Appeals from the United States District Court for the
Northern District of Texas
Before
STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH, DENNIS,
CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON,
COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E.
STEWART, Chief Judge, and JAMES L. DENNIS, EDITH BROWN
CLEMENT, PRISCILLA R. OWEN, JENNIFER WALKER ELROD, LESLIE H.
SOUTHWICK, CATHARINA HAYNES, JAMES E. GRAVES, STEPHEN A.
HIGGINSON, GREGG COSTA, and KURT D. ENGELHARDT, Circuit
Judges: [1]
ON
PETITION FOR REHEARING EN BANC FOLLOWING REMAND FROM THE
UNITED STATES SUPREME COURT
The
Supreme Court over several years has developed protection
from civil liability for persons going about their tasks as
government workers in the form of immunity; not the absolute
immunity enjoyed by prosecutors and judges, but a qualified
immunity. Today we again repair to issues inherent in the
qualification. The doctrine protects at the earliest stage of
litigation at which the defense's application is
determinable. To that end, courts have developed procedures
and pretrial practices, including appellate review of
pretrial denials, otherwise interlocutory and unappealable,
and a reply to an answer under Rule 7(a) on order of the
district court, particularized to address the defense of
immunity in a motion to dismiss or for summary judgment. When
those processes do not yield pretrial resolution, as with
competing factual narratives, the full reach of qualified
immunity gives way to a trial, the first point at which its
application is determinable. And in obeisance to
constitutional mandate, the worker's defense enjoys a
right to the protection of a jury-long a bastion interposed
between the state and person, and assured by the Founders.
And it signifies that today the district judge has multiple
ways to present fully the claims and defenses to a jury to
ensure the government worker a full draw upon his immunity
defense, [2] including resolution of the competing
factual narratives, one of which-or a meld of both-may
foreclose liability.[3]
In this
case, police officers from Sachse, Texas argue that the
district court should have sustained their defense of
qualified immunity on their pretrial motions to dismiss and
for summary judgment. Ryan Cole and his parents Karen and
Randy (collectively "the Coles") sue Officer Carl
Carson, Lieutenant Martin Cassidy, and Officer Michael Hunter
of the Sachse Police Department under 42 U.S.C. § 1983.
The Coles allege that the officers violated Ryan Cole's
Fourth and Fourteenth Amendment rights during an incident in
which Cassidy and Hunter shot Ryan without warning, and then
lied about what happened. The officers filed dispositive
pretrial motions in the district court, asserting the defense
of qualified immunity. The district court denied these
motions, concluding that immunity could not be determined at
this stage of the proceeding. In Cole I, a panel of
our court affirmed the denial of summary judgment as to the
Coles' Fourth Amendment excessive-force claim and the
denial of the motion to dismiss the Coles' Fourteenth
Amendment false-charge claim, but reversed denials of the
motion to dismiss the Coles' Fourth Amendment and
Brady claims attacking the alleged fabrication of
evidence.[4] The Supreme Court vacated Cole
I, and remanded for consideration in light of its
intervening decision in Mullenix v.
Luna.[5] On remand, the panel affirmed the
denial of summary judgment as to the excessive-force claim.
Because the Coles' other claims were unaffected by the
reasoning of Mullenix, the panel reinstated Cole
I's holdings on the fabrication-of-evidence claims.
We reheard this case en banc to reconsider disposition of the
Coles' excessive-force claim in light of
Mullenix.
We
conclude that it will be for a jury, and not judges, to
resolve the competing factual narratives as detailed in the
district court opinion and the record as to the Coles'
excessive-force claim. Limited by our jurisdiction to the
materiality of factual disputes, we AFFIRM the denial of
summary judgment on this claim and DISMISS Cassidy and
Hunter's appeal. The Coles' remaining claims are
unaffected by the reasoning of Mullenix, and so, as
in Cole I, we AFFIRM denial of the motion to dismiss
the Coles' Fourteenth Amendment false-charge claim;
REVERSE denial of the motion to dismiss the Coles' Fourth
Amendment and Brady fabrication-of-evidence claims
based on qualified immunity; and return the case to the
district court for trial and resolution of issues consistent
with this opinion.
I
A.
On
October 25, 2010, at around 10:30 a.m., the Sachse Police
Department called available units to the neighboring town of
Garland, Texas. There police were searching for Ryan Cole, a
seventeen-year-old white male, reported to be walking in the
neighborhood with a handgun. Officer Michael Hunter responded
by proceeding immediately to the Garland neighborhood. In a
statement given on the day of the incident, Hunter related
that on arriving in the neighborhood, he overheard a civilian
stating that Ryan had given up one of his guns, and that he
had unsuccessfully tried to persuade Ryan to not keep his
handgun. Hunter searched the area, and saw two officers
following Ryan, who was walking away from them holding his
gun to his head, approaching a wooded area along Highway 78.
Although told by officers that things were under control,
Hunter volunteered to go behind the wooded area and possibly
intercept Ryan, and suggested that Officer Carl Carson, who
was also present, join him.
Four
years later, after this litigation had commenced, Hunter for
the first time recalled that the civilian he had overheard
had described an altercation with Ryan in which Ryan had
threatened him. He also then for the first time recalled
hearing police-radio transmissions indicating that officers
were protecting nearby schools because of "[Ryan]'s
dangerous conduct which posed a risk of serious harm to a
great many innocent in the vicinity." Hunter otherwise
learned nothing "that would cause [him] to believe
[Ryan] was violent or wanted to hurt
anyone."[6] Hunter understood that Ryan was
suicidal, and, four years after the incident, he also raised
the possibility that Ryan was using suicide as a pretext to
evade the police.
Meanwhile,
Lieutenant Martin Cassidy had also heard the original
dispatcher's summons. Cassidy called the Sachse Police
Department for more information. On the day of the incident,
Cassidy swore that he learned "this subject had shown up
at [a] residence with a handgun and had just recently been
seen walking away." But, four years later, after this
litigation had commenced, like Hunter, Cassidy remembered
learning more, including that Ryan "had threatened to
shoot anyone who tried to take his gun"; had refused an
order to drop his weapon; and might be headed for Sachse High
School "to possibly engage in violence." Cassidy
also decided to intercept Ryan on Highway 78.
The
three officers separately arrived at the side of Highway 78
at around the same time. Hunter parked his motorbike and drew
his duty weapon; Cassidy also drew his firearm and advised
Carson to be ready to use his taser. The officers started
walking along the tree line. A steep embankment rose from
railroad tracks to the area along Highway 78. Ryan would have
to climb this embankment to approach the tree line. Cassidy
and Hunter used both the edge of the embankment and the
vegetation to conceal themselves as they walked. Hunter also
removed his white motorcycle helmet in order to be less
conspicuous. Cassidy soon heard a message over the police
radio: Ryan was ascending to the tree line. Hunter heard
movement in the brush, and signaled to his colleagues.
What
occurred next is disputed. Viewing the summary judgment
evidence and drawing reasonable inferences in the light most
favorable to the non-movant Coles, the district court
determined that a reasonable jury could find the following:
Ryan backed out from the tree line in front of Hunter and
Cassidy, "unaware of the Officers'
presence."[7] Ryan was holding his handgun pointed
to his own head, where it remained.[8] "[Ryan] never
pointed a weapon at the Officers, "[9] and "never made
a threatening or provocative gesture towards [the]
Officers."[10] "Officers [Cassidy and Hunter]
had the time and opportunity to give a warning" for Ryan
to disarm himself.[11] However, the officers provided
"no warning . . . that granted [Ryan] a sufficient time
to respond, "[12] such that Ryan "was not given
an opportunity to disarm himself before he was
shot."[13] Hunter and Cassidy then shot Ryan
multiple times. Officer Hunter's first shot struck Ryan
as he was oriented away from the officers at a 90-degree
angle-that is, he was not facing Officer
Hunter.[14]Following impact of the first shot,
as Ryan's body turned or fell towards Hunter, he shot him
a second time.[15] As an involuntary reflex to being
shot, Ryan pulled the trigger, shooting himself in his
temple.[16] But the officers did not know that.
