Randy Cole v. Michael HunterRandy Cole v. Michael Hunter
We return to the October 25, 2010 shooting of Ryan Cole, at the time a seventeen-year-old high-school student in Sachse, Texas. Cole‘s parents, Karen and Randy, individually and as next friends of their son (collectively “the Coles“) brought suit against Officer Carl Carson, Lieutenant Martin Cassidy, and Officer Michael Hunter of the Sachse Police Department under
On October 25, 2010, at around 10:30 a.m., the Sachse Police Department called available units to the neighboring town of Garland, Texas. Police there were searching for Ryan Cole, a seventeen-year-old white male, last seen around Norfolk Drive armed with up to three weapons, including a nine-millimeter handgun.
Officer Michael Hunter responded by proceeding immediately to Norfolk Drive. In a statement given the day of the incident, Hunter described there encountering a young man who explained that Cole had given one of his guns to him, and that he had unsuccessfully tried to persuade Cole to surrender a handgun. In testimony given almost four years later in connection with this litigation, Hunter could recall in further detail that the young man was Eric Reed Jr., and that Reed described an altercation with Cole, which culminated in Cole threatening Reed with harm. Beyond the physical description relayed over the police radio, Hunter otherwise learned nothing “that would cause [him] to believe Cole was violent or wanted to hurt anyone.”4 Hunter searched the area, but heard over the radio that the suspect had been located in a nearby alleyway. Hunter went to the location. There he saw two officers following Cole, who was walking away from the officers holding his gun to his head, approaching railroad tracks in a wooded area along Highway 78. Hunter testified to his understanding that Cole was suicidal, and four years after the incident he also raised the possibility for the first time that Cole was using suicide as a pretext to evade the police. Hunter also testified four years later that he had heard police-radio transmissions indicating that officers were protecting nearby schools because of “Cole‘s dangerous conduct which posed a
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 testified that he learned from the conversation that “this subject had shown up at [a] residence with a handgun and had just recently been seen walking away.” Four years later, Cassidy testified that he had also learned much more: Cole was distraught from a recent separation from his girlfriend, also a student at Sachse High School; Cole had been involved in a domestic disturbance the previous night, and had brought a number of firearms to a friend‘s house, retaining possession of at least one and as many as three firearms. Cassidy had also learned that Cole “had threatened to shoot anyone who tried to take his gun,” and had refused an order to drop his weapon. Sachse High School was about two miles from the search area, and Cassidy became concerned about the possibility that Cole intended to target the school. Following the search from his car, Cassidy also decided to intercept Cole on Highway 78.
The three officers arrived at the side of Highway 78 around the same time. Hunter 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 the railroad tracks to the area along Highway 78. Cole 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
The Coles’ narrative of the roughly five seconds that followed relies on medical reports, ballistics analysis, and evidence collected on the scene and retrieved from Cole‘s body.5 Moments after Hunter signaled to his colleagues, Cole backed out of the brush. He was facing away from the officers, his right arm raised, holding the barrel of the handgun to his right temple. For three to five seconds the officers had an opportunity to yell out to Cole to freeze or drop his gun. But the officers perceived that Cole was unaware of their presence, and remained silent so as not to alert him.6 Cole began to turn counterclockwise. Around this time either Carson or Cassidy began to issue a command to Cole.7 Before the officer could warn Cole, however, Hunter fired, followed by Cassidy. Still holding the handgun to his temple, Cole pulled the trigger, firing into his head.
The officers offer alternative accounts. They agree with each other that moments after Hunter signaled to Carson and Cassidy, Cole backed out from the brush about 10 to 20 feet in front of Hunter. On the day of the incident, Hunter did not specify the position of Cole‘s hands as he emerged from the brush. Four years later, however, Hunter recalled that Cole‘s hands were
According to Carson, Hunter then gave Cole a command “about showing his hands or dropping his gun.” Cassidy also testified that Hunter issued a command. In his initial statement Cassidy testified that high winds prevented him from hearing Hunter‘s words. Four years later, however, Cassidy could recollect that Hunter had shouted “[D]rop it!” Hunter himself equivocated on whether he shouted to Cole. Initially, Hunter stated that he had no chance to issue a command. Three days later, Hunter could no longer recollect whether he had or had not yelled to Cole. In a deposition four years after the incident, Hunter did not disagree with his fellow officers’ recollection that he had issued a command.
Hunter and Cassidy testified that Cole turned and pointed his handgun at Hunter.8 Hunter fired four rounds at Cole. Cassidy fired three. None of the officers recalled Cole discharging his own gun.
Eyewitnesses offer additional accounts. One witness, William Mackey, standing in a parking lot across the highway, heard one of the officers yell for Cole “to come out.” Mackey recalled that when Cole emerged from the trees “roughly five officers” were on the scene, and more than one yelled for Cole to “drop his gun” before the shooting commenced. Mackey also remembered—in a second affidavit, sworn three years later—that Cole had “raise[d] his hand and point[ed] [an] object towards the officers.” Another witness, Trent
Of the officers’ shots, two hit Cole. One round fired by Hunter passed through Cole‘s left arm, into his torso, fracturing a rib, bruising his lung, and lodging in his back. A second round, also fired by Hunter, grazed his left arm. None of Cassidy‘s shots struck Cole. A third round entered three inches above Cole‘s ear from Cole‘s right, with fragments of the bullet exiting the top of his skull. The entry wound exhibited stippling, that is, discoloration of the skin caused by hot gases and residue released immediately around a discharging firearm. Ballistics analysis indicated that the trajectory of the third round was characteristic of a self-inflicted wound. When copper fragments were recovered from Cole‘s head, ballistics experts determined they had originated from Cole‘s handgun.
The Coles allege that while Cole was unconscious, bleeding “profusely” and “presumably . . . to death,” the officers did nothing to help him. When paramedics arrived, Cole experienced cardiac arrest, but was resuscitated. He was then immediately taken to Baylor Hospital in Garland, where he was stabilized. Cole remained hospitalized, recovering from his injuries for months. He survived the shooting, but continues to suffer from serious mental and physical disabilities arising from his injuries.
Following the shooting, the three officers remained together at the scene, but never offered Cole assistance. The Coles allege that during this time the
The Coles brought suit against Carson, Cassidy, and Hunter in the Eastern District of Texas.11 The officers successfully transferred the case to the Northern District of Texas. The Coles’ amended complaint brings three claims relevant here. First, the Coles bring a Section 1983 claim against Cassidy and Hunter, alleging a violation of Cole‘s Fourth Amendment right against the use of excessive force. Second, they bring a Section 1983 claim against all three
The officers moved to dismiss these claims, asserting absolute and qualified immunity defenses. In a January 24, 2014 Memorandum Opinion and Order, the district court denied the officers’ motion. Carson alone appealed the denial of the motion in connection with the Coles’ Fourth and Fourteenth Amendment claims. The district court stayed the fabrication of evidence claim as to Cassidy and Hunter pending Carson‘s appeal. The district court allowed limited discovery focused on Cassidy and Hunter‘s qualified immunity defenses to the Fourth Amendment excessive force claim. Those two officers moved for summary judgment on the Fourth Amendment excessive force claim, again asserting qualified immunity. The district court denied the motion and Cassidy and Hunter appealed.
We consolidated Cassidy and Hunter‘s appeal of the denial of summary judgment with Carson‘s appeal of the denial of the motion to dismiss. On September 25, 2015, we affirmed the district court‘s denial of summary judgment based on qualified immunity with respect to the Coles’ Fourth Amendment excessive force claim against Cassidy and Hunter, and affirmed the district court‘s denial of the motion to dismiss with respect to the Coles’ Fourteenth Amendment due process claim against Carson. With respect to the denial of Carson‘s motion to dismiss the Fourth Amendment fabrication of evidence claim, we reversed.
The officers filed a motion for rehearing and en banc review in this court, which we denied. They then petitioned the Supreme Court for a writ of
II
The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”13 “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”14 Qualified immunity involves not only immunity from liability, but also immunity from suit.15 The qualified immunity inquiry includes two parts. In the first we ask whether the officer‘s conduct has violated a federal right; in the second we ask whether the right in question was “clearly established” at the time of the violation, such that the officer was on notice of the unlawfulness of his or her conduct.16 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.17
We will not revisit the first part of the qualified immunity inquiry in connection with any of the Coles’ claims, nor the question of clearly established law as regards the Coles’ Fourteenth Amendment claim against Carson. We hear this case on remand from the Court for further consideration in light of Mullenix.22 In Mullenix, the Court reversed a decision of this court in which we had found that a police officer violated clearly established law by shooting a fugitive during a car chase. In its decision the Mullenix Court addressed only the second part of the qualified-immunity inquiry: whether the officer‘s alleged conduct violated clearly established law.23 The Court‘s mandate here reaches only this second part of the qualified immunity inquiry in connection with the
Turning to that denial, we note that the district court did not weigh the evidence and resolve the factual disputes over the shooting of October 25, 2010, properly so.25 Rather it asked only whether a jury should “resolve the parties’ differing versions of the truth at trial.”26 The district court determined that genuine disputes of fact remained, that these disputes were material,27 and should be resolved by a jury.
