rules that were “clearly established” at the time it was taken.’ ” Johnston, 14 F.3d at 1059 (quoting Texas Faculty Ass’n v. University of Tex. at Dallas, 946 F.2d 379, 389 (5th Cir.1991) (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987))). In considering a claim of qualified immunity, the court must make a two-step inquiry: First, the court must determine whether the plaintiff has alleged a violation of a clearly established constitutional right. If the plaintiff fails this step, the defendant is entitled to qualified immunity. If she is successful, the issue becomes the objective legal reasonableness of the defendant’s conduct under the circumstances. Baker, 75 F.3d at 198 (citations and internal quotations omitted); see Nerren v. Livingston Police Dep’t, 86 F.3d 469, 473 (5th Cir.1996); Harper, 21 F.3d at 600; Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir.1993). A defendant “is entitled to qualified immunity unless he violated a constitutional right that was clearly established at the time of his conduct.” Black well v. Barton, 34 F.3d 298, 302-03 (5th Cir.1994); see Harper, 21 F.3d at 600. When determining whether qualified immunity is available, the actions of a reasonably competent official are assessed in light of the legal rules that were clearly establishéd at the time the action was taken. See Siegert, 500 U.S. at 231, 111 S.Ct. 1789; Anderson, 483 U.S. at 638, 483 U.S. 635; Mitchell, 472 U.S. at 530, 105 S.Ct. 2806; Harlow, 457 U.S. at 818, 102 S.Ct. 2727; Petta v. Rivera, 143 F.3d 895, 899-900 (5th Cir.1998); Gutierrez, 139 F.3d at 445; Tamez, 118 F.3d at 1095 n. 5; Dunn v. Denk, 79 F.3d 401, 403 (5th Cir.1996); Bennett v. City of Grand Prairie, 883 F.2d 400, 408 (5th Cir.1989). A legal right is clearly established if the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right. See Anderson, 483 U.S. at 640, 107 S.Ct. 3034; Johnston, 14 F.3d at 1059; Bennett, 883 F.2d at 408. In 1994, Holland had a clearly established constitutional right to be free from the use of excessive force by a police officer in the course of an arrest, investigatory stop, or other seizure. See, e.g., Graham, 490 U.S. at 394-95, 109 S.Ct. 1865; Harper, 21 F.3d at 600. “ ‘If reasonable public officials could differ on the lawfulness of the defendant’s actions, the defendant is entitled to qualified immunity.’” Blackwell, 34 F.3d at 303 (quoting Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir.1990)); accord Johnston, 14 F.3d at 1059; see Malley, 475 U.S. at 341, 106 S.Ct. 1092; Cantu v. Rocha, 77 F.3d 795, 806 (5th Cir.1996). The Fifth Circuit has observed, for example, in the context of a Fourth Amendment claim alleging wrongful arrest: In suits alleging illegal arrest, the qualified immunity determination turns on whether “ ‘a reasonable officer could have believed [the arrest] to be lawful, in light of clearly established law and the information the ... officer [ ] possessed.’ Even law enforcement officials who ‘reasonably but mistakenly believe that probable cause is present’ are entitled to immunity.” Babb v. Dorman, 33 F.3d 472, 477 (5th Cir.1994) (quoting Hunter v. Bryant, 502 U.S. 224, 226, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)); see Baker, 75 F.3d at 198. Similarly, if a suspect’s movements give an officer reasonable cause to believe that there is a threat of serious physical harm, the use of deadly force is not a constitutional violation. See Young, 775 F.2d at 1353. “[N]o right is guaranteed by federal law that one will be free from circumstances where he will be endangered by the misinterpretation of his acts.” Id.; Kellough v. Bertrand, 22 F.Supp.2d 602, 610-11 (S.D.Tex.1998). Thus, an “officer could make a constitutionally reasonable judgment based on a factual misperception.” Snyder v. Trepagnier, 142 F.3d 791, 800 (5th Cir.1998), petition for cert. filed, — U.S. -, 119 S.Ct. 863, 142 L.Ed.2d 716 (1999). In other words, if Boling’s conduct was objectively reasonable, he may invoke qualified immunity, even if the conduct infringed upon Holland’s constitutional rights. See Gutierrez, 139 F.3d at 445; Fraire, 957 F.2d at 1273; Pfannstiel, 918 F.2d at 1183. Once an official asserts his entitlement to qualified immunity in a properly supported motion for summary judgment, the plaintiff bears the burden of coming forward with sufficient summary judgment evidence to sustain a determination that the