Following
the shooting, the three officers remained together at the
scene. The Coles allege that during this time the officers
conspired to insulate Cassidy and Hunter from liability with
a fabricated narrative in which Ryan was facing Hunter and
pointed his weapon at the officer, at which point Cassidy and
Hunter fired on Ryan in defense. Eventually, members of the
Garland Police Department arrived and took control of the
scene, but did not follow the standard procedure of
separating witnesses to ensure independent recollections.
Instead, Cassidy and Hunter were allowed to return to their
police station together. Later that day, the officers
provided statements to investigators. Hunter stated that he
had no chance to issue a command to Ryan. Cassidy and Carson,
however, swore that, when Ryan backed out from the brush,
they heard Hunter shout a warning to him. Hunter and Cassidy
stated that Ryan then turned towards Hunter and pointed his
handgun at Hunter, at which point both officers-fearing for
Hunter's life-opened fire defensively.[17]
The
Dallas County District Attorney presented the officers'
narrative to a grand jury, which no-billed the officers and
charged Ryan with felony aggravated assault of a public
servant. As a result of the charge, Ryan, incapacitated in
intensive care, was placed under house arrest. About a month
after the indictment, investigators received a ballistics
report from the crime lab. The ballistics analysis, taken
together with stippling observed around Ryan's head
wound, made clear that Ryan had shot himself in the temple,
confounding the officers' account.[18] Dallas County
prosecutors then dropped the aggravated assault charge,
accepting Ryan's plea to misdemeanor unlawful carry of a
weapon, a $500 fine, and forfeiture of his handgun.
Ryan
suffered permanent injuries, including cognitive impairment,
partial paralysis, and other serious mental and physical
disabilities.
B.
The
Coles brought, inter alia, four Section 1983 claims against
the officers. First, they allege a violation of Ryan's
Fourth Amendment right against the use of excessive force
arising from the shooting. Second, the Coles allege a
violation of Ryan's Fourteenth Amendment right against
the imposition of false charges arising from the fabrication
of evidence. Third, they allege a violation of Ryan's
Fourth Amendment right against unreasonable seizures arising
from the fabrication of evidence. Fourth, they allege a
Brady violation arising from the fabrication of
evidence. The officers filed a motion to dismiss these claims
under Rule 12(b)(6), asserting qualified immunity defenses.
The district court denied the motion in a January 2014
Memorandum Opinion and Order.[19] Carson alone appealed
the denial of the motion to dismiss the Coles' three
fabrication-of-evidence claims based on qualified immunity.
The district court stayed these fabrication-of-evidence
claims pending Carson's appeal, allowing the Coles
limited discovery against Cassidy and Hunter's qualified
immunity defenses to the excessive-force claim. With that
discovery complete, the two officers moved for summary
judgment, rearguing qualified immunity. The district court
denied their motion and Cassidy and Hunter appealed.
The
officers' appeals were consolidated. In 2015, in Cole
I, a panel of this court affirmed the district
court's denial of summary judgment on the Coles'
excessive-force claim, affirmed denial of the motion to
dismiss the Coles' Fourteenth Amendment false-charge
claim, and reversed the denial as to the Coles' Fourth
Amendment and Brady fabrication-of-evidence claims,
finding the qualified immunity defense applicable for these
claims. The officers petitioned the Supreme Court for a writ
of certiorari. In November 2016, the Supreme Court granted
certiorari, vacated the panel's judgment, and remanded
the case for further consideration in light of Mullenix
v. Luna, [20]decided in the intervening
time.[21]
On
remand from the Supreme Court, recognizing that its
jurisdiction was limited to determining the materiality of
factual disputes that the district court determined were
genuine, the panel once again held that the applicability of
qualified immunity for Cassidy and Hunter could not be
determined at the summary judgment stage.[22] Finding
the Supreme Court's remand order reached no further, the
panel reinstated the Cole I opinion on the
Coles' three fabrication-of-evidence
claims.[23] The officers moved for rehearing en
banc, which we granted.[24]
II
A.
We hear
this case on remand from the Court for further consideration
in light of Mullenix. We do not reach issues
unaddressed by the mandate on remand, [25] and so we hold as
in Cole I with respect to the Coles' three
fabrication-of-evidence claims. First, we affirm the district
court's denial of the motion to dismiss the Coles'
Fourteenth Amendment claim regarding the imposition of false
charges.[26] Second, finding qualified immunity
applicable, we reverse the denial of the motion to dismiss
the Coles' claim that the alleged fabrication of evidence
violated the Fourth Amendment.[27] Lastly, finding qualified immunity
applicable, we reverse the denial of the motion to dismiss
the Coles' claim that the alleged fabrication of evidence
entailed a Brady violation.[28]
B.
The
qualified immunity inquiry includes two parts. In the first
we ask whether the officer's alleged conduct has violated
a federal right; in the second we ask whether the right in
question was "clearly established" at the time of
the alleged violation, such that the officer was on notice of
the unlawfulness of his or her conduct.[29] The officer is entitled to qualified
immunity if there is no violation, or if the conduct did not
violate law clearly established at the time.[30]
On an
appeal of a denial of summary judgment on the basis of
qualified immunity, our jurisdiction is limited to examining
the materiality of factual disputes the district court
determined were genuine.[31] "[I]n an interlocutory appeal
we cannot challenge the district court's assessments
regarding the sufficiency of the evidence-that is, the
question whether there is enough evidence in the record for a
jury to conclude that certain facts are
true."[32] "[W]e lack
jurisdiction to resolve the genuineness of any factual
disputes" and "consider only whether the district
court erred in assessing the legal significance of the
conduct that the district court deemed sufficiently supported
for purposes of summary judgment."[33] Like the district court, we must
view the facts and draw reasonable inferences in the light
most favorable to the plaintiff and ask whether the defendant
would be entitled to qualified immunity on those
facts.[34] The Supreme Court has
summarily reversed this court for failing to take the
evidence and draw factual inferences in the non-movants'
favor at the summary judgment stage.[35] In doing so, the Court emphasized
that the requirement is no less binding "even when . . .
a court decides only the clearly-established prong of the
standard."[36] Within
the limited scope of our inquiry, review is de
novo.[37]
As
instructed, we turn to the guidance provided by the Supreme
Court in Mullenix. In that case, the Court reviewed
a denial of qualified immunity to an officer who had shot and
killed a fugitive in a car chase. This court had decided that
the officer violated the clearly established rule that deadly
force was prohibited "against a fleeing felon who does
not pose a sufficient threat of harm to the officer or
others."[38] The officer in
Mullenix reasonably perceived some threat of harm,
but we had held the threat was not "sufficient."
The Supreme Court reversed our decision. It found that the
rule we articulated lacked a referent to define the
"sufficiency" of threats.[39] Precedents provided a "hazy
legal backdrop," at best.[40] Given these deficient sources, an
officer could not reasonably derive an applicable rule to
govern his or her conduct in the situation.[41] Finding that we had defined the
applicable rule with too much "generality,
"[42] the Court reversed our
holding that the officer had violated clearly established
law.[43]
Under
Mullenix, application of clearly established law is
undertaken with close attention to the relevant legal rule
and the particular facts of the case. Here, based on the
facts taken in the light most favorable to the non-movant
Coles, and with reasonable inferences drawn in their favor,
the district court determined there were genuine factual
disputes as to Ryan's and the officers' conduct, upon
which a reasonable jury could find "[Ryan] . . . did not
pose an immediate threat to the officers" when they
opened fire.[44] It held that
"on October 25, 2010, the date of the shooting, the law
was clearly established" that "shooting a mentally
disturbed teenager, who was pointing a gun the entire time at
his own head and facing away from the officer, in an open
outdoor area, and who was unaware of the officer's
presence because no warning was given prior to the officer
opening fire, was unlawful."[45] As we will detail, the officers ask
us to consider a different set of facts, but we cannot do so.
