Juаn MENDEZ, Sr., Individually and as Representative of the Estate of Juan Mendez, Jr., Deceased; Sonia Sanchez Hernandez; Christina Pena Rodriguez, Individually and as Next Friend of J.M. and C.M., Minors, Plaintiffs-Appellants v. Taylor POITEVENT; United States of America, Defendants-Appellees.
No. 15-50790
United States Court of Appeals, Fifth Circuit
May 19, 2016
821 F.3d 324
Despite the prescience of Justice Holmes‘s dissent, the Hyde rule is longstanding and there have been no indications it will be reconsidered. Judges’ decisions are not, however, the only source for expressing important prinсiples of our criminal justice system. Prosecutorial discretion also plays a part as demonstrated by another area of law in which the courts have read a constitutional right narrowly. Although the Supreme Court has interpreted the Double Jeopardy Clause to allow different sovereigns to prosecute the same conduct,4 the Department of Justice‘s Petite Policy substantially constrains federal prosecutors’ ability to do so. See UNITED STATES ATTORNEY‘S MANUAL § 9-2.031 (requiring approval from an Assistant Attorney General to pursue a federal prosecution after a prior state рrosecution for the same conduct and listing various factors that should be considered in determining whether the presumption against such prosecutions has been overcome). Something similar would help ensure that conspiracy cases are being prosecuted in communities that have a meaningful connection to the case.
Zachary Carl Richter, Asst. U.S. Atty. (argued), U.S. Attorney‘s Office, Austin, TX, James Francis Gilligan, Jr., Esq., Asst. U.S. Atty., U.S. Attorney‘s Office, San Antonio, TX, for Defendants-Appellees.
Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
During an attempted arrest and the ensuing violent struggle, Juan Mendez, Jr., was shot to death by a Border Patrol Agent, Taylor Poitevent. Mendez‘s relatives sued Poitevent for, among other things, excessive force in violation of the Fourth Amendment. As relevant here, they also asserted various intentional tort claims against the United States. The district court held that Poitevent was entitled to qualified immunity, and thus granted him summary judgment. The district court also granted summary judgment for the United States on plaintiffs’ intentional tort claims. Plaintiffs appealed, and for the reasons below, we AFFIRM.
I.
On October 5, 2010, Border Patrol Agent Taylor Poitevent, uniformed and on-duty in Eagle Pass, Texas, heard a report over his service radio of potential alien or narcotics traffic near the Mexican border. The report described several individuals returning across the Rio Grande and several others in a white, single-cab pickup truck speeding in the opposite direction. Knowing the area described in the report to be an area commonly used by smugglers, Poitevent drove his marked vehicle to a location where he could intercept the truck, and parked. A white, singlе-cab pickup truck accelerated past his marked vehicle—an action that Poitevent interpreted as an attempt to flee. He pursued the truck into a residential cul-de-sac, where the truck‘s two passengers bailed out and began to run towards a fence.1 In response, Poitevent bailed out as well and chased them on foot, shouting for them to get on the ground. On the opposite side of the fence, not far, was the Rio Grande. One of the passengers was able to climb the fence and escape; the other was Juan Mendez, Jr., an 18-year-old U.S. сitizen whom Poitevent caught up with at the fence. Mendez resisted, and a struggle ensued.
Poitevent attempted to subdue Mendez by striking Mendez‘s thigh with his baton, but Mendez—later revealed to be high on cocaine and marijuana—continued to resist and to shove and hit Poitevent. Mendez also prevented Poitevent from radioing for help by pulling Poitevent‘s radio away from his mouth each time he attempted to use it. At some point during the struggle, Poitevent noticed that the holster guard on his service pistol had come undone, and he later testified that he “believed that Mendez was attempting to grаb [his] pistol.”
Eventually, Mendez disarmed Poitevent of his baton. But Poitevent nevertheless brought Mendez to the ground, face-down, and struck him several more times while attempting to handcuff him. Mendez, however, managed to stand up with Poitevent on his back, so Poitevent put him in a chokehold.
Mendez slipped out of that hold and, as he did so, turned and struck Poitevent in the temple. Poitevent buckled, and later testified that he “saw black, felt weak, and fearеd that [he] was losing consciousness.” (Later that day, Poitevent was diagnosed with a concussion and related symptoms.) He also testified that “[d]ue to Mendez‘s size advantage, strength, and aggression, as well as my exhaustion from the struggle, I feared losing consciousness and for my life,” and that he “perceived Mendez as a threat” who “would not pass on the opportunity to kill me if I were unconscious.” He reached out to grab Mendez by the belt, but again Mendez wriggled free. As Mendez was running towards the fence, Poitevent drew his service pistol and fired two shots, killing Mendez. According to Poitevent, he “stopped firing when [he] saw Mendez‘s silhouette go down.” At the time Mendez was shot, he had run about 15 feet away from Poitevent, and both shots hit him.2
The Texas Rangers investigated the shooting and concluded that Poitevent “was clearly within his right to protect himself and others.” Federal and state authorities both declined to prosecute Poitevent.