official’s actions violated clearly established federal law. See Blackwell, 34 F.3d at 301; Salas v. Carpenter, 980 F.2d 299, 304, 306 (5th Cir.), cert. denied, 506 U.S. 973 (1992); Bennett, 883 F.2d at 408; United States v. Burzynski Cancer Research Inst., 819 F.2d 1301, 1310 (5th Cir.1987), cert. denied, 484 U.S. 1065, 108 S.Ct. 1026, 98 L.Ed.2d 990 (1988); Saldana v. Garza, 684 F.2d 1159, 1163 (5th Cir.1982), cert. denied, 460 U.S. 1012, 103 S.Ct. 1253, 75 L.Ed.2d 481 (1983). Hence, the plaintiffs must show that Boling knew or reasonably should have known that the actions he was taking within his sphere of official responsibility would violate Holland’s constitutional rights. See Harlow, 457 U.S. at 818, 102 S.Ct. 2727; Schultea, 47 F.3d at 1431-32. In this instance, there is conflicting evidence as to whether Holland was armed and posed a danger when he was shot or whether Boling could have reasonably believed him to have been armed and dangerous. There are also conflicting accounts about the commands Boling gave Holland and whether he complied with the commands. As a consequence, it cannot be determined on the present state of the record whether Boling’s actions were objectively reasonable under the circumstances. Thus, due to the underlying factual dispute, it cannot be ascertained at this juncture whether Boling is entitled to qualified immunity. See Baker, 75 F.3d at 198. Therefore, the plaintiffs’ claim of excessive force as well as Boling’s assertion of qualified immunity may proceed to trial. 2. Claim Against the City When the claim is one of excessive force, the key to recovering against a municipality under § 1983 is demonstrating that a deprivation of a constitutional right was inflicted pursuant to an official policy or custom. See Flores v. Cameron County, 92 F.3d 258, 263 (5th Cir.1996); Campbell, 43 F.3d at 977. The United States Supreme Court has expressly held that municipalities may be sued directly under § 1983 where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Monell v. Department of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see Languirand v. Hayden, 717 F.2d 220, 223 (5th Cir.1983), cert. denied, 467 U.S. 1215, 104 S.Ct. 2656, 81 L.Ed.2d 363 (1984). A municipality may also be sued “for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Monell, 436 U.S. at 690-91, 98 S.Ct. 2018; see also Languirand, 717 F.2d at 223. The Fifth Circuit has defined official policy or custom as: 1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality’s lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or 2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. Johnson v. Moore, 958 F.2d 92, 94 (5th Cir.1992) (quoting Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.1984), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985)); accord Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304 (5th Cir.1995), cert. denied, 517 U.S. 1191, 116 S.Ct. 1680, 134 L.Ed.2d 782 (1996). The Supreme Court has identified two types of “policies” under which a municipality may be held liable. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). One type of “policy” is characterized by formal rules and understandings which constitute fixed plans of action to be followed under similar circumstances consistently and over time. See id. Another type of “policy” exists when a municipality takes a course of action tailored to a specific situation and not intended to control decisions in later situations. See id. at 481, 106 S.Ct. 1292. Under this second type of “policy,” a municipality can be liable only if the decision to adopt that particular course of action is properly made by that government’s authorized de-cisionmakers. See id. Such “authorized decisionmakers” are defined to be officials “ ‘whose acts or edicts may fairly be said to represent official policy’ ” and whose decisions may therefore give rise to municipal liability under § 1983. Id. at 480, 106 S.Ct. 1292 (quoting Monell, 436 U.S. at 694, 98 S.Ct. 2018). State law determines whether a particular individual is a final decisionmaker of a governmental entity with respect to a certain sphere of activity. See Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir.), cert. denied, 519 U.S. 817, 117 S.Ct. 68, 136 L.Ed.2d 29 (1996) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 124, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988); Doe v. Rains County Indep. Sch. Dist., 66 F.3d 1402, 1407 (5th Cir.1995)). The Fifth Circuit has held that, under Monell, when a final policymaker makes a decision, and that decision is within the sphere of the policymaker’s final authority, “‘the existence of a well-established, officially-adopted policy will not insulate the municipality from liability.’ ” Bennett, 74 F.3d at 586 (quoting Gonzalez v. Ysleta Indep. Sch. Dist, 996 F.2d 745, 754 (5th Cir.1993)). “If actions of city employees are to be used to prove a custom for which the municipality is liable, those actions must have occurred for so long or so frequently that the course of conduct warrants the attribution to the governing body of knowledge that the objectionable conduct is the expected, accepted practice of city employees.” Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir.1984). Consistent with the commonly understood meaning of custom, proof of random acts or isolated incidents is not sufficient to show the existence of a custom or policy. See Fraire, 957 F.2d at 1278 (citing Rodriguez v. Avita, 871 F.2d 552, 554 (5th Cir.), cert. denied, 493 U.S. 854, 110 S.Ct. 156, 107 L.Ed.2d 114 (1989); Palmer v. City of San Antonio, 810 F.2d 514, 516 (5th Cir.1987)); Thompson v. City of Los Angeles, 885 F.2d 1439, 1443-44 (9th Cir.1989). “ ‘Isolated violations are not the persistent, often repeated constant violations that constitute custom and policy1 as required for municipal section 1983 liability.” Campbell, 43 F.3d at 977 (quoting Bennett, 728 F.2d at 768 n. 3). To demonstrate a municipal policy or custom under § 1983, a plaintiff must at least show: a pattern of similar incidents in which citizens were injured or endangered by intentional or negligent police misconduct and/or that serious incompetence or misbehavior was general or widespread throughout the police force. Fraire, 957 F.2d at 1278 (citing Languirand, 717 F.2d at 227-228). Only if the plaintiff shows that his injury resulted from a “ ‘permanent and well settled’ ” practice may liability attach for injury resulting from a local government custom. See Praprotnik, 485 U.S. at 127, 108 S.Ct. 915 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 168, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). Moreover, a city does not incur liability under § 1983 unless there exists “a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); see Piotrowski v. City of Houston, 51 F.3d 512, 517 (5th Cir.1995); Burns v. City of Galveston, 905 F.2d 100, 102 (5th Cir.1990). Specifically, “the plaintiff must initially allege that an official policy or custom ‘was a cause in fact of the deprivation of rights inflicted.’ ” Spiller v. City of Texas City, 130 F.3d 162, 167 (5th Cir.1997) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir.1994)). Nevertheless, “[t]his connection must be more than a mere ‘but for’ coupling between cause and effect.” Fraire, 957 F.2d at 1281 (citing City of Canton, 489 U.S. at 386, 109 S.Ct. 1197; Tuttle, 471 U.S. at 823, 105 S.Ct. 2427). The plaintiff must also establish that a government policy or custom was the proximate cause of the injuries sustained. See Huffman v. County of Los Angeles, 147 F.3d 1054, 1059 (9th Cir.1998); Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.1996), cert. denied, 520 U.S. 1117, 117 S.Ct. 1249, 137 L.Ed.2d 330 (1997); Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir.1996); Horn by Parks v. Madison County Fiscal Ct., 22 F.3d 653, 659 (6th Cir.), cert. denied, 513 U.S. 873, 115 S.Ct. 199, 130 L.Ed.2d 130 (1994); Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.1990); Doe v. District of Columbia, 701 F.2d 948, 953 (D.C.Cir.1983); Rheuark v. Shaw, 628 F.2d 297, 305 (5th Cir.1980), cert. denied, 450 U.S. 931, 101 S.Ct. 1392, 67 L.Ed.2d 365 (1981); Daniels v. Gilbreath, 668 F.2d 477, 480 (10th Cir.1982). “Pointing to a municipal policy action or inaction as a ‘but for’ cause is not enough to prove a causal connection under Monell. Rather, the policy must be the proximate cause of the section 1983 injury.” Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir.1996), cert. denied, 519 U.S. 1111, 117 S.Ct. 950, 136 L.Ed.2d 837 (1997) (citing Mann v. City of Tucson, 782 F.2d 790, 793 (9th Cir.1986)). In addition, the “plaintiff must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision.” Board of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 1392, 137 L.Ed.2d 626 (1997). As the Supreme Court explained: [I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights. Brown, 117 S.Ct. at 1388; see also Spiller, 130 F.3d at 167 (quoting Meadowbriar Home For Children, Inc. v. Gunn, 81 F.3d 521, 533 (5th Cir.1996)). “Congress did not intend municipalities to be held liable unless deliberate action attributable to the municipality directly caused a deprivation of federal rights.” Brown, 117 S.Ct. at 1394. Thus, plaintiffs seeking to recover against a municipality under § 1983 “must first prove a direct causal link between the municipal policy and the constitutional deprivation; they then must establish that the city consciously enacted a policy reflecting ‘deliberate indifference’ to the constitutional rights of its citizens.” Snyder, 142 F.3d at 795-96 (citing City of Canton, 489 U.S. at 389, 109 S.Ct. 1197). “[D]elib-erate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Brown, 117 S.Ct. at 1391. Furthermore, a municipality may not be held liable for the acts of its employees under a theory of respondeat superior. See Monell, 436 U.S. at 694, 98 S.Ct. 2018; Flores, 92 F.3d at 263; Piotrowski, 51 F.3d at 517; Colle v. Brazos County, 981 F.2d 237, 244 (5th Cir.1993); Williams v. Luna, 909 F.2d 121, 123 (5th Cir.1990); Rodriguez, 871 F.2d at 554; Hickman v. Lively, 897 F.Supp. 955, 958 (S.D.Tex.1995). “Municipalities are not vicariously hable for the actions of their employees under § 1983. Municipal liability inures only when the execution of a local government’s policy or custom causes the injury.” Baker, 75 F.3d at 200. In order to hold a municipality liable for the acts of a nonpolicymaking employee, the plaintiff must allege and prove that: “(1) a policy or custom existed; (2) the governmental policy makers actually or constructively knew of its existence; (3) a constitutional violation occurred; and (4) the custom or policy served as the moving force behind the violation.” Meadowbriar Home for Children, Inc., 81 F.3d at 532-33 (citing Palmer, 810 F.2d at 516). “Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.” Brown, 117 S.Ct. at 1389 (citing City of Canton, 489 U.S. at 391-92, 109 S.Ct.1197). “These requirements must not be diluted for ‘[wjhere a court fails to adhere to rigorous requirements of culpability and causation, municipal liability collapses into respondeat superior liability.’ ” Snyder, 142 F.3d at 796 (quoting Brown, 117 S.Ct. at 1394). a. Excessive Force In the case at bar, the plaintiffs contend that Boling used excessive force while working as a security guard at the Cue Club. Once the fight began; however, Boling ceased being an employee or independent contractor of the Cue Club and instantly became an on-duty HPD officer. The HPD Rules Manual provides: 2.7 Officers Always Subject to Duty Officers shall at all times respond to the lawful orders of supervisors and to the call of citizens in need of assistance. The fact that they may be technically off-duty shall not relieve them from the responsibility of taking prompt and proper police action. An off-duty peace officer who observes a crime in progress immediately becomes an on-duty officer. See Laughlin v. Olszewski, 102 F.3d 190, 192 n. 1 (5th Cir.1996); Villegas v. Griffin Indus., 975 S.W.2d 745, 754 (Tex.App.—Corpus Christi 1998, writ denied); Wallace v. Moberly, 947 S.W.2d 273, 277 (Tex.App.—Fort Worth 1997, no writ); City of Dallas v. Half Price Books, Records, Magazines, Inc., 883 S.W.2d 374, 377 (Tex.App. — Dallas 1994, no writ). A peace officer is not relieved of his duty to prevent crime when he witnesses an illegal act simply because he is off-duty. See Blackwell v. Harris County, 909 S.W.2d 135, 139 (Tex.App. — Houston [14th Dist.] 1995, writ denied) (citing Moore v. State, 562 S.W.2d 484, 486 (Tex.Crim.App.1978)). Hence, because the plaintiffs’ claims stem from the “actions of [its] employees,” liability can attach to the City only if those actions involved “the execution of a local government’s policy or custom .... ” Baker, 75 F.3d at 200 (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018); see Flores, 92 F.3d at 263. In this situation, the plaintiffs have failed to adduce sufficient evidence demonstrating a policy or custom of the City authorizing or condoning the use of excessive force. First, it is undisputed that the official policy of the City, as set forth in the Rules Manual of the