We lack jurisdiction to reconsider the district court's
factual determinations on an appeal from denial of summary
judgment on qualified immunity.
Tennessee
v. Garner announced the principle that the use of deadly
force is permitted only to protect the life of the shooting
officer or others: "Where the suspect poses no immediate
threat to the officer and no threat to others, the harm
resulting from failing to apprehend him does not justify the
use of deadly force to do so."[46] Garner also requires a
warning before deadly force is used "where feasible,
"[47] a critical component
of risk assessment and de-escalation. The Supreme Court has
repeatedly stated that this rule can be sufficient in obvious
cases, and this court has applied it in such cases, without
dependence on the fact patterns of other cases.[48]
The
summary judgment facts, as determined by the district court,
are that Ryan posed no threat to the officers or others to
support firing without warning. The "Officers had the
time and opportunity to give a warning and yet chose to shoot
first instead."[49] This is
an obvious case. Indeed, Officer Hunter conceded that he
would have had no basis to fire upon Ryan unless Ryan had
been facing him and pointing a gun at him.
This
case is obvious when we accept the facts as we must. It is
also informed by our precedent. Before 2010, Baker v.
Putnal established clearly that Cassidy's and
Hunter's conduct-on the facts as we must take them at
this stage-was unlawful. For in Baker, members of
the public told Officer Michael Putnal, a police officer
patrolling a crowded Galveston beach area during spring
break, that "someone had entered the crowd with a
pistol-gripped shotgun."[50] Minutes later, Officer Putnal heard
gunfire and saw the crowd scurrying.[51] There was "a good deal of
confusion on the beach."[52] Two people directed the officer to a
car in which the gunman was supposedly sitting.[53] Putnal then saw Wendell Baker Jr.
and another man sitting in a truck parked on the
beach.[54] The parties disputed
what happened next. Putnal stated he saw Baker loading a
magazine into a handgun, that he warned Baker to freeze or
drop the gun, that Baker instead turned the gun upon Putnal,
at which point Putnal fired, killing Baker.[55] However, witnesses "state[d]
that [Baker] took no threatening action . . . as the officer
approached the truck," that Putnal issued no warning to
Baker, and that "Baker . . . may have barely had an
opportunity to see Putnal before [the officer] fired his
gun."[56] The parties did
not dispute that Putnal had been searching for a gunman, and
that a gun had been recovered from Baker's seat, although
they disputed whether and how Baker had been holding it, that
is, whether he pointed it at Putnal.[57]It was also undisputed that Baker was
turning to face Putnal from his seat, although medical
reports indicated from "the nature of the wounds . . .
that Baker . . . was not facing Putnal when he was
shot."[58] Baker's
survivors sued the officer, bringing, inter alia, a Fourth
Amendment excessive-force claim.[59]The district court granted Putnal
qualified immunity, crediting his account that he had fired
in response to Baker turning and aiming the gun at
him.[60]On appeal, we reversed
and remanded the excessive-force claim for
trial.[61]Recognizing the dispute
as to the officer's warning, Baker's turn, and the
position of Baker's gun, we found "simply too many
factual issues to permit the Bakers' § 1983 claims
to be disposed of on summary judgment."[62] "Chaos on the beach and
Baker['s] mere motion to turn and face Putnal are not
compelling reasons to find that [the officer's] use of
force was not excessive as a matter of
law."[63] Viewing the facts
and drawing inferences "in the light most favorable to
the nonmoving party," we held that "[t]he number of
shots and the nature of the wounds raise . . . more of a
question of fact than a court may dispose of on summary
judgment."[64]
The
Supreme Court's more recent qualified immunity decisions
do not shift this analysis. In Kisela v. Hughes,
police officers in Tucson, Arizona responded to a call that a
woman was behaving erratically with a knife and that she had
been hacking at a tree.[65] When officers arrived on scene, the
suspect, Amy Hughes, emerged from a house holding a large
kitchen knife, and approached to within "striking
distance" of a bystander in the driveway.[66] One of the officers, Andrew Kisela,
whose further approach was impeded by a chain-link fence,
repeatedly ordered Hughes to drop the knife, but Hughes did
not follow his commands.[67] Kisela then fired on Hughes through
the fence.[68]Hughes brought a
Section 1983 excessive force claim against
Kisela.[69]Reviewing a denial of
qualified immunity to Kisela, the Supreme Court held that, in
light of the officer's limited knowledge of the situation
and Hughes's refusal to follow his repeated commands to
drop the knife while within striking distance of the
bystander-obstinance that heightened the risk of immediate
harm to another-the law did not clearly establish that the
officer's resort to deadly force was
unlawful.[70]
In this
case, Officers Cassidy and Hunter found themselves in a
search for a suicidal teenager who they knew had already
encountered fellow officers and walked away from them with
his gun to his head, non-responsive, but without aggressive
action. The circumstances of the officers' encounter with
Ryan, as in Baker, remain heavily disputed: as to
whether Ryan was aware of the officers, whether and how he
turned and aimed his gun, and whether Hunter warned Ryan to
disarm himself. The district court here defined the facts in
a 21-page opinion, finding genuine disputes regarding these
facts, and, viewing these disputes in a light most favorable
to the Coles, concluded that a reasonable jury could find
that Ryan made no threatening or provocative gesture to the
officers and posed no immediate threat to them. Unlike in
Kisela, where the officer repeatedly warned an armed
suspect to disarm, yet that suspect, facing the officer and
hearing his warnings, refused to disarm, here the district
court concluded that a reasonable jury could find Cassidy and
Hunter opened fire upon Ryan without warning, even though it
was feasible. On these facts, the officers' conduct
violates clearly established law.
Rather
than engage on the facts as we must take them at the summary
judgment stage, the officers repeatedly argue from a
different set of facts. While the district court found that
Ryan was initially facing away from the officers when they
fired the first shot, the officers now describe his
"armed turn towards Officer Hunter." While the
district court found that Ryan kept his gun aimed at his own
head and never pointed it at the officers, the officers now
suggest that Ryan's gun was "below his head,"
moving towards Hunter, and then only momentarily turned back
towards Ryan's head at the moment he fired (ignoring
Hunter's sworn statement that he fired only when the gun
was pointed toward him-a story prosecutors accepted until a
ballistics report exposed its impossibility). And although
the district court found that Ryan was not given an
opportunity to disarm himself, the officers contend that he
was warned to disarm before being shot. "Had the
Officers delayed longer, reaction time lag would have
precluded their ability to stop [Ryan] from shooting Officer
Hunter," they argue. Based on this alternative set of
facts, echoed again in oral argument to us as a full court,
and in the teeth of those found by the district court, the
officers now contend Ryan posed a "deadly threat,"
and no clearly established law in 2010 put the officers'
response of firing in self-defense beyond the law.
The
Coles and amicus Cato Institute are correct that it is beyond
our jurisdiction to consider the officers' set of facts,
a narrative evolving over time. "[I]f an excessive force
claim turns on which of two conflicting stories best captures
what happened on the street," the caselaw "will not
permit summary judgment in favor of the defendant official. .
. . [A] trial must be had."[71] Whereas the officers will have a
chance to present their factual narrative-and to question the
Coles'-at trial, they cannot contest the facts in the
current appeal.[72]
The
dissents also take issue with the disputed facts. Judge
Duncan focuses on what he terms "undisputed
pre-encounter events." But, particularly in light of the
officers' evolving stories, it is disputed whether any of
the events recounted were known to Hunter or Cassidy when
they fired on Ryan. The dissent cites to the reports and
affidavits of other officers and individuals to describe the
events occurring before Hunter and Cassidy were called to the
scene.[73] But looking at the
evidence in the light most favorable to the Coles, Hunter and
Cassidy were not aware of the disturbance at the Coles'
house the previous night, the alleged cache of weapons left
at the Reeds' house, Ryan's alleged suicidal threat,
or his threat to shoot anyone who came near him.
