Colston v. Barnhart, 130 F.3d 96

Colston v. Barnhart

130 F.3d 96

5th Cir.

1997

Check Treatment

*1 COLSTON, Plaintiff-Appellee, Lorenzo Individually

Yolanda Michelle

and as Next Friend of Lauren Colston Quinton Colston, Intervenor Plain-

tiff-Appellee,

Bryan BARNHART, Department Texas Safety Officer, al.,

of Public et

Defendants,

Bryan Barnhart, Department Texas Safety Officer,

Public Defendant-

Appellant.

No. 96-40634. Appeals,

United States

Fifth Circuit.

Nov. *2 passenger was a Appellee Colston

headlight. during a Barnhart learned car. in Fields’ an out- that Fields had license check routine placed him un- standing traffic warrant and that Fields informed Barnhart der arrest. surgery. recent hurt because of his wrists result, not use handcuffs Barnhart did As a body; in- his arms behind Fields’ secure stead, cuff to secure Fields’ a flex used he body. Barnhart decided in front of his hands if car to Colston release Fields’ that he would safely and could license he had a driver’s if Bаrnhart asked Fields vehicle. drive the Fields said a driver’s license. Colston had that he did. passenger approached the then

Barnhart step asked Colston of Fields’ ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍car and side Garrigan, Stuckey & Stuckey, B. Curtis license. As his driver’s he could see out so Plaintiff-Appellee. TX, car, for Nacogdoches, told stepped out of the he that have a license and he did not hart that TX, Allen, Nacogdoches, Stefan Thomas approximately Colston was he did drive. not Colston. Yolandа Michelle for pounds; Barnhart weighed 6T” and Kraatz, Anastasiadis, Ann Demetri Jane weighed pounds. and about 5’6” General, Werner, Atty. Asst. Elizabeth Susan began talk- TX, Defendant-Appellant. Barnhart Austin, the time that for Around County Deputy Henderson ing to scene, at the Langford arrived Sheriff Jim patrol car and did near Barnhart’s but stood and Col- immediately approach Barnhart DeMOSS, KING, and DAVIS Before ston. Judges. Circuit question Colston. proceeded Barnhart DAVIS, Judge: Circuit was, he old Colston how He first asked years old.1 that he was replied appeals the deni- Bryan Barnhart Trooper ever driven if had Colston he Barnhart asked based for of his motion Af- he had not. before; stated that immunity. Because Barnhart’s qualified on car, his clipboard from retrieving his ter to defend himself use spell his last Barnhart asked plaintiff Lorenzo Colston others then complied. Barnhart name; Colston reasonable, we conclude name. Colston first asked Colston court erred he was “Sylvester,” which it was stated that immunity. grounds attempts at failed spell. After two unable to render. reverse and Accordingly, we told Barnhart “Sylvester,” Colston spelling asked Colston Barnhart was Leo. his name I. times; Col- more was three name what his approximately September On then asked it was Leo. Barnhart ston stated Bryan Policeman p.m., Texas State 9:30 was, and he his middle name what dark, part isolated driving one. he did have replied that County, Texas. U.S. 175 Henderson Fields and asked over walked time, Trooper Barnhart directed Around was; Fields an- name road what shoulder Fields to the Marcus Barnhart asked Leo. it was swered had a defective Fields’ automobile years old. was 29 that Colston The record shows Sylvester. Fields about the name Fields him. regained his feet and stated thought that he it was Colston’s mid- charged Colston. Colston knocked him to dle name. ground next to leaving him limp and motionless. returned to again Colston and asked him what name was. middle Col- prone position, From his Barnhart drew *3 again ston said that he did havе a middle gun. his Barnhart aimed at placed name. clipboard Barnhart his on was standing him Langford, between and and car, Field’s and asked Colston whether he fired shot that missed. turned, Colston was carrying any weapons. Colston re- stepped over Barnhart’s legs, outstretched sponded that he was not.2 and took about two steps away from Barn- Barnhart asked Colston to turn and face directly hart patrol car, toward Barnhart’s direction, the other Colston steps took two where Bаrnhart’s shotgun was located. At back but did not turn around. Barnhart this twice, moment Barnhart fired hitting ordered Colston get knees; to on his down Colston in the back of right his arm and in placed Colston turned and his hands above his buttocks. head, his but get did not on his knees. Barn- A video recorder mounted on Barnhart’s repeated hart the order. As Colston to went patrol unit was operating from the time knees, his pulled his baton. Once stopped his vehicle. The incident knees, Colston was on his Barnhart told Col- captured described above was videotape, ston feet, to remain still and cross his and part which is of the record. complied. Colston Colston asked “why y’all treating me like this?” Barnhart Colston filed a 1983 action replied that it was because Colston would not alia, alleging, inter that Barnhart violated tell him who he was. Colston then informed his Fourth rights by Amendment using ex- Barnhart that his name was Lorenzo Colston cessive force him. Barnhart moved and that he did have a driver’s license in his judgment on ground wallet. Colstоn then turned his head and qualified immunity. The district court de- looked at Barnhart. nied Barnhart’s motion for summary judg- Barnhart ordered to straight Colston look after concluding ment that material issues of ahead get and ground. got presented fact were precluded sum- fours, on all then lifted up.3 one leg mary judgment. Langford, who had walked over to Barn- earlier, hart’s side moments also ordered II. Colston to get ground. on the Colston told the officers he get would not ground A. began and up. to stand pushed Both officers attempt jurisdiction We prevent have appeals to hear from standing up. As this, doing were court orders denying summary hart Langford and repeatedly on the qualified basis ordered Col- ston get appeal down. when the Colston resisted is based on an their issue of law. Rocha, efforts and forced way 795, (5th Cantu v. his feet. Barn- 77 F.3d Cir. 1996). hart began striking baton, district court’s determination Langford grab tried to Colston. fact presented issues preclud were violently resisted and knocked ed Langford necessarily ground single with a deny jurisdiction hard blow. With us over appeal. this Cole down, struggled HISD, (5th con- man v. 528, 113 F.3d Cir. Colston; trol 1997). struck Barnhart in the We can determine as a matter of law face and knocked him to ground. The whether Barnhart is entitled to im blow broke Barnhart’s glasses and munity dazed after accepting all of Colston’s factual Although 2. Barnhart was pres- unaware of their 3. Colston states leg prepara- that he lifted his ence, shotgun and a knife later recovered tion to run. from Fields' сar. Cantu, 396, 1871-72; Id. question. 77 F.3d at S.Ct. true. See allegations as jur- Spann Rainey, interlocutory see also 987 F.2d have We therefore 802-3. (5th Fraire, Cir.1993); issue legal to determine isdiction conduct was whether Barnhart’s instructs that in deter- Forsyth, 472 Id. Mitchell v. reasonable. mining the reasonableness of Barnhart’s con- (1985); 86 L.Ed.2d duct, employ are “the we not to vision 20/20 Jones, 304, 115 Johnson v. Graham, hindsight,” 490 U.S. at (1995); Behrens v. 132 L.Ed.2d 238 we S.Ct. at and that must consider “the Pelletier, 299, 116 police fact that officers often are forced Livingston Nerren v. L.Ed.2d ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍773 split judgments—in make second circum- Cir.1996). Dep’t, 86 F.3d Police tense, uncertain, rapidly that are stances