Mendez‘s relatives sued Poitevent3 under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) for excessive force in violation of the Fourth Amendment and for violating Mendez‘s Fifth Amendment rights. Mendez‘s relatives also sued the United States under the Federal Tort Claims Act, alleging both intentional tort claims and negligence claims. The two suits were eventually consolidated.
Poitevent and the United States each moved for summary judgment. The district court granted Poitevent‘s motion, concluding that he was entitled to qualified immunity on plaintiffs’ Fourth and Fifth Amendment claims. The district court also granted the United States summary judgment on plaintiffs’ intentional tort claims, but it denied the United States’ related motion to dismiss plaintiffs’ negligence claims. Plaintiffs later agreed to dismiss their negligence claims.
Plaintiffs appealed. They argue that the district court erred by granting Poitevent qualified immunity on their Fourth Amendment claim4; by granting the United States summary judgment on their in-
II.
We review de novo a district court‘s grant of summary judgment. See Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). We review a district court‘s order denying a request for discovery for abuse of discretion. See Davila v. United States, 713 F.3d 248, 263-64 (5th Cir. 2013).
III.
We first address plaintiffs’ Fourth Amendment excessive force claim. Plaintiffs argue that the district court should not have granted Poitevent qualified immunity, and thus summary judgment, on that claim.
Law enforcement officers are entitled to qualified immunity for conduct that “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Mullenix v. Luna, — U.S. —, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (internal quotation marks omitted). “Put simply, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.” Id. (internal quotation marks omitted). Courts must determine “whether a constitutional right was violated and whether the allegedly violated right was ‘clearly established.‘” Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015). “At summary judgment, it is the plaintiff‘s burden to rebut a claim of qualified immunity once the defendant has properly raised it in good faith.” Cole v. Carson, 802 F.3d 752, 757 (5th Cir. 2015). “This is a demanding standard.” Vincent, 805 F.3d at 547.
“An officer‘s use of deadly force is not excessive, and thus no constitutional violation occurs, when the officer reasonably believes that the suspect poses a threat оf serious harm to the officer or to others.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009). This is an objective standard: The question is not whether the officer actually believed that the suspect posed a threat of serious harm but whether a “competent officer could have believed” as much. City & Cty. of San Francisco v. Sheehan, — U.S. —, 135 S.Ct. 1765, 191 L.Ed.2d 856 (2015); see also Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (explaining objective nature of inquiry). Courts do not analyze a use of force “with the 20/20 vision of hindsight,” but rather “from the perspective of a reasonable officer on the scene.” Plumhoff v. Rickard, — U.S. —, 134 S.Ct. 2012, 2020, 188 L.Ed.2d 1056 (2014). The Supreme Court has cautioned judges against “second-guessing a police officer‘s assessment, made on the scene, of thе danger presented by a particular situation.” Ryburn v. Huff, — U.S. —, 132 S.Ct. 987, 991-92, 181 L.Ed.2d 966 (2012). That is because “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.” Plumhoff, 134 S.Ct. at 2020 (quoting Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). In determining the objective reasonableness of a use of force, courts consider “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or at-
In light of the undisputed facts, a reasonable officer in Poitevent‘s situation could have believed that Mendez posed a serious threat of harm. In the moments leading up to the shooting, Mendez had struggled violently and aggressively against Poitevent. During that altercation, Mendez proved to be a dangerous opponent. Poitevent‘s initial attempts to subdue Mendez, including repeatedly striking Mendez with his baton, failed. Mendez then disarmed Poitevent оf his baton and prevented him from calling for backup by repeatedly pulling away his radio. The strap on Poitevent‘s pistol holster came undone, leading him to believe that Mendez was attempting to grab the pistol. Mendez was physically strong enough to stand up with Poitevent on his back and to escape his grasp several times. Then, just before Poitevent shot Mendez, Mendez struck Poitevent in the temple, hard enough to concuss him. In that moment, it was reasonable for Poitevent—concussed, disoriented, weakened, suffering a partial loss of vision, and fearing that he might lose consciousness in the presence of a violent suspected felon—to believe that Mendez might attempt to take advantage of his weakened or unconscious state to overpower and seriously injure or kill him. Mendez, an aggressive opponent who had proven his dangerousness, might—as Poitevent feared—have located the baton or another weapon, grabbed Poitevent‘s unsecured gun, or simply attacked Poitevent in an effort to secure his own escape or to conclude the fight. Poitevent also testified that at the time he shot Mendez, he sаw only “Mendez‘s silhouette,” even though Mendez was a mere 15 feet away, which is consistent with his testimony that after Mendez struck him, he “saw black ... and feared that [he] was losing consciousness.” Poitevent‘s disorientation may have prevented him from discerning whether Mendez was fleeing, regrouping, going for the baton, or even whether Mendez was in fact running away from him.6 Considering all of the circumstances, we hold that Poitevent‘s use of deadly force was objectively reasonable.7
Plaintiffs attempt to distinguish Colston, arguing that “it was clear that the plaintiff [in Colston] was physically larger than the officer, that he knocked two officers down, that the plaintiff was standing between the two officers who were on the ground, that the plaintiff was in a position to injure the officers, and the officer who discharged his weapon reasonably believed that the suspect was going toward the patrol car where the officer knew there was a shotgun.” Yet those are slight distinctions: Here, Mendez was similarly in a position tо injure or kill the disoriented and visually impaired Poitevent, who feared that he was losing consciousness. And a reasonable officer in Poitevent‘s position would reasonably believe that Mendez, even if Poitevent could discern that Mendez was moving away, posed a threat, either by coming back at Poitevent or seeking another weapon—such as the baton.