And of
course, what matters is what the defendant officers knew when
they shot Ryan. See, e.g., White v. Pauly,
137 S.Ct. 548, 550 (2017) (per curiam) ("Because this
case concerns the defense of qualified immunity . . . the
Court considers only the facts that were knowable to the
defendant officers."); Kingsley v. Hendrickson,
135 S.Ct. 2466, 2474 (2015) (stressing that "a court
must judge the reasonableness of the force used from the
perspective and with the knowledge of the defendant
officer"). The dissents overlook the fundamental reason
most of these facts should not be part of the analysis: we
consider only what the officers knew at the time of their
challenged conduct. "Facts an officer learns after the
incident ends-whether those facts would support granting
immunity or denying it-are not relevant." Hernandez
v. Mesa, 137 S.Ct. 2003, 2007 (2017) (per curiam);
see also Brown v. Callahan, 623 F.3d 249, 253
("An official's actions must be judged in light of
the circumstances that confronted him, without the benefit of
hindsight." (citing Graham v. Connor, 490 U.S.
386, 396-97 (1989))). Despite the many "red flags"
listed by the dissents as known to others, only those known
to Hunter and Cassidy are relevant to the qualified immunity
analysis.
Judge
Jones's dissent fares no better in addressing some of the
key facts of the shooting itself. Contrary to its assertion,
the district court found that Ryan was facing at a 90-degree
angle away from the officers when he was first shot.
Cole, 68 F.Supp.3d at 644. As for the
"warning," the district court found that a
reasonable jury could conclude that Ryan "was not given
an opportunity to disarm himself before he was shot."
Id. Relitigating the district court's assessment
of factual disputes is not our role on interlocutory review.
What
Hunter and Cassidy knew before shooting at Ryan, whether they
warned him before doing so, and what actions Ryan took before
being shot are all disputed. The district court must afford
Cassidy and Hunter qualified immunity at the earliest point
the defense's applicability is determinable. Here, we
have not yet reached that point. It will be for a jury to
resolve what happened on October 25, 2010. The district court
did not err in denying the officers qualified immunity at the
summary judgment stage.
III
The
district court determined that genuine disputes of fact
regarding Cassidy's and Hunter's entitlement to
qualified immunity remain. We AFFIRM the district court's
denial of summary judgment on the Coles' excessive-force
claim and DISMISS Cassidy and Hunter's appeal; AFFIRM
denial of the motion to dismiss the Coles' Fourteenth
Amendment false-charges claim; REVERSE denial of the motion
to dismiss the Coles' Fourth Amendment and Brady
fabrication-of-evidence claims; and return the case to the
district court for trial and resolution of issues consistent
with this opinion.
JENNIFER WALKER ELROD, Circuit Judge, joined by CARL E.
STEWART, Chief Judge, and EDITH BROWN CLEMENT, CATHARINA
HAYNES, STEPHEN A. HIGGINSON, GREGG COSTA, and KURT D.
ENGELHARDT, Circuit Judges, concurring:
I
concur fully in the majority opinion. Despite the outcry of
the dissenting opinions, there is no new law being made or
old law being ignored. The majority opinion takes no position
on the public policy issues of the day regarding policing and
the mentally ill. Rather, it follows the longstanding en
banc rule that "we lack jurisdiction to review the
genuineness of a fact issue" on an
interlocutory appeal of a denial of summary judgment based on
qualified immunity. Melton v. Phillips, 875 F.3d
256, 261 (5th Cir. 2017) (en banc) (quoting
Allen v. Cisneros, 815 F.3d 239, 244 (5th Cir.
2016)); Kinney v. Weaver, 367 F.3d 337, 341, 346-47
(5th Cir. 2004) (en banc). As the able district
court determined, the facts are very much in dispute.
EDITH
H. JONES, Circuit Judge, joined by SMITH, OWEN, HO, DUNCAN
and OLDHAM, Circuit Judges, dissenting:
What
"clearly established law" says that only a rogue
cop would have shot at this mentally disturbed teenager
within 3 to 5 seconds as the teen emerged from dense bushes
ten to twenty feet away from Officer Hunter and, with his
finger on the trigger of a loaded pistol pointed in the
direction of his own head, began turning in the officer's
direction? The majority state this is an "obvious
case" for the denial of qualified immunity: the officers
could not shoot without first announcing themselves to Cole
or looking down the barrel of his gun. What is so obvious?
Contrary to the majority's dangerously unrealistic
proposition, "action beats reaction" every time.
Ontiveros v. City of Rosenberg, 564 F.3d 379, 384
(5th Cir. 2009). Neither we nor the Supreme Court has ever
held that police officers confronted in close quarters with a
suspect armed and ready to shoot must hope they are faster on
the draw and more accurate. The increasingly risky profession
of law enforcement cannot put those sworn to "serve and
protect" to a Hobson's choice: place their
lives on the line by heroic forbearance or risk their
financial security in defense of lawsuits. The Supreme Court
has repeatedly stated in plain terms that the purpose of
qualified immunity is to prevent precisely this quandary.
Respectfully
dissenting, we are convinced that the Supreme Court's
remand from the original panel opinion denying immunity meant
something; the governing Supreme Court law is foursquare in
the corner of Officers Hunter and Cassidy; and they were
entitled to receive summary judgment confirming their
immunity from suit, not simply from liability.[1]
I.
Background
A.
Undisputed facts
The
majority opinion paints a picture of the relevant facts that
has evolved considerably from the first and second panel
opinions to this final majority version. Compare Cole v.
Carson, 802 F.3d 752, 755-56, 758 (5th Cir. 2015),
vacated sub nom. Hunter v. Cole, 137 S.Ct. 497
(Cole I), with Cole v. Carson, 905 F.3d
334, 337-340 (5th Cir. 2018) (Cole II), and
supra. Qualified immunity for the use of deadly force is
assessed at the moment a law enforcement officer confronts a
suspect, Graham v. Connor, 490 U.S. 386, 397, 109
S.Ct. 1865, 1872 (1989), but the officer's understanding
of facts leading up to the event color the question whether
"a reasonable officer" could have believed his life
or the lives of others were endangered. White v.
Pauly, 137 S.Ct. 548, 550, 552 (2017). To the
majority's picture, it is necessary to add undisputed
facts recited in the prior opinions and undisputed evidence
from plaintiffs' experts. Hornbook summary judgment law
holds that although disputed facts are viewed in the light
most favorable to non-movants, the entire record must be
considered. Scott v. Harris, 550 U.S. 372, 380, 127
S.Ct. 1769, 1776 (2007). Further, this court reviews
de novo the materiality of the relevant facts.
Foley v. Univ. of Houston, Sys., 355 F.3d 333, 337
(5th Cir. 2003).
First,
both officers who shot at Cole were aware that he had mental
issues. Officer Cassidy had learned that Cole "had
threatened to shoot anyone who tried to take his gun and had
refused an order to drop his weapon." Cole II,
905 F.3d at 338. Officer Hunter watched Cole walk steadily
down the train tracks ignoring other police who were yelling
at him to stop and put down his 9 mm semi-automatic pistol.
Both officers were aware that a bulletin had been
disseminated about Cole to all law enforcement in Garland and
Sachse, and three nearby schools in the vicinity of Highway
78, where Cole was heading, were being protected. Cole
II, 905 F.3d at 337-38.
Second,
Cole emerged from the vegetation, unaware of the
officers' presence, within ten to twenty feet of Officer
Hunter, and as he turned toward the officers, three to five
seconds elapsed. That's less time than it takes to read
the preceding sentence. Cole initially stood at a 90 degree
angle to the police and then began turning counterclockwise
toward them. His movement is conceded by plaintiffs'
expert, supported by the ballistic evidence, and recounted in
the district court opinion. Cole II, 905 F.3d at 338
("Cole began to turn counterclockwise.").