evolving—about the amount of force that is *4 necessary particular in a at B. situation.” Id. 396-97, 109 S.Ct. at 1872. review de novo district court’s We summary judgment on turn order We now the issue whether Nerren, immunity. qualified objectively 86 it was reasonable for Barnhart to grounds force, deadly given totality at 471. use F.3d confronting him. circumstances immunity govern Qualified shields reasonable, it argues objectively that was performing discretionary func officials ment 1, under Tennesseе v. 471 U.S. 105 if their damage liability from civil ac tions 1694, (1985), 85 1 for him to S.Ct. in objectively reasonable tions deadly use force because a reasonable officer City clearly v. established law. Fraire in circumstances would have believed that his 1268, Cir.), Arlington, 957 F.2d 1273 posed bodily a harm Colston threat serious denied, 121 cert. S.Ct. Langford. or to himself or death Colston (1992). The of a L.Ed.2d 371 evaluation objectively maintains that it was reason two-step a claim involves able that for believe Harper County, inquiry. Harris dangеr posed a to either officer the time (5th Cir.1994). step is to first was Colston was shot because he unarmed plaintiff alleged has a whether the determine attempting and to flee. clearly constitution violation of a established weapon At time Barnhart fired his dispute right. Id. There is no Colston, tape remaining and the video burden; excessive has met this use of evidence establish subject apprehend implicates force had all of following: Colston not answered guarantee Amendment’s un Fourth honestly questions and he had Barnhart’s v. Gar reasonable seizures. See Tennessee Langford’s and disobeyed both Barnhart’s ner, 85 L.Ed.2d U.S. S.Ct. Colston, get ground. on the who orders to Connor, Graham Barnhart, had larger than violent- was much 1865, 104L.Ed.2d 443 at- ly forcefully the officers’ and resisted him. tempts gain control of step requires the court to The second and knocked quickly both officers whether Barnhart’s conduct was subdued determine clearly ground them the with some force. objectively existing under reasonable his was 600. In hart was dazed and vision blurred. Harper, law. F.3d at established him, Connor, weapon on Langford, had loaded Graham (1989), limp next Barn- 1865, 1871, lying and motionless 104 L.Ed.2d 443 his near offi- hart. was on feet explained the reason Court legs. cer’s Barnhart’s earlier inquiry in force case is outstretched ableness an excessive non-deadly one; with objective evaluating attempts to control Colston the officer’s con baton, force, including hitting him with a had the Fourth Amendment we must duct under weap- At the Barnhart drew his against the failed. time the amount of force used balance shot, Colston was clearly on fired the first for reference to need with in Langford standing between Barnhart and time of conduct in established law the position unjustifiably offi- to inflict serious harm on the been beaten Barnhart and deputy weapon. Langford, cers or without a When Barn- Jim who is white and a hit under hart fired the two shots that sheriff. Colston arrest. Col- only steps gun two did not have a nor a nor a club Colston hаd moved ston knife car, any patrol weapon person. his Nei- toward Barnhart’s nor other injured nor shotgun where his was located. ther Barnhart preceded the altercation which Although Colston asserts that he was at- flight, but Barnhart fired two nevertheless flee, way tempting to Barnhart had no seriously injured shots which Colston and know whether to flee or Colston intended permanent disability resulted his and dis- injury further or inflict death the officers. figurement. say We cannot that a officer reasonаble place Barnhart’s would not have believed facts, Notwithstanding Barnhart has these posed danger that Colston an immediate asked this to reverse bodily serious harm or death motion court’s denial result, Langford. As a Barnhart’s decision judgment adjudge qualifiedly im- objectively to use force was reason- mune actions were able. reasonable as matter of law. Because this appellate jurisdiction Court lacks to decide argues that Barnhart’s failure appeal, disagree I and because *5 discharged weapon to he warn before majority’s with the conclusion that objectively makes Barnhart’s conduct unrea shooting objectively hart’s of Colston was disagree. sonable. We In Tennessee v. Gar reasonable, I dissent. ner, the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Court held that an officer who determines force is neces Appellate I. Jurisdiction sary protect give to himself or others should warning a if it is 471 “feasible.” appeal from the denial district court’s 10, Barnhart, U.S. at 105 S.Ct. at 1700-01. summary judgment of be should dismissed lying nearby, on his back had to appellate jurisdic- because this Court lacks immediately In decide whether shoot. appeal ruling. tion over Barnhart’s from that totality of the fac circumstances Ordinarily, power only this Court has Barnhart, ing a give Barnhart’s failure § a review “final decision.” 