Our inquiry is more circumscribed. “An order denying a motion for summary judgment is generally not a final decision within the meaning of
The facts as we take them establish that Cole posed no threat to the officers or anyone else at the time Cassidy and Hunter shot him. The officers’ limited knowledge of Cole created no reasonable expectation of an immediate violent confrontation: Cole was a high school student distraught over a recent breakup; he had carried his guns to a friend‘s house; the friend was unable to persuade Cole to part with the handgun, and Cole warned him not to try to take it. Both officers knew that Cole had walked away from two police officers without violent confrontation. At no point did Cassidy or Hunter hear orders to establish a perimeter around Cole, to conceal themselves, or to take cover, nor were there calls for backup from SWAT teams or tactical units to handle the situation. While Cole possessed a handgun, he did nothing to threaten the officers. The officers understood that Cole was unaware of their presence, and
The only question we answer is whether, given these facts, Cassidy and Hunter violated clearly established law. Here, we have the guidance the Court provided 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.”36 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.37 Precedents provided a “hazy legal backdrop,” at best.38 Given these deficient sources, an officer could not reasonably derive an applicable rule to govern his or her conduct in the situation.39 Finding that we had defined the applicable
It is significant that the Court‘s focus in Mullenix was upon generality. In some conceptual sense, a legal rule is necessarily general: it applies not only to the case in which it is articulated, but to all like cases. The Mullenix Court does not repudiate generality in this sense. Rather it repudiates a second variety of generality, one that does not reach all legal rules: generality as indeterminacy.42 A rule that is general in that it is indeterminate cannot be “clearly established,” because a reasonable officer attempting to interpret and apply that rule in particularized circumstances will face legal uncertainty. The officer cannot be on notice of the proper course of action. In this scenario, Mullenix tells us that the qualified immunity doctrine insulates the officer from liability.43 On the other hand, a reasonable officer is capable of reasoning analogically from a determinate and categorical rule to conclude that given conduct is prohibited.44 Such rules, once articulated, are clearly established law.
By October 25, 2010 the no-threat rule had been clearly established for twenty-five years, and had been applied many times in this circuit. For example, in an unpublished 2008 decision, Graves v. Zachary, this court denied an officer qualified immunity for shooting a suspect who posed no threat to the officers or others.48 We stated that where a suspect posed no threat, “the violation of his constitutional rights would have been obvious even without a body of relevant case law . . . . Under general precedents such as Garner, [the
Cassidy and Hunter paint with too broad a brush when they argue that the Supreme Court‘s holdings preclude finding clearly established law in Garner. The officers fail to distinguish between the application of Garner‘s “sufficiency of threat” balancing inquiry and the bright-line no-threat rule also articulated in that case. Unquestionably, where facts establish that officers reasonably perceived some threat, Garner requires a balancing analysis to gauge the “sufficiency” of the threat relative to the use of force. Mullenix, and several other decisions of the Court, conclude that this balancing exercise standing alone is too indeterminate to present as clearly established law.52 Rather, in these situations, “[p]recedent involving similar facts can help move a case beyond the otherwise hazy border between excessive and acceptable
There is, however, a threshold inquiry as to whether the facts sustain finding any reasonably perceived threat at all. In situations where they do not, the Court has not repudiated application of Garner. On the contrary, it has repeatedly explained that, in what it calls “obvious case[s],” Garner provides clearly established law.54 This court has held similarly. In Mason v. Lafayette City-Parish Consolidated Government, a police officer fired upon a suspect while responding to a purported armed robbery.55 The officer fired seven shots, the final two of which hit the suspect in the back while he lay incapacitated by previous shots.56 When the officer invoked qualified immunity in response to a Section 1983 excessive force claim, we reversed the district court‘s grant of summary judgment on the basis of the defense.57 Addressing clearly established law, we held that Garner provided the relevant “command that deadly force is unconstitutional when ‘a suspect poses no immediate threat to the officer and no threat to others.‘”58 Similarly, we applied the no-threat rule
We note in passing that, in dictum to an unpublished opinion last year, Hatcher v. Bement, this court characterized the Garner no-threat rule as a “general test,”62 and reasoned that, under Mullenix, we “could not rely on th[e] general test detached from factual application.”63 Rather, we wrote, “this general test must be tethered to precedent containing facts analogous or near-analogous to the facts in the case under consideration . . . .”64 Hatcher‘s characterization of the no-threat rule as a “general” test is ambiguous given the term‘s multiple senses, as we explained. To the extent this dictum65 from Hatcher suggests that we must identify a precedent mediating the application
Cassidy and Hunter argue that, as of October 25, 2010, the precedential waters were muddied by several decisions of this court. These decisions were premised on findings that officers reasonably perceived a threat in situations similar to Cassidy and Hunter‘s encounter with Cole. Under Mullenix, a rule of clearly established law must be specifically applicable to the facts before the court,67 and applicable law can arise from precedents.68 The Court cautions, however, against reasoning analogically from cases meaningfully distinct on the facts.69 We heed that warning. Whether Cassidy and Hunter reasonably perceived a threat when they fired upon Cole is a factual question. It is one that the district court found genuinely disputed. Our inquiry takes the facts in a light most favorable to the Coles, and in that light a factual premise of our analysis is that there was no reasonably perceived threat. The cases to which Cassidy and Hunter direct us are inapposite, because they are all premised on factual findings of a threat.70 We cannot and will not revise the district court‘s identification of genuine fact disputes.
Cassidy and Hunter are not entitled to qualified immunity at this point in the case.
III
Immunity from trial is an important component of qualified immunity, but denial at this stage does not necessarily deprive the officers of the immunity defense as to liability. We decide only that it will be for a jury to resolve what happened on October 25, 2010, and whether Cassidy and Hunter are or are not entitled to the defense. For our purposes, the district court determined there was a genuine factual dispute. We hold this dispute is material. We AFFIRM the denial of Cassidy and Hunter‘s motion for summary judgment, otherwise REINSTATE our previous opinion in this case, and REMAND for further proceedings consistent with this opinion.