Plaintiff's expert opines this interval was sufficient
for the officers to command Cole to disarm and observe his
reaction.
Third,
his loaded pistol was pointed within thirty inches toward his
head, Cole I, 802 F.3d at 756, and Cole's finger
was on the trigger.
Next,
the officers fired seven shots, two of which hit Cole.
Officer Hunter's first shot hit Cole in the left arm,
penetrating his body from the left. Another of Hunter's
shots merely grazed Cole's left arm as he continued to
turn and was facing Hunter. Cole II, 905 F.3d at
339. Cole's gun, according to the plaintiffs,
involuntarily discharged and hit him in the head,
"leaving stippling-gunpowder residue around the wound
due to the gun being fired from less than thirty inches
away." Cole I, 802 F.3d at 756.
Finally,
the bodycam evidence shows that some officer began to issue a
warning at about the time the shooting started. Cole
II, 905 F.3d at 338.
B.
Prior panel reasoning
The
district court denied qualified immunity to Hunter and
Cassidy for the shooting[2] and refused to dismiss the
allegations of falsified evidence against Hunter, Cassidy,
and Carson.
The
original panel opinion affirmed, [3] concluding as to the excessive force
allegation that "if the Coles' version of the
evidence is believed, it was not objectively reasonable to
use deadly force against Ryan Cole when the teenager emerged
on foot from the wooded area with a gun to his own head and
turned left." With regard to immunity, the panel held
that by October 2010, "reasonable officers were on
notice that they could not lawfully use deadly force to stop
a fleeing person who did not pose a severe and immediate
risk to the officers or others, and they had many
examples of the sorts of threatening actions which could
justify deadly force. Turning left while unaware of an
officer's presence is not among them." Cole
I, 802 F.3d at 762 (emphasis added) (footnote omitted).
The panel's principal support for its legal reasoning was
Luna v. Mullenix, 773 F.3d 712 (5th Cir. 2014),
rev'd sub nom. Mullenix v. Luna, 136 S.Ct. 305
(2015). According to the panel, "the central [disputed]
issue" is "whether Ryan pointed his gun at Officer
Hunter." Cole I, 802 F.3d at 762. Absent such a
threatening gesture, Cole was said to present no sufficient
threat. Id.
The
next panel opinion was formulated after the Supreme Court
reversed us in Mullenix on the grounds that
"none of our [the Supreme Court's own] precedents
'squarely governs' the facts here. Given [the
suspect's] conduct, we cannot say that only someone
'plainly incompetent' or who 'knowingly
violate[s] the law' would have perceived a sufficient
threat and acted as [the officer] did." 136 S.Ct. at
310. On this second go-round, the panel conceded the
deficiency of the "no sufficient threat" rule, but
then concluded that, taken in the light most favorable to the
plaintiffs, Cole's conduct posed "no threat"
when he was shot, Cole II, 905 F.3d at 343, and the
officers therefore violated a clearly established "no
threat" rule. Tennessee v. Garner is cited as
the basis for this "bright line" rule.[4] 471 U.S. 1, 105 S.Ct. 1694 (1985).
This opinion was vacated by a vote to reconsider the case en
banc.
C.
The Current Majority Opinion
Pivoting
yet again, the en banc majority opinion commences with a
paean to "the worker's . . . right to the protection
of a jury," not even bothering to cite Supreme Court
authorities that explain why qualified immunity is immunity
from suit, not just liability. The majority opinion omits or
ignores material undisputed facts recited above-the knowledge
of the officers, Cole's turning toward them, the
significance of his finger in a loaded pistol, and the three
to five second interval-and hides behind the assertion that,
relevant to qualified immunity, there are "genuine
factual disputes as to Ryan's and the officers'
conduct" such that a reasonable jury could find that
Cole posed no "immediate threat" to the officers or
others. Two paragraphs later, asserting that Cole posed
"no threat . . . to support firing without
warning," the majority deem this an "obvious
case" for denial of immunity, because the "officers
had time and opportunity to give a warning and yet chose to
shoot first instead." The "obvious case"
rationale again derives, in the majority's view, from
Garner, fortified only by one Fifth Circuit case and
the Supreme Court's decision in Kisela v
Hughes.[5]
DISCUSSION
The
only legal question that needs to be addressed by this court
is whether, under the circumstances of this five-second
confrontation, every reasonable police officer would
have reasonably perceived no life-threatening danger
such that deadly force could be used to incapacitate Cole
without a preliminary warning. Put otherwise, as a matter of
law, was it clearly established that officers may not fire on
a suspect, armed and ready to shoot a pistol, who is turning
in their direction with one of their brethren ten to twenty
feet away, unless the gun barrel points at them or they first
shout a warning and await his response?
The
majority deny qualified immunity, seeming to answer on the
basis of "disputed fact issues" that Cole posed
"no threat." The majority's reasoning is at too
high a level of generality. And the majority ignore the
critical criterion for qualified immunity in Fourth Amendment
cases: the reasonableness of the officers' reasonable
perceptions. In sum, the majority here double down on the
mistakes that got our court reversed in
Mullenix.[6]
Before
discussing these problems in detail, it is necessary to
recapitulate the reasoning behind the Supreme Court's
qualified immunity cases. The majority's bare mention of
the standards for qualified immunity ignores the Court's
rationale for the defense. Beginning with Monroe v.
Pape in 1961, the Supreme Court unleashed federal courts
to enforce constitutional commands against state actors
pursuant to 42 U.S.C. § 1983. See Monroe v.
Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484 (1961). A
foreseeable consequence of facilitating such lawsuits was
that a deluge of litigation would follow, at least some of it
ill-founded or frivolous. What was to be done to limit claims
to those that might have merit? The Court decided in
Pierson v. Ray that police officers sued under
Section 1983 should enjoy qualified immunity accorded at
common law. 386 U.S. 547, 556-57, 87 S.Ct. 1213, 1219 (1967).
For
over fifty years, the Court has developed the standards of
qualified immunity, well aware from the beginning that
"the local police officer" is "that segment of
the executive branch . . . that is most frequently and
intimately involved in day-to-day contacts with the
citizenry, and hence, most frequently exposed to situations
which can give rise to claims under Sec. 1983 . . . ."
Scheuer v. Rhodes, 416 U.S. 232, 244-45, 94 S.Ct.
1683, 1691-92 (1974). The breadth of this shield represents a
deliberate balance between affording a damages remedy for
constitutional abuses and the social and personal costs
inflicted by meritless claims. Anderson v.
Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038
(1987). The costs to society include the costs of litigation,
the diversion of limited public resources, the deterrence of
able people from going into public service, and the danger
that fear of being sued will discourage officials from
vigorously performing their jobs. Id.; Harlow v.
Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736
(1982). The devastating costs imposed by unfounded lawsuits
on officers otherwise entitled to immunity are reputational,
potentially employment-related, financial and emotional. For
these reasons, the Court has repeatedly explained that
qualified immunity shields public officials not just from
liability but from suit. See Mitchell v. Forsyth,
472 U.S. 511, 526, 105 S.Ct. 2806, 2815 (1985); Pearson
v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 815
(2009) ("Qualified immunity is lost if a case is
erroneously permitted to go to trial."). Some in the
lower federal courts may disapprove of the Court's half
century of authorities, but we may not functionally disregard
them.
Nearly
as venerable as the general defense of qualified immunity are
the decisions applying it to Fourth Amendment claims against
law enforcement officers. Anderson v. Creighton
affirmed in 1987 that a law enforcement officer who
participates in a warrantless search may be entitled to
qualified immunity "if he could establish as a matter of
law that a reasonable officer could have believed the search
to be lawful." 483 U.S. at 638, 107 S.Ct. at 3038.