28 warning objectively was not unreasonable. developed A “collateral order” doctrine has appeals of allow courts inter- consider III. locutory аppeals in certain circumstances. a Because reasonable officer in Barnhart’s Carp., Cohen v. See Indus. Loan Beneficial position could have believed that he 541, 1221, 337 U.S. 69 L.Ed. 93 1528 danger were in imminent of serious (1949). “To within the come ‘small class’ of Colston, bodily harm or at hand death the of excepted final-judgment decisions from the Barnhart was in reasonable Cohen, conclusively rule must order shooting Accordingly, Colston. the district disputed question, determine the resolve аn denying court’s order for motion important separate completely issue from the summary judgment grounds of action, effectively of merits and be unre- judgment is reversed ren- is appeal judgment.” viewable on a from final granting dered that motion. 463, Coopers Lybrand Livesay, & v. 437 U.S. 2454, 2458, 98 S.Ct. 57 351 L.Ed.2d REVERSED and RENDERED. (1978). DeMOSS, Judge, dissenting: Circuit The denial a quali- substantial claim of Appellant Bryan immunity may appealable who is white fied be before final policeman, and a state Appellee Forsyth, shot judgment. twice See Mitchell v. 472 U.S. black, 511, 525, 2806, 2814-15, Lorenzo who is the back. 105 S.Ct. 86 L.Ed.2d fired, At right appeal the time Barnhart’s shots were from such a not, however, fleeing summary Colston was a judgment scene where he had denial of is Thus, just as this case.” Jones, judgment in 515 U.S. In Johnson absolute. it” “we didn’t do officers’ of the Johnson (1995), case L.Ed.2d 115 S.Ct. defense, “the District Court’s in this case standard, noting its clarified Supreme Court determination issue of genuine a in this case raised record a defen- court’s order a district within a ‘final decision’ ... not fact [is] for motion dant’s Id.; see relevant statute.” meaning of the or- “collateral immediately appealable Rocha, also Cantu decision”) Cohen, (i.e., under a “final der” Cir.1996). public offi- (1) awas the defendant where Pelletier, 516 U.S. Behrens immu- “qualified asserting a defense cial (1996), not to is (2) appealed con- the issue nity,” and Mitch- reaffirms the contrary. Behrens might parties cernís], facts the im- denying qualified holding: “an order ell rather, but, whether prove, able be turns on an ‘issue it munity, to the extent violation a given facts showed not certain Behrens, law,’ immediately appealable.” is law. “clearly established” (citation at -, at 841 116 S.Ct. at 2155 Johnson, U.S. at Cantu, 77 at 803. omitted); F.3d also see Mitchell, (quoting Moreover, explicitly reiterated the Court plaintiffs 2816). involved Johnson holding, that: Johnson use of alleged arising claim evidentiary sufficiency at determinations Because by police officers. excessive force immediately summary judgment are diabetic, having an insulin plaintiff, they happen to mеrely appealable beating at the at the time seizure case; if what qualified-immunity arise specifi unable police, he was hands sufficiency in the determination is issue him. had beat the officers cally identify the evidence than whether nothing more is as defen named officers who were Three con- particular finding that support could point summary judgment, moved dants *6 occurred, decided is the question duct the as not identified ing out that claim, plaintiffs the “separable” from truly could officers other and that perpetrators un- “final decision” there is no and hence was The motion the offense. have committed and Mitchell. Cohen der at id. denied; appealed. See officers the at -, at 842 Behrens, 116 S.Ct. Affirming the 307-08, at 115 S.Ct. 2153-54. 312-15, 115 Johnson, at (citing the appeal, of the Circuit’s dismissal Seventh 2156-57). therefore Behrens at awas that there Supreme Court concluded pre case, unappealable is which control this there jurisdiction because appellate of lack of of issue an of the absence cisely because issue, rather question of law no was law. of question merely concerned appeal the Furthermore, appellate lacks our Court con of the officers’ sufficiency” “evidence the charac- dispute is not if the even jurisdiction do it.” Id. “we didn’t tention do it” Johnson-style “I didn’t as a terized present 2157-58. deter- record was of the state scenario. The by Johnson. is controlled case to be insuffiсient- by district court mined ease in this First, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍claims competing upon fact findings permit developed to ly didn’t do of the “I in reason- objective resemble Johnson an which evaluation defense. be of Barnhart’s could aspect actions it” Barnhart’s ableness of ap- as he ease, in the back lacks our Court that he shot claims such based. In contrast, scene; appeal in from deni- an escaped jurisdiction over pellate Naylor v. weapon in self- judgment. See summary that he fired hart claims Cir.1997); (5th Louisiana, its 857 court stated The district defense. O’Brien, 451- 127 F.3d motion Hart see also Barnhart’s grounds for (Benavides, J., dissenting); Cir.1997) (5th “The language: plain 54 judgment summary Marcos, 62 F.3d City San summary judgment Tamez has reviewed Court Cir.1995); Harris (5th Harper v. 124-25 of ma- that issues is convinced evidence Cir.1994). County, F.3d 601 summary preclude fact exist terial The district court this case declared that appeal This present does not sep- issue an issue of material fact exists which under arable from the claim, merits of Barnhart’s any mines summary determination at judg required as is by Coopers Lybrand, & Mitch- ment of ell, “whether Officer Barnhart had a and Johnson. The absence of an issue of reasonable danger belief of fleeing from the regarding law suspect which justify would the use of claim separable is from the ultimate force in self-defense.” The court therefore merits of Colston’s lawsuit removes this ease summary concluded that judgment inap from the category collateral-order of final proрriate because both Barnhart’s claim of deprives decisions and this Court of appellate qualified immunity and claim jurisdiction. under Furthermore, the issue of hinge on a determination of whether Barnhart used excessive force in objective reasonableness of Barnhart’s this case can be by reviewed this upon Connor, actions. See Graham v. appeal U.S. from a final judgment by the district 386, 394, 1865, 1870-71, court, and such later review will have the L.Ed.2d 443 Tennessee benefit of all of producеd the evidence at trial 1, 7-12, 1699-1702, jury’s and the resulting findings of fact. In That decision respects, two therefore —the absence of an based an evaluation of the facts in separate issue from the merits and the ulti- case; appeal this thus cognizable no contains reviewability mate of Barnhart’s defense on issue of law. appeal from final case fails to —this pass separability Cohen, test Coopers majority attempts to appel- establish Lybrand, & and Mitchell for intеrlocutory jurisdiction late by assuming away the dis- appeal. puted issues of material fact by found district court. Specifically, majority pur- II. Summary Judgment ports accept Colston’s factual allegations Assuming, arguendo, appellate juris- as true. It then turns to question diction does exist respect objective to Barnhart’s inquiry, reasonableness which our appeal, the district court’s denial Court has acknowledged question to be a judgment should be affirmed. may law that be decidеd judge in the any dispute absence of over material facts. The Fourth protection Amendment’s Cantu, See 77 F.3d at 802. But the majority against unreasonable person seizures of the goes astray, then drawing inferences ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in the has applied been in causes of action under 42 wrong direction and viewing the record *7 impose liability police on the most favorable to Barnhart. officers who use excessive against force citi- zens. The relevant inquiry objec- is one of In light of the distriсt court’s conclusion tive Mitchell, reasonableness. See 490 U.S. objective that the reasonableness of Barn- 109 S.Ct. at The 1872-73. majority’s hart’s actions could not be determined at conclusion that Barnhart’s shooting of Col- summary judgment because of the unsettled ston was objectively highly reasonable is du- of state the record —a solely conclusion based bious. the on district court’s evaluation of “evidence sufficiency” appellate has no jur- matter, As a again —our threshold I note that isdiction to that judgment. review Nay- See majority the does not accept all of Colston’s lor, 857; Tamez, F.3d at see also factual allegations true, as it purports as 124-25; Harper, 21 F.3d at Instead, 601. The