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Orr v. Copeland

United States Court of Appeals, Fifth Circuit

December 22, 2016

ANGELA ORR, heir to Ahmede Jabbar Bradley; MONTERIA BROWN, heir to Ahmede Jabbar Bradley; TASHIKA WRIGHT, as next friend of minor Z.B.; NEACHOLE VEAL, as next friend of minor Z.B., Plaintiffs-Appellees
OFFICER ERIC COPELAND, Defendant-Appellant

         Appeal from the United States District Court for the Western District of Texas

          Before CLEMENT, PRADO, and OWEN, Circuit Judges.

          EDITH BROWN CLEMENT, Circuit Judge:

         In this qualified immunity case, the question on appeal is whether the district court erred in holding that-in the absence of video evidence- eyewitness testimony should not be considered for summary judgment purposes until subject to cross examination. Because we conclude that it did, we REVERSE.


         On April 5, 2012, at approximately 6:30 p.m., police officer Eric Copeland of the Austin Police Department stationed his patrol car near an intersection in a high crime neighborhood. He parked his car in a way that blocked his view of the street, so he could hear but not see oncoming traffic. He was listening for violations of the city's amplified noise ordinance. He admits that he had a secondary motivation for this: in Copeland's experience, individuals who blared loud music while driving often had illegal drugs concealed in their vehicles.

         After about ten minutes, Copeland heard a car blasting loud music approaching and decided to pull it over. He pulled out behind the vehicle-a black Toyota Camry with tinted windows-when it passed and turned on his flashing lights and sirens. By doing so, he also automatically activated the video and audio recording devices on his dashboard and the audio recording device on his person. The vehicle he was following did not pull over for a couple of blocks but ultimately came to a stop in a gas station parking lot.

         Copeland exited his vehicle and approached the Camry on foot. The driver of the car, Ahmede Bradley, was a black male in his mid-thirties. Bradley rolled down the window when Copeland approached but did not speak or look at the officer directly. Instead, he looked straight-ahead and nervously shuffled some papers in his hands as he continued to smoke.

         Copeland noticed several things that suggested to him that Bradley might be a narcotics trafficker. First, Bradley had some white residue smeared on the left side of his mouth that Copeland thought looked like crack/cocaine powder. Second, there was a messenger bag sitting in the back seat with plastic baggies sticking out of one of the pockets. Copeland had frequently seen similar baggies used to package and distribute drugs. Third, despite the presence of an unusual number of air fresheners and the smoke from the cigar Bradley was smoking, Copeland could still "smell[] the distinct odor of marijuana."

         After a brief conversation about the odor and his criminal history, Copeland asked Bradley to step out of the vehicle. Bradley refused, keeping his door locked and rolling up his window. Although Copeland ordered Bradley to stop, Bradley drove off at high speed. Believing that Bradley was involved in serious drug crimes, Copeland reentered his vehicle, notified dispatch that the suspect was fleeing, and gave chase.

         The subsequent pursuit lasted less than a minute. Bradley drove erratically, crossing a double yellow line at one point and twice turning left in front of oncoming traffic. He stopped in front of a residence, and as Copeland pulled up behind him, Bradley exited the vehicle and fled on foot. Copeland followed, ordering Bradley to "get down."

         The foot chase and physical altercation that followed lasted two minutes and thirty-three seconds, ending when Copeland fired three shots into Bradley's chest, killing him. The parties' accounts of what transpired diverge considerably. Although Copeland's dashcam and microphone continued to record as the events unfolded, the majority of the fight took place off-camera. A. Copeland's Version of the Altercation

         According to Copeland, Bradley darted for and attempted to scale a "short 3 or 4 foot chain link fence, with chicken-wire fencing strung along the top, " but was unable to clear it. Copeland was able to grab Bradley and ordered him to "[g]et down on the fucking ground." Bradley said he would comply, but instead grabbed Copeland by the bicep and attempted to shove him to the ground. As they grappled with each other, Copeland told Bradley to "get back, " warning "I'm going to kill you."

         As the pair raced across the street (and in front of the camera), Copeland attempted to taser Bradley. Bradley tripped as a result, but did not convulse, leading the officer to conclude that the taser prongs had gotten stuck in the suspect's shirt. Copeland kicked Bradley, but was unable to stop him from getting to his feet and continuing to flee. Thinking "it was best to take the Taser out of the equation so that [Bradley] could not use it on [him], " Copeland discarded the weapon as he pursued the suspect.

         As Bradley attempted to climb another fence, Copeland caught up, grabbed him from behind, and forced Bradley to the ground on all-fours using a leg-sweep maneuver. Copeland repeatedly ordered Bradley to put his arms behind his back, but the suspect ignored him. Copeland tried to force Bradley's arms out from under him and "delivered several (3-5) hammer strikes to the side of Bradley's head and to his torso" in hopes that "he would reach up to block the strikes, " enabling Copeland to force Bradley to the ground and hold him there until backup arrived. Instead, Bradley fought back, and being much larger than Copeland, quickly overcame his opponent. Feeling exhausted and concerned for his life, Copeland took one hand off of Bradley to radio for backup to "step it up." As he did this, Bradley was able to stand up and get the officer into a headlock, forcing him onto the ground on his hands and knees. As they wrestled, Copeland shouted "I'm going to fucking kill you" as a way of warning Bradley that "if he did not stop assaulting [him], [Copeland] would eventually resort to deadly force to end the threat to [his] life."

         In response, Bradley grabbed the cord that connected the radio on Copeland's belt to the microphone on his shoulder and pulled it across Copeland's neck, choking him. Copeland "grabbed with one hand underneath the cord and tried to pull it off of [his] neck, " causing the microphone to detach from the radio cord and preventing Bradley from cutting off his airway. Bradley then shifted tactics and attempted to grab Copeland's firearm, successfully "defeat[ing] one or two of the safety mechanisms on the holster designed to stop someone from simply snatching the weapon out of the holster." Copeland placed ...

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