Justice Scalia's opinion reminded that "qualified
immunity protects all but the plainly incompetent or those
who knowingly violate the law." Id. (internal
quotation marks omitted). In determining the objective legal
reasonableness of the allegedly unlawful action, "[i]t
should not be surprising . . . that our cases establish that
the right the official is alleged to have violated must have
been 'clearly established' in a more particularized,
and hence more relevant, sense: The contours of the right
must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right."
Id. at 640, 107 S.Ct. at 3039.
Two
years later, the Court clarified that for alleged Fourth
Amendment excessive force violations, reasonableness
"must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of
hindsight." Graham, 490 U.S. at 396, 109 S.Ct.
at 1872. 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."
Id. at 396-97, 109 S.Ct. at 1872. Ultimately,
"the question is whether the officers' actions are
'objectively reasonable' in light of the facts and
circumstances confronting them . . . ." Id. at
397, 109 S.Ct. at 1872. Quoting these statements from
Graham, the Court later explained that the test for
qualified immunity for excessive force "has a further
dimension" in addition to the deferential, on-the-scene
evaluation of objective reasonableness. Saucier v.
Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 2158 (2001).
Justice Kennedy explained: "The concern of the immunity
inquiry is to acknowledge that reasonable mistakes can be
made as to the legal constraints on particular police
conduct." Id. "Qualified immunity operates
in this case, then, just as it does in others, to protect
officers from the sometimes hazy border between excessive and
acceptable force and to ensure that before they are subjected
to suit, officers are on notice their conduct is
unlawful." Id. at 206, 121 S.Ct. at 2158
(internal citation and quotation marks omitted).
Evaluating
the qualified immunity defense is thus a two-step process.
The first is to determine whether the Fourth Amendment has
been violated by conduct that, viewed from the officer's
perspective and information at the time, is objectively
unreasonable.[7] The second step
assesses the objective legal reasonableness of the action,
that is, whether every reasonable officer would have known
that the conduct in question was illegal. See
Pearson, 555 U.S. at 232, 129 S.Ct. at 815-16. The
illegality must have been apparent, as held in cases that are
factually similar to the situation confronting the officer.
White, 137 S.Ct. at 542. Immunity must be granted to
all but the plainly incompetent or those who knowingly
violate the law. The Supreme Court has enforced immunity
where officers acted negligently, Anderson, 483 U.S.
at 641, 107 S.Ct. at 3039-40; or when they could have used
another method to subdue a suspect, Mullenix, 136
S.Ct at 310; or when the law governing their behavior in
particular circumstances is unclear. White, 137
S.Ct. at 552. The Court emphasizes that the specificity of
the applicable "clearly established" rule is
especially important in Fourth Amendment cases.
Mullenix, 136 S.Ct. at 308.
By
denying plaintiffs their "day in court" at a
preliminary stage, qualified immunity operates as a
counterintuitive, albeit vital, defense. Thus, the Supreme
Court has regularly reversed denials of qualified immunity
where lower courts misapplied the standards. See Wesby v.
District of Columbia, 816 F.3d 96, 102 (D.C. Cir. 2016)
(Kavanaugh, J., dissenting) (citing eleven Supreme Court
cases in five years reversing lower courts in the qualified
immunity context including Mullenix v. Luna, 136
S.Ct. 305 (2015), Taylor v. Barkes, 135 S.Ct. 2042
(2015); City and County of San Francisco, Calif. v.
Sheehan, 135 S.Ct. 1765 (2015); Carroll v.
Carman, 574 U.S. 13, 135 S.Ct. 348 (2014); Plumhoff
v. Rickard, 572 U.S. 765, 134 S.Ct. 2012 (2014);
Wood v. Moss, 572 U.S. 744, 134 S.Ct. 2056 (2014);
Stanton v. Sims, 571 U.S. 3, 134 S.Ct. 3 (2013);
Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088
(2012); Ryburn v. Huff, 565 U.S. 469, 132 S.Ct. 987
(2012); Messerschmidt v. Millender, 565 U.S. 535,
132 S.Ct. 1235 (2012); Ashcroft v. al-Kidd, 563 U.S.
731, 131 S.Ct. 2074 (2011)). Unfortunately, the majority here
has fallen into the trap of "letting the jury sort out
the truth" despite the gravity of the situation these
officers faced.
As
explained above, it is undisputed that the two officers
confronted and then shot at Cole as he emerged from dense
bushes ten to twenty feet from Officer Hunter, unaware of
their presence, and began to turn in their direction. This
all happened within three to five seconds. While he turned,
Cole held a loaded 9mm semiautomatic pistol, finger on the
trigger, pointed in the direction of his own head. The
officers knew he was mentally distraught, had ignored other
police commands to disarm, had issued threats, and proceeded
walking in the direction of nearby schools.
For
immunity purposes, the question phrased one way is whether
any reasonable officers could have believed that
Cole's split-second turning toward them posed a
life-threatening danger such that lethal force was necessary.
Alternatively, what "clearly established law" held
as of October 2010 that under all of the relevant
circumstances, deadly force was not justified unless either a
warning was given and the suspect allowed a chance to react,
or the suspect actually turned his loaded pistol on the
officer? The answer here directly parallels the Supreme
Court's reasoning in Mullenix, which the
majority seriously shortchanged.
In
Mullenix, this court had denied qualified immunity
to a trooper whose shot fatally wounded a suspect fleeing
police in a high-speed chase. The Supreme Court's basic
criticism of the panel decision was this: "In this case,
the Fifth Circuit held that Mullenix violated the clearly
established rule that a police officer may not use deadly
force against a fleeing felon who does not pose a sufficient
threat of harm to the officer or others. Yet this Court has
previously considered-and rejected-almost that exact
formulation of the qualified immunity question in the Fourth
Amendment context." Mullenix, 136 S.Ct. at
308-09 (internal quotation marks and citation omitted).
The
majority here posit as clearly established law, indeed an
"obvious case," that a police officer may not use
deadly force-without prior warning- against an armed,
distraught suspect who, with finger in the pistol's
trigger, posed "no threat" while turning toward an
officer ten to twenty feet away. But in Mullenix,
the Supreme Court reversed this court because "[t]he
general principle that deadly force requires a sufficient
threat hardly settles this matter." Id. at 309.
Likewise, here, the majority's "no threat" and
"obvious case" conclusions do not settle the matter
of clearly established law.[8]
That
the majority here purport to extract clearly established law
from Tennessee v. Garner was rebuked in
Mullenix. The Supreme Court corrected this court by
summary reversal because the Court itself had summarily
rejected applying the general standard of Tennessee v.
Garner to deny qualified immunity. Mullenix,
136 S.Ct. at 309 (citing Brosseau v. Haugen, 543
U.S. 194, 199, 125 S.Ct. 596, 599 (2004)). Instead, the
"correct inquiry" was whether it was clearly
established that the Fourth Amendment prohibited the
officer's conduct in the precise situation she
confronted. Id. Including Mullenix and
Brosseau, a series of Supreme Court cases has held
that Tennessee v. Garner does not state
"clearly established law" governing the use of
deadly force other than in Garner's precise
factual context, the shooting of an unarmed burglary suspect
fleeing away from an officer.[9] The confrontation in this case with
an armed, ready-to-fire suspect is "obviously"
different.
We fail
to understand how the denial of qualified immunity to
Officers Hunter and Cassidy can be rescued simply by intoning
that this is an "obvious case" under Garner.
Garner affirmed the constitutionality of deadly force
against suspects when necessary to protect the life of
officers or others "if, where feasible, some warning has
been given." 471 U.S. at 11-12, 105 S.Ct. at
1701.[10] But Garner in
no way renders "clearly established" a requirement
to give a warning, and await the suspect's response,
before shooting. Nor does it mandate that the suspect's
weapon be trained on the officer or others. Like the rest of
the calculus surrounding Fourth Amendment reasonableness, the
"feasibility" of any such potentially deadly delay
or factual nuance must be subjected to case-specific
balancing with deference paid to the officer's reasonable
perceptions in the midst of a tense situation.