Plaintiffs also argue that the only relevant facts for our consideration are that, at the time of the shooting, Mendez had broken free, was running away from Poitevent, and had covered 15 feet. But we must consider аll of the circumstances leading up to that moment, because they inform the reasonableness of Poitevent‘s decisionmaking. Bazan v. Hidalgo Cty., 246 F.3d 481, 493 (5th Cir. 2001); see Manis, 585 F.3d at 843 (noting that officer‘s conduct “must be judged in light of the circumstances confronting him“). In other words, the question here is not, as plaintiffs assert, whether an officer violates the Fourth Amendment by shooting a suspect who is running away. Rather, it is whether an officer violates the Fourth Amendment by shooting a suspect who just fought the officer at length; disarmed him of his baton; prevented him from using his radio to call for backup; potentially attempted to obtain his gun; concussed and disoriented him; and broke free of his grasp; at the precise moment the officer‘s vision is impaired and he fears losing consciousness—and the evidence indicates that it was not apparent to Poitevent that Mendez was running away. In our view, using deadly force in such circumstances does not violate the Fourth Amendment.
Next, plaintiffs argue that the district court should not have credited Poitevent‘s statement that he feared he was losing consciousness and that it should not have concluded that Poitevent suffered a concussion. But the only evidence in the summary judgment record was that he did fear that he was losing consciousness and that he did suffer a concussion. Plaintiffs did not submit any evidence to the contrary,
Plaintiffs additionally contend that the district court should not have relied on the fact that Poitevent suspected Mendez of committing a “serious drug trafficking offense,” arguing that Poitevent did not know whether the offense was serious or that it related to drugs, not aliens. Although plaintiffs are correct that Poitevent never stated as much, whether the district court relied on that purported fact or not is immaterial. Our review is de novo and, even without relying on Poitevent‘s purported suspicions, his actions were objectively reasonable, as discussed. And in any event, Poitevent suspected—based on the radio report and his knowledge that the area was often used by smugglers—either narcotics or alien trafficking.
In sum, we hold that Poitevent did not use excessive force because a reasonable officer in his situation could have believed that Mendez posed a threat of serious harm, justifying the use of deadly force. Thus, we affirm the district court‘s grant of qualified immunity.
IV.
We next turn to plaintiffs’ argument that the district court erred in granting summary judgment for the United States on their intentional tort claims under the Federal Tort Claims Act. The FTCA provides a limited waiver of sovereign immunity for certain tort claims against the United States. In re Supreme Beef Processors, Inc., 468 F.3d 248, 251-52 (5th Cir. 2006) (en banc). On those claims, the United Statеs is liable “in the same manner and to the same extent as a private individual under like circumstances.”
The district court held that the United States was not liable on plaintiffs’ intentional tort claims because Poitevent‘s use of force was privileged. Plaintiffs contend that the United States cannot invoke the civil privilege defense and, even if it could, that genuine disputes of material fact remain on whether Poitevent‘s conduct meets the requirements of the civil privilege defense. We address each argument in turn.
a.
Plaintiffs assert two arguments as to why the United States cannot invoke the civil privilege defense here. Each fails.
