Case Information
United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 10, 2021 Lyle W. Cayce Clerk Janice Irene Creech Poole, Independent Administrator , on behalf of Brian Steven Poole Estate,
Plaintiff—Appellee , versus
City of Shreveport; Jon Briceno,
Defendants—Appellants . Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:18-CV-1125 Before Stewart, Costa, and Willett, Circuit Judges .
Gregg Costa, Circuit Judge :
In this excessive force case, the district court held that a jury could conclude that an officer shot a citizen four times without warning while the citizen was turning away and empty-handed. Because genuine disputes exist on those three material facts—whether the officer warned before shooting, whether the citizen had turned away from the officer, and whether the officer could see that the citizen was unarmed—the court denied a summary judgment motion invoking qualified immunity. The officer now brings this interlocutory appeal. We agree with the district court that there was a violation of clearly established law if the jury resolves the factual disputes in favor of the plaintiff.
I. In the wee hours of March 31, 2017, 911 operators in Shreveport receivеd a call from a woman who reported that a small silver truck had driven down her street several times. Shreveport City Police dispatched a patrol unit to her address. Corporal Jon Briceno also responded to the dispatch call.
While driving through the neighborhood, Briceno came across a small, light-colored truсk stopped at a stop sign, with Brian Poole in the driver’s seat. As Poole attempted to turn, Briceno activated his lights and sirens, intending to initiate a traffic stop. Instead of stopping, Poole straightened the car and drove into the parking lot of a nearby golf course, then back out onto the street. For the next fifteen minutes, Poоle drove slowly through the residential area, followed by Briceno and, eventually, six other police cars. During this low-speed pursuit, Poole disobeyed traffic signals, went through two yards, and drove on the wrong side of the road to avoid spike strips the police deployed. Poole later explained that he “was having issues with suicidаl thoughts” and drug use and had kept driving to avoid a parole violation, which would mean getting kicked out of his sober living home.
When Poole finally came to a stop, he hastily exited his vehicle and reached into the bed of his truck, retrieving nothing. As he did so, Briceno pulled up behind Poole and jumped out of his police car so quickly that he failed to put it in park. Another officer stopped behind Briceno.
The parties provide competing accounts of what happened next. Briceno claims that as he got out of his vehicle and drew his weapon, he commanded Poole to “show me your hands.” Briceno maintains he could not see Poole’s hands after Poole reached into the bed of the truck and thought Poole intended to harm him or other officers on the scene. But Poole testified that, in his suicidal state, he had reached into the truck bed to grab a soda so that he could take a whole bottle of prescription pills. Poole said that he ran out of time tо retrieve the drink and so he decided to get back into the truck and keep driving. He did not recall hearing any commands from Briceno.
The dashcams from two patrol cars captured this interaction and the moments that followed. [1] The footage shows that after Poole reached into the truck bed, his hands were empty. Poole paused for about a second with his right hand on the edge of the pickup’s bed and his left hand attempting to open the driver-side door. Then, as Poole managed to open the door, Briceno shuffled into a shooting stance and called out something too garbled to decipher.
As Poole turned his back to Briceno and began to lower himself into the driver’s seat, shots rang out. Briceno fired six times, striking Poole with four bullets in his back and thigh.
After the shooting, Poole was arrested and later pleaded guilty to Aggravated Flight from an Officer. See La. Stat. Ann. § 14:108.1©.
Poole then sued Briceno and the City of Shreveport for excessive force in state court. [2] After Pool clarified that he was bringing а federal Fourth Amendment claim in addition to state tort claims, the defendants removed the case to federal court. Ultimately, Poole brought: a section 1983 claim against Briceno for excessive force; state-law tort claims against Briceno; and federal and state claims against the City.
The defendants moved for summary judgment. Their motion
asserted various grounds for dismissal, including that Briceno was entitled to
qualified immunity and that
Heck v. Humphrey
,
The district court dismissed Poole’s federal claims against the City but determined that genuine issues of material fact prevented it from granting qualified immunity to Briceno. It further held that Heck did not preclude Poole’s claims because at the time of the shooting, Poole was not a driver refusing a police officer’s command to stop his vehicle—the offense to which he pleaded guilty. The court also denied summary judgment on Poole’s state-law claims against Briceno and the City.
The defendants now bring this interlocutory appeal, challenging the district court’s denial of qualified immunity and its Heck ruling.
II.
Qualified immunity shields officers from liability unless their conduct
violates a clearly established federal right of which a reasonable person would
have known.
Kisela v. Hughes
,
But there is an important limit on our interlocutory review—a limit
that this appeal largely turns on. With one exception discussed below, we
cannot question the district court’s assessment of “whether there is enough
evidence in the record for a jury to conclude that certain facts are true.”
Cole
v. Carson
,
The district court denied qualified immunity after finding three factual disputes a jury must resolve:
1. Whether Briceno warned Poole before firing; 2. Whether Poole was turned away from Briceno during the shooting; and
3. Whether Briceno could see that Poole’s hands were empty. Once it determined that a jury could find that Briceno shot Poole in the back, without warning and knowing his hands were empty, the district court readily concluded that suсh conduct would violate clearly established law.
Given the manifest unreasonableness of shooting an individual the
officer can see is unarmed and not aggressive, Briceno understandably tries
to push back on these findings. But his argument that the district court
should have accepted his account of the incident runs up against our inability
at this stage to review the existence of fact disputes. Briceno argues that the
angle of the dashcam video does not show his view of Poole, and thus
concludes that the district court had to accept his testimony that he did not
see Poole’s empty hands. He cites cases granting an immunity defense
because the court found no evidеnce to counter the officer’s testimony about
what he saw.