Graham, 490 U.S. at 396, 109 S.Ct. at 1872. Indeed,
in describing its holding at the outset, Garner
states only that "[deadly] force may not be used unless
it is necessary to prevent the escape [of an apparently
unarmed suspected felon] and the officer has probable cause
to believe that the suspect poses a significant threat of
death or serious physical injury to the officer or
others." 471 U.S. at 3, 105 S.Ct. at 1697.[11] No mention of a warning appears in
this introduction, and "probable cause," not a
fact-specific test, is the measure of the threat of harm.
Characterizing
this case as a "no threat" or "obvious"
Fourth Amendment violation is wrong for additional reasons.
Whether, under the material undisputed facts, Cole presented
"no threat" to a reasonable police officer is the
relevant issue to assess a Fourth Amendment violation. But
the immunity question, which the majority elides, is whether
every reasonable officer in this factual context
would have known he could not use deadly force. See
Pearson, 555 U.S. at 232, 129 S.Ct. at 815-816. The
majority's analysis conflates these inquiries. Second,
the importance of grounding the inquiry in a specific factual
context cannot be overstated. In this case, if Officer Hunter
had stood a hundred feet away from Cole, or Cole had not been
turning toward the officers, or Cole had put the handgun in
his pocket and wasn't touching it, the analysis of
qualified immunity could be quite different. Third,
describing a situation as posing "no threat" is a
conclusion, not an explanation or, as the majority seems to
think, an exception to defining clearly established law in a
specific context. No doubt there are rare "obvious"
cases of Fourth Amendment violations committed by officers
who are plainly incompetent or who knowingly violate the law.
In the wide gap between acceptable and excessive uses of
force, however, immunity serves its important purpose of
encouraging officers to enforce the law, in "tense,
uncertain and rapidly evolving" split-second situations,
rather than stand down and jeopardize community
safety.[12]
In
their sole, erroneous dependence on Garner, the
majority, "can cite no case from [the Supreme] Court
denying qualified immunity because officers [entitled to
apprehend Cole] selected one dangerous alternative over
another." Mullenix, 136 S.Ct. at 310. The
Mullenix Court showed that if anything,
"clearly established law" was contrary to the
plaintiff's position. The Court cited two prior Supreme
Court car chase cases that resulted in immunity even though
the fugitives-unlike the suspect in Mullenix-had not
verbally threatened to kill any officers in their path.
Id. at 310 (citing Scott, 550 U.S. at 384,
127 S.Ct. at 1778; Plumhoff, 572 U.S. at 777, 134
S.Ct at 2022). And in Mullenix itself, as here, the
trooper had not warned the fugitive before shooting at his
speeding car. These cases "reveal[ed] the hazy legal
backdrop against which Mullenix acted," Id. at
309. Accordingly, the Court admonished, "[w]hatever can
be said of the wisdom of Mullenix's choice, this
Court's precedents do not place the conclusion that he
acted unreasonably in these circumstances beyond
debate." Id. at 311 (internal quotation marks
omitted).
Not
only do the majority cite "no case" in which the
Supreme Court denied qualified immunity to an officer who
used deadly force against a mentally distraught individual in
circumstances like the present case, but to the contrary, the
Court required qualified immunity in two somewhat similar
cases. In Sheehan, officers used deadly force to
subdue a mentally ill woman during an armed confrontation.
The Court restated that the Fourth Amendment is not violated
even if police officers, with the benefit of hindsight, may
have made some mistakes, because "[t]he Constitution is
not blind to 'the fact that police officers are often
forced to make split-second judgments.'"
Sheehan, 135 S.Ct. at 1775 (quoting
Plumhoff, 572 U.S. at 775, 134 S.Ct. at 2020).
Even
closer to this case is White v. Pauly, where an
officer arriving at the scene of an armed confrontation shot
and killed a suspect without knowing whether his
earlier-arrived colleagues had identified themselves as
police. 137 S.Ct. at 550-51. In White, the Court
chastised the lower court for "misunderst[anding]"
the "clearly established" analysis by relying on
the generalized pronouncements in Graham and
Garner. Id. at 552. Whether Officer White should
have second-guessed the preceding conduct of fellow officers
hardly presented an "obvious case" pursuant to
Garner. The Court speculated that perhaps, given the
three-minute delay between when he arrived and when shots
rang out, Officer White "should have realized that [a
warning about police presence] was necessary before using
deadly force." Id. There is a world of
difference between three minutes and three seconds, which
Officer Hunter had here, and between Officer White's
securing himself behind a stone wall fifty feet from the
suspect and Officer Hunter's standing fully exposed only
ten to twenty feet away from Cole. The majority cannot
reconcile the Supreme Court's insistence upon qualified
immunity in White with their denial of the defense
to Officers Hunter and Cassidy.
Kisela
v. Hughes, cited in support of the majority, in no way
articulates clearly established law concerning the necessity
of a warning. First, the Court in Kisela overturned
the Ninth Circuit's denial of qualified immunity without
addressing the preliminary Fourth Amendment violation. 138
S.Ct. at 1152. A decision holding only that there was no
"clearly established law" cannot itself have
defined "clearly established law." The Court also
criticized the Ninth Circuit for failing to implement
correctly the rule that an officer has not "violated a
clearly established right unless the right's contours
were sufficiently definite that any reasonable official in
the defendant's shoes would have understood that he was
violating it." Id. at 1153 (internal quotation
marks omitted). The Court catalogued all the relevant
circumstances of the confrontation that provoked the
shooting: a knife-armed, threatening suspect, whose bizarre
behavior had been called in to 911, disobeyed officers'
commands to disarm for up to one minute before they felt
compelled to shoot. Id. The Court concluded,
"[t]his is far from an obvious case in which any
competent officer would have known that shooting Hughes to
protect [the third party] would violate the Fourth
Amendment." Id. Also "far from
obvious" is the case before us, in which the officers
had five seconds, not a whole minute, in which to decide
whether to shoot at Cole.
Finally,
the Supreme Court's decision in Tolan v. Cotton
adds nothing to the substance of the qualified immunity
discussion. In Tolan, the Court enumerated four
critical, disputed evidentiary contentions relating to the
officer's perception of danger to himself and thus to
qualified immunity. 572 U.S. 650, 657-59, 134 S.Ct. 1861,
1866-67 (2014). Because this court had failed to credit the
plaintiff's disputed version of these facts, the Court
vacated summary judgment for the officer and remanded without
deciding any merits issue. Id. at 657, 134 S.Ct. at
1866. In contrast, this dissent credits only undisputed
material facts and plaintiffs' version of disputable
facts.
Like
this court's panel in Mullenix, the majority
here offer no controlling Supreme Court precedent, including
Garner, to support that "clearly established
law" mandated that the officers hold their fire until
they had both warned Cole and given him a chance to drop his
gun or until he pointed the loaded weapon directly at them.
For
good measure, the Mullenix Court also considered the
potential similarity of lower court decisions that dealt with
qualified immunity. 136 S.Ct. at 311. Fifth Circuit case law,
the Court noted, did not "clearly dictate the conclusion
that Mullenix was unjustified in perceiving grave danger and
responding accordingly." Id. at 311 (citing
Lytle v. Bexar County, 560 F.3d 404, 412 (5th Cir.
2009)). But the Court quoted with approval an Eleventh
Circuit case that granted immunity to a sheriff's deputy
who fatally shot a mentally unstable individual "who was
attempting to flee in the deputy's car, even though at
the time of the shooting the individual had not yet operated
the cruiser dangerously. The court explained that 'the
law does not require officers in a tense and dangerous
situation to wait until the moment a suspect uses a deadly
weapon to act to stop the suspect…'"
Id. at 311 (quoting Long v. Slaton, 508
F.3d 576, 581-82 (11th Cir. 2007)). Here, too, the thrust of
Mullenix contradicts the majority's logic and
holding.