HPD, dated January 1988, expressly prohibits the use of excessive force: 4.22 Use of Force Officers shall use only that amount of force necessary to accomplish their police mission. The use of excessive force is strictly forbidden. In addition, under the HPD Rules Manual, officers are required to obey all laws, conduct themselves properly whether on-duty or off-duty, follow established procedures in carrying out their duties, at all times use sound judgment, and respect the rights of individuals. See HPD Rules Manual ¶¶ 1.2, 2.3, 2.5. Moreover, the HPD has a comprehensive policy concerning the use of deadly force as well as extensive rules regarding the use of firearms. HPD General Order No. 600-17, issued February 15,1987, mandates: POLICY The Houston Police Department places its highest value on the life and safety of its officers and the public. The department’s policies, rules and procedures are designed to ensure that this value guides police officers’ use of firearms. The citizens of Houston have vested in their police officers the power to carry and use firearms in the exercise of their service to society. This power is based on trust and, therefore, must be balanced by a system of accountability. The serious consequences of the use of firearms by police officers necessitate the specification of limits for officers’ discretion; there is often no appeal from an officer’s decision to use a firearm. Therefore it is imperative that every effort be made to ensure that such use is not only legally warranted but also rational and humane. The basic responsibility of police officers to protect life also requires that they exhaust all other reasonable means for apprehension and control before resorting to the use of firearms. Police officers are equipped with firearms as a means of last resort to protect themselves and others from the immediate threat of death or serious bodily injury. Even though all officers must be prepared to use their firearms when necessary, the utmost restraint must be exercised in their use. Consequently, no officer will be disciplined for discharging a firearm in self-defense or in defense of another when faced with a situation that immediately threatens life or serious bodily injury. Just as important, no officer will be disciplined for not discharging a firearm if that discharge might threaten the life or safety of an innocent person, or if the discharge is not clearly warranted by the policy and rules of the department. Above all, this department values the safety of its employees and the public. Likewise it believes that police officers should use firearms with a high degree of restraint. Officers’ use of firearms, therefore, shall never be considered routine and is permissible only in defense of life and then only after all alternative means have been exhausted. RULES The policy stated above is the basis of the following set of rules that have been designed to guide officers in all cases involving the use of firearms: Rule 1: Police officers shall not discharge their firearms except to protect themselves or another person from imminent death or serious bodily injury. Rule 2: Police officers shall discharge their firearms only when doing so will not endanger innocent persons. Rule 3: Police officers shall not discharge their firearms to threaten or subdue persons whose actions are destructive to property or injurious to themselves but which do not represent an imminent threat of death or serious bodily injury to the officer or others. Rule 4: Police officers shall not discharge them firearms to subdue an escaping suspect who presents no imminent threat of death or serious bodily injury. Rule 5: Police officers shall not discharge their weapons at a moving vehicle unless it is absolutely necessary to do so to protect against an imminent threat to the life of the officer or others. Rule 6: Police officers when confronting an oncoming vehicle shall attempt to move out of the path, if possible, rather than discharge their firearms at the oncoming vehicle. Rule 7: Police officers shall not intentionally place themselves in the path of an oncoming vehicle and attempt to disable the vehicle by discharging them firearms. Rule 8: Police officers shall not discharge their firearms at a fleeing vehicle or its driver. Rule 9: Police officers shall not fire warning shots. Rule 10: Police officers shall not draw or displ