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
from the United States District Court for the Western
District of Texas
CLEMENT, PRADO, and OWEN, Circuit Judges.
BROWN CLEMENT, Circuit Judge:
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.
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
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.
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.
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."
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.
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."
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
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."
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.
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]
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 ...