Moreover,
to the extent it is relevant[13], Fifth Circuit law does not support
denying qualified immunity to Officers Hunter and Cassidy.
The district court and, inferentially, the majority demand
that qualified immunity be granted only if the suspect either
disobeys immediate commands to disarm or points his weapon at
the officers. The district court described such threatening
actions as a Manis act.[14] It is true that
in previous deadly force cases, this court approved qualified
immunity for officers who reasonably believed that a
non-compliant suspect was reaching toward where he could
retrieve a weapon. See Manis, 585 F.3d at 842;
see also Reese v. Anderson, 926 F.2d 494, 500-01
(5th Cir. 1991); Young v. City of Killeen, Tx., 775
F.2d 1349, 1352 (5th Cir. 1985). The hitch in these
particular cases is that there wasn't actually a weapon,
yet the officer's objectively reasonable perception was
determinative as a matter of law. In another such officer
shooting case, this court upheld qualified immunity where the
suspect, who was being interrogated for drunk driving at the
side of a freeway, turned to walk away from the officer, then
appeared to turn around toward him while reaching under his
shirttail for what the officer thought could be a concealed
weapon. Salazar-Limon v. City of Houston, 826 F.3d
272, 278 (5th Cir. 2016). This court added,
"[f]urthermore, …in the context of this case, it
is immaterial whether Salazar turned left, right, or at all
before being shot. Specifically, we have never required
officers to wait until a defendant turns toward them, with
weapon in hand, before applying deadly force to ensure their
safety." 826 F.3d at 279 n. 6.
While a
"Manis act" can sustain qualified immunity
even where no weapon is visible, it is not logical for an
additional "act" to be mandated where the officers
confront a suspect armed, ready to shoot his pistol, and
turning toward them. An officer may be forced into shooting
an unarmed suspect by a Manis act, and thus obtain
qualified immunity. But it is perverse and inconsistent with
Fifth Circuit law to hold that the officer has no qualified
immunity because she is constitutionally forbidden to shoot
an armed suspect in close quarters without either looking
down the barrel of the weapon or awaiting his response to her
command.
In
fact, that is exactly what this court has not held. In
Ramirez v. Knoulton, 542 F.3d 124, 127 (5th Cir.
2008), police shot a suspect they believed to be suicidal as
he stood in profile to them, with a handgun in his right
hand, and brought his hands together in front of his
waist." He "never raised his weapon nor aimed it at
the officers." Id. at 129. The court held that
based on the officers' reasonable perception, no Fourth
Amendment violation occurred, because the Constitution
"does not require police officers to wait until a
suspect shoots to confirm that a serious threat of harm
exists." Id. at 130. See also Colston, 130 F.3d
at 100; Ontiveros, 564 F.3d at 385 (holding no
constitutional violation where officer thought suspect was
reaching into his boot for a weapon during confrontation in a
mobile home). As the Supreme Court put it in
Mullenix, "the mere fact that courts have
approved deadly force in more extreme circumstances says
little, if anything, about whether such force was reasonable
in the circumstances here." 136 S.Ct. at 312.
The
majority describe only one Fifth Circuit police shooting
case, out of dozens this court has decided, as an
"obvious case." Baker v. Putnal, 75 F.3d
190 (5th Cir. 1996). Whether that characterization applies to
the claimed Fourth Amendment violation in Baker, to
qualified immunity analysis, or simply to this court's
decision to remand for trial is unclear in the majority
opinion. Baker, however, says nothing about the
merits of the case or about clearly established law, holding
instead that "[t]here are simply too many factual issues
to permit the Bakers' § 1983 claims to be disposed
of on summary judgment." Baker, 75 F.3d at 198.
Hence, like Kisela, Baker cannot support
any rule of clearly established law, much less explain what
law is "obvious." Significantly, in Baker,
whether the suspect was holding a gun visible to the officer
was an important hotly contested issue, with eyewitnesses
contradicting the officer's account of the incident.
Baker, 75 F.3d at 198. Cole's case, in contrast,
does not involve a "chaos on the beach" incident.
The undisputed facts are starkly different here. It is
undisputed, at a minimum, that Cole was holding a loaded
weapon, his finger in the trigger, as he emerged from the
woods; he was turning toward the officers; and they had five
seconds to react. Baker does not show that the
officers' conduct in Cole violated clearly
established law.
To sum
up, the majority opinion here repeats every error identified
by the Supreme Court when it granted summary reversal in
Mullenix and sent the instant case back for
reconsideration. The majority's "clearly
established" rule has changed, but not its errors.
Tennessee v. Garner does not formulate "clearly
established law" with the degree of specificity required
by the Supreme Court's decisions on qualified immunity.
The majority's "no threat" and "obvious
case" statements pose the issues here at an excessive
level of generality. The majority has no Supreme Court case
law demonstrating that Officers Hunter and Cassidy were
either plainly incompetent or had to know that shooting at
Cole was unconstitutional under the circumstances before them
and with the knowledge they possessed-he was mentally
distraught; he was armed with his finger in the pistol's
trigger; he was very close to Hunter; he had been walking in
the direction of schools for which extra police protection
had been ordered; and he had ignored other officers'
commands to stop and drop his weapon. And they had three to
five seconds to decide how dangerous he could be to them. The
majority cites not one case from this court denying qualified
immunity under similar circumstances. Mullenix aptly
summed it up for our purposes: "qualified immunity
protects actions in the hazy border between excessive and
acceptable force." 136 S.Ct. at 312 (internal quotation
marks omitted). "[T]he constitutional rule applied by
the Fifth Circuit was not 'beyond debate.'"
Id.
It is
not "clearly established" that police officers
confronting armed, mentally disturbed suspects in close
quarters must invariably stand down until they have issued a
warning and awaited the suspects' reaction or are facing
the barrel of a gun. "This was not a belief in possible
harm, but a belief in certain harm. The fact that they would
later discover this to be a mistaken belief does not alter
the fact that it was objectively reasonable for them to
believe in the certainty of that risk at that time."
Carnaby v. City of Houston, 636 F.3d 183, 188 n.4
(5th Cir. 2011). That is the law in the Fifth Circuit, and
the majority has pointed to no clearly established law
otherwise. Shooting at Cole may not have been the wisest
choice under these pressing circumstances, but the
officers' decision, even if assailable, was at most
negligent. Hunter and Cassidy were neither plainly
incompetent nor themselves lawbreakers. While we are
confident a jury will vindicate their actions, they deserved
qualified immunity as a matter of law. We dissent.
JERRY
E. SMITH, Circuit Judge, dissenting:
This is
a "red flag" case if ever there was one. The en
banc majority commits grave error, as carefully explained in
the dissents by Judge Jones, Judge Willett, Judges Ho and
Oldham (jointly), and Judge Duncan. Yet eleven judges join
the majority.
Abandon
hope, all ye who enter Texas, Louisiana, or Mississippi as
peace officers with only a few seconds to react to dangerous
confrontations with threatening and well-armed potential
killers. In light of today's ruling and the raw count of
judges, [1] there is little chance
that, any time soon, the Fifth Circuit will confer the
qualified-immunity protection that heretofore-settled Supreme
Court and Fifth Circuit caselaw requires.
Red
flags abound. Judge Duncan cogently details the "rich
vein of facts" describing this plaintiff's
undisputed actions in the hours leading up to the
shooting.[2]
• Red flag: a 9mm semi-automatic handgun and ammunition.
• Red flag: a double-barrel shotgun with shells.
• Red flag: a .44 magnum revolver.
• Red flag: a .38 revolver.
• Red flag: a suspect who had broken into a gun safe and
stolen an unknown quantity of ...