See Manis v. Lawson
, 585 F.3d 839, 844 (5th Cir. 2009);
Ontiveros v. City of Rosenberg
, 564 F.3d 379, 383 (5th Cir. 2009). Yet in
neither of those cases was our review restricted to focusing on the materiality
of factual disputes found by the district court as opposed to the existence of
those disputes.
Ontiveros
was an appeal from a final judgment granting
summary judgment to the officer
.
Here, the district court’s finding of factual disputes was far from conclusory. It specified thrеe fact disputes a jury would need to resolve. Our general inability to review the existence of fact disputes thus applies.
We did mention, however, an exception to this rule. On interlocutory review, a court may consider video recordings in determining whether a factual dispute exists. See Scott v. Harris , 550 U.S. 372, 380–81 (2007) (encouraging courts of appeals tо “view[] the facts in the light depicted by the videotape” and granting immunity defense when that video “blatantly contradicted” the plaintiff’s testimony); see also Curran v. Aleshire , 800 F.3d 656, 663–64 (5th Cir. 2015) (recognizing Scott as an exception to the usual prohibition on interlocutory review of the genuineness of factual disputes). But this exception hinders rather than helps Briceno’s appeal. The dashcam video shows that Poole was moving away from Briceno with his back turned when he was shot. It also shows that his hands were visible and empty before the shots were fired. Although Briceno argues that the video does not show the exact angle at which he was looking at Poole, it is close enough to Briceno’s vantage point—Briceno was less than ten feet away from Poole— to be probative of what he saw. Evidence need not be conclusive to be relevant. See Fed. R. Evid. 401(a) (explaining that evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence”). The district court did not hold that the video required a finding that Briсeno shot a man he could see was unarmed. It only held that a jury could draw that conclusion from the video. We agree. As a result, this is not a case of no evidence to counter the officer’s testimony. It is a case in which evidence the Supreme Court has recognized as especially compelling could be viewed as contradicting the officer’s testimony.
Our review of the video evidence thus confirms what the district court recognized: there is a factual dispute about whether Briceno gave a warning before shooting, whether Poole was turned away during the shooting, and whether it was apparent that Poole’s hands were empty.
That brings us to the issue we do have full authority to review on
interlocutory appeal—whether those fact disputes are material to the
excessive force question. All three issues are material. Even when a suspect
is armed, a warning must be given, when feasible, before the use of deadly
force.
Cole
, 935 F.3d at 453 (citing
Tennessee v. Garner
, 471 U.S. 1, 11–12
(1985)). Common sense, and the law, tells us that a suspect is less of a threat
when he is turning or moving away from the officer.
Roque v. Harvel
, 993
F.3d 325, 339 (5th Cir. 2021);
Hanks v. Rogers
,
It should go without saying that it is unreasonable for an officer to
“seize an unarmed, nondangerous suspect by shooting him dead.”
See
Garner
,
If a jury views the disputed facts in favor of the plaintiff—concluding that Briceno shot Poole, without warning, seeing that he was empty-handed and turning away from the officer—then Briceno violated Poole’s clearly established right to be free from unreasonable seizure.
III.
Qualified immunity is not the only defense Briceno pursues on appeal.
He also argues that
Heck v. Humphrey
bars Poole’s section 1983 claim because
of Poole’s conviction for Aggravated Flight from an Officer.
Our caselaw is inconsistent about whether we have jurisdiction to
address
Heck
issues on interlocutory appeal.
Sappington v. Bartee
held that a
district court’s “denial of a summary judgment is reviewable and subject to
reversal if the claim is barred under
Heck
.”
We agree with the district court that
Heck
is no barrier to Poole’s
claim. The law Poole violated criminalizes “the intentional refusal of a driver
to bring a vehicle to a stop” under circumstances that endanger human life.
La. Stat. Ann. § 14:108.1(C). At the time the shooting occurred, Poole
had already stopped driving and exited his truck. Poole’s excessive force
claim therefore is “temporally and conceptually distinct” from his flight
offense.
Bush v. Strain
,
* * *
Our interlocutory review is limited. For those issues we can review at this time, we AFFIRM the district court’s denial of summary judgment.
Notes
[1] A composite video featuring footage from both dashcams can be viewed at the following link: https://www.ca5.uscourts.gov/opinions/pub/21/21-30015.mp4.
[2] Poole died during the pendency of this case. His estate, which is now pursuing the case, is represented by his mother, Janet Creech Poole.
[3] There is no interlocutory jurisdiction to review the municipal liability ruling as it
does not turn on qualified immunity.
See Trent v. Wade
,
[4] This case is thus distinguishable from others reversing denials of qualified
immunity based on video evidence. Briceno draws our attention to a recent Sixth Circuit
decision.
See Cunningham v. Shelby Cnty.
,
[5] Briceno argues for the first time on appeal that regardless of whethеr he could see
Poole’s empty hands, qualified immunity is warranted because he acted reasonably to
prevent Poole from fleeing in his truck and endangering the public. This argument is likely
forfeited because it was not urged in the trial court.
See Martinez v. Pompeo
,
[6] These later decisions are consistent with the prevailing approach of other circuits.
See Limone v. Condon
,