do. majority opposite takes the resolution of disputed material facts is not to approach and allows numerous inferences in be by achieved a judge through summary Barnhart’s favor. example, For judgment. See Liberty Anderson v. Lobby, complaint frames his in terms of еxcessive Inc., 242, 249-50, force used in preventing attempted es- 2510-11, 91 L.Ed.2d 202 dispute A cape from abusive treatment. The majority, concerning material fact only however, can issues be a describes scene in which Colston resolved through resort to the finder of violently police, resisted the physically over- ease, fact —in this jury. a powered them, and then remained on the denied, times), cert. inju- inflict serious ready to scene, standing Jamieson using resorted not had ries Cir.1985) (high- Shaw, departs F.2d 1205 mаjority’s treatment firearm. chase). Barnhart’s Regardless, in- ordinary practice speed of car radically from he was summary judg- warning, give a failure to inferences factual dulging feasible, the use of if before obliged give, nonmovant. favor ment see deadly against force majority’s hostile view light of the In 1701-02, cuts 11-12, 105 S.Ct. at surprising not perhaps it is charge, judg summary finding against strongly that Barn- erroneously conclude that objective actions were that Barnhart’s ment A objectively reasonablе. hart’s conduct ly reasonable. opposite to the lead me of factors number conclusion. ^[*] ^[*] ^[*] assault First, that Colston’s significant it is are ruling that there The district court’s the use of never involved on the officers determining the disputed facts material use a never only Not did weapon. con- of Barnhart’s objective reasonableness Langford, but weapon of Col- appellate review preclude duct should any way. The them in not disarm did he immunity at this ston’s assertion at all times рower balance ultimate Furthermore, as- proceedings. stage of the initial- may have favor. the officers’ jurisdiction, have suming that we do fists, his bare officers ly overcome be af- court should of. police expect that much it is not too a viola- alleged has firmed unruly an to subdue prepared be officers jury’s rights, and tion of his constitutional to the use having to resort without detainee conduct Barnhart’s that determination firearm. of a supported by the be reasоnable could not injuries inflicted Second, nature of the judgment record. that a resort suggest not by conduct was Barnhart’s deciding In that objectively reasonable. deadly force was reasonable, majority stretches that either no indication bears record far be v. Garner holding of Tennessee at- medical Langford required It is notable progeny. yond that decision’s that is true It the incident. after tention a restric of Gamer was core result that the down, they may knocked both they were deadly tion, of the use expansion, dazed, and that Barn- temporarily been have To the officers. by law enforcement force But the effects were broken. glasses hart’s attempts to language Garner extent (against what reason- of Colston’s backlash use of the constitutional trace the boundaries unnecessary violence find was jury able could very diffi it is by police, officers) injuries initiated ac conclude cult indeed magnitude. life-threatening any sеrious or purview of Garner’s within the tions fall never assert- the officers Finally, because guidance. Colston, we authority to arrest their ed *8 stamp approval give this Court’s To in Barnhart’s indulge be hesitant should ignore the is to actions factors which recognition of the law’s favor relevant observation: poignantly Court’s using the reasonableness may support felony suspects die See, all better that It is not fleeing person. deadly force suspect escape. Where than at 1697 Garner, e.g., the officer threat no poses immediate halt”); Brothers (officer “police, called out others, resulting harm Cir.) (individu threat (5th no Klevenhagen, 28 F.3d apprehend failing to from during transport custody escaping from so. It to do use of justify the another), de cert. holding cell to one suspect when unfortunate doubt is no nied, fact that escapes, sight inis Arling City Fraire are little little late or Cir.) (officer police arrive yelled ton, killing always justify afoot does slower “Halt, police,” several “Stop, police,” suspect. police A may officer not seize unarmed, nondangerous suspect by shooting him dead. 471 U.S. at S.Ct. at 1701.

I respectfully dissent.

UNITED America, STATES of

Plaintiff-Appellee,

Miguel Enrique REYNA, Defendant-

Appellant.

No. 96 — 41212.

United States Court of Appeals,

Fifth Circuit.

Nov.