First, plaintiffs point out that under the FTCA, the United States must be treated as a private person notwithstanding the “uniquely governmental functions” performed by its employees, Indian Towing Co. v. United States, 350 U.S. 61, 64, 76 S.Ct. 122, 100 L.Ed. 48 (1955), and that as a result courts must look to “the state-law liability of private entities, not tо that of public entities,” United States v. Olson, 546 U.S. 43, 46, 126 S.Ct. 510, 163 L.Ed.2d
Yet—as plaintiffs concede—this court confronted and rejected this precise argument in Villafranca, 587 F.3d at 262-64. There, this court held that the United States “can invoke [Texas‘s civil privilege defense] for its law enforcement officers.” Id. at 264; see also Davila v. United States, 713 F.3d 248, 261-62 (5th Cir. 2013) (same). The court distinguished privileges from immunities and noted that “an individual, acting under color of state law, ... could invoke the § 9.51 privilege to avoid personal liability under Texas law.” Villafranca, 587 F.3d at 264.
We are bound by the Villafranca and Davila panels’ holdings under the rule of orderliness. United States v. Alcantar, 733 F.3d 143, 145-46 (5th Cir. 2013) (explaining rule of orderliness). There has been no intervening change in the law—let alone an “unequivocal” оne—that would permit us to decline to follow those holdings. Id. We thus reject plaintiffs’ argument that the United States may not invoke Texas‘s civil privilege defense.
Second, plaintiffs argue that federal Border Patrol Agents, like Poitevent, are not “peace officers” under Texas law and thus that section 9.51 does not apply. Section 9.51(c) privileges the use of deadly force by “peace officers,” and another section of the Texas Penal Code,
This argument, too, is expressly foreclosed by Villafranca and Davila. In Davila, this court held that “[f]ederal officers are peace officers for the purpose of the Texas сriminal assault statute and its civil privilege defense.” Davila, 713 F.3d at 261; see Villafranca, 587 F.3d at 264 (similar). Indeed, in Davila, the court held that National Park Service Rangers were entitled to assert the civil privilege defense, even though Article 2.122(d) of the Texas Code of Criminal Procedure similarly provides that a National Park Service officer “is not a peace officer under the laws of this state.” See Davila, 713 F.3d at 261-62.
Citing De La Paz v. Coy, 786 F.3d 367 (5th Cir. 2015), plaintiffs counter that we are not bound under the rule of orderliness by Villafranca or Davila because the court purportedly did not consider, in either case, plaintiffs’ specific arguments. But plaintiffs are incorrect. De La Paz does not stand for the proposition that the rule of orderliness may be skirted where a party dreams up new arguments that were not presented to a prior panel. Instead, there, this court simply rejected an assertion that it was bound by certain prior
b.
Next, plaintiffs arguе that even if the United States may assert the civil privilege defense here, genuine disputes of material fact exist as to whether Poitevent‘s conduct was privileged. In particular, plaintiffs dispute whether Poitevent “reasonably believe[d] that there [wa]s a substantial risk that [Mendez] w[ould] cause death or serious bodily injury to [him] or another if the arrest [wa]s delayed,” and thus that Poitevent “reasonably believe[d] th[at] deadly force [wa]s immediately necessary to make an arrest.”
In light of the foregoing, we affirm the district court‘s grant of summary judgment for the United States on plaintiffs’ intentional tort claims.
V.
Plaintiffs also contend that the district cоurt abused its discretion in ruling on defendants’ motions for summary judgment before discovery, implicitly denying plaintiffs’ request for a continuance to conduct discovery. Plaintiffs bore a heavy burden below because they sought discovery “to disprove the applicability of an immunity-derived bar to suit because immunity is intended to shield the defendant from the burdens of defending the suit, including the burdens of discovery.” Freeman v. United States, 556 F.3d 326, 342 (5th Cir. 2009). Courts are authorized under Rule 56(d) to defer ruling on a summary judgment motion and allow discovery, but “Rule 56 does not require that any discovery take place before summary judgment can be granted.” Baker v. Am. Airlines, Inc., 430 F.3d 750, 756 (5th Cir. 2005) (quoting Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990)). And under Rule 56(d), deferring summary judgment and ordering discovery is appropriate only if the “nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” Fed.R.Civ.P. 56(d). A party “may not simply rely on vague assertions that additional discovery will produce needed, but unspecified, facts.” Am. Family Life Assurance Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir. 2013).
Plaintiffs’ affidavit here fell short. Plaintiffs’ counsel alleged that they had no opportunity to depose Poitevent and the witnesses to the shooting. In support of the motion, counsel asserted that “[t]he testimony of these witnesses and others bear[s] upon the acts and omissions of Taylor Poitevent, and the reasonableness of his conduct in shooting Juan Mendez,
We thus hold that the district court did not abuse its discretion in implicitly denying plaintiffs’ motion for a continuance to conduct discovery.
VI.
For the foregoing reasons, we AFFIRM the district court‘s orders granting Poitevent and the United States summary judgment.