Randy Cole v. Michael HunterRandy Cole v. Michael Hunter
PATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART, Chief Judge, and JAMES L. DENNIS, EDITH BROWN CLEMENT, JENNIFER WALKER ELROD, LESLIE H. SOUTHWICK, CATHARINA HAYNES, JAMES E. GRAVES, STEPHEN A. HIGGINSON, GREGG COSTA, and KURT D. ENGELHARDT, Circuit Judges:1
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
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
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,
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
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
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
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.
The Coles brought, inter alia, four
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’
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
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
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
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
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
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
The district court granted Putnal qualified immunity, crediting his account
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
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
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
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
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
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.
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.
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
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).
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.
B. Prior panel reasoning
The district court denied qualified immunity to Hunter and Cassidy for the shooting2 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
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
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
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
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
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
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).
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.
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.
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
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
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
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
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.
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
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 relevant13, Fifth Circuit law does not support denying qualified immunity to Officers Hunter and Cassidy. The district court
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
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
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
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.
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 weapons and ammunition.
- Red flag: a police visit the night before to the suspect‘s house because of a disturbance with his parents.
Red flag: a suspect with a dangerous knife at his parents’ house. - Red flag: a suspect who had a wild look in his eye and was smoking K2.
- Red flag: a suspect, distraught over breaking up with his girlfriend, moving toward the school where she was a student.
- Red flag: a suspect near an elementary school.
- Red flag: a suspect with personal issues including drug abuse.
- Red flag: a suspect seen running through the woods with at least three weapons.
- Red flag: a suspect irate and distraught.
- Red flag: a suspect who said he would shoot anyone who came near him.
- Red flag: a suspect armed with at least one handgun and possibly three.
- Red flag: a suspect who had refused police demands to drop his weapon.
- Red flag: a suspect who deposited a cache of weapons and ammunition at a friend‘s house after arguing with his parents.
- Red flag: a suspect who yelled obscenities at an officer.
- Red flag: a suspect who had threatened to kill his girlfriend and himself.
- Red flag: a suspect whom the district court described as troubled.
- Red flag: a suspect described in his complaint as suffering from obsessive compulsive disorder, treated with medications from numerous medical professionals, and having poor judgment and impaired impulse control.
* * * * *
Normally we expect police officers to recognize such red flags and to respond appropriately. Instead of protecting these officers from obvious danger to themselves and the public, however, the en banc majority orders them
The law of qualified immunity was poignantly summarized in 2019 by a dissenting judge who is now in the majority. Today‘s en banc ruling turns those words to dust.3
I respectfully dissent.
I repeat what I said last month: The entrenched, judge-invented qualified immunity regime ought not be immune from thoughtful reappraisal.1
Qualified immunity strikes an uneasy, cost-benefit balance between two competing deterrence concerns: “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.”2 By insulating incaution, the doctrine formalizes a rights-remedies gap through which untold constitutional violations slip unchecked. The real-world functioning of modern immunity practice—essentially “heads government wins, tails plaintiff loses“—leaves many victims violated but not vindicated. More to the point, the “clearly established law” prong, which is outcome-determinative in most cases, makes qualified immunity sometimes seem like unqualified impunity: “letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”3
That said, as a middle-management circuit judge, I take direction from the Supreme Court. And the Court‘s direction on qualified immunity is increasingly unsubtle. We must respect the Court‘s exacting instructions—even as it is proper, in my judgment, to respectfully voice unease with them.4
Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”5 While this bar is not insurmountable, it is sky-high. And it is raised higher when courts leapfrog prong one (deciding whether the challenged behavior violates the Constitution) to reach simpler prong two: no factually analogous precedent. Merely proving unconstitutional misconduct isn‘t enough. A plaintiff must cite functionally identical authority that puts the unlawfulness “beyond debate” to “every” reasonable officer.6 Last month, for example, the Eleventh Circuit, noting no “materially similar case” (thus no “clearly established law“), granted immunity to a police officer who fired at a family‘s dog but instead shot a 10-year-old child lying face-down 18 inches from the officer.7 Not only that, the court “expressly [took] no position” as to “whether a constitutional violation occurred in the first place.”8 Translation: If the same officer tomorrow shoots the same child while aiming at the same dog, he‘d receive the same immunity. Ad infinitum.
The Supreme Court demands precedential specificity. But it‘s all a bit recursive. There‘s no earlier similar case declaring a constitutional violation because no earlier plaintiff could find an earlier similar case declaring a constitutional violation. “Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because no one‘s answered
II
In recent years, individual Justices have raised concerns with the Court‘s immunity caselaw.10 Even so, the doctrine enjoys resounding, even hardening favor at the Court. Just three months ago, in a case involving the warrantless strip search of a four-year-old preschooler, a strange-bedfellows array of scholars and advocacy groups—perhaps the most ideologically diverse amici ever assembled—implored the Court to push reset.11 To no avail. This much is certain: Qualified immunity, whatever its success at achieving its intended policy goals, thwarts the righting of many constitutional wrongs.
Perhaps the growing left-right consensus urging reform will one day win out. There are several “mend it, don‘t end it” options. The Court could revisit Pearson12 and nudge courts to address the threshold constitutional merits rather than leave the law undeveloped.13 Even if a particular plaintiff cannot
Prudent refinements abound. But until then, as Judge Jones explains in today‘s principal dissent, the Supreme Court‘s unflinching, increasingly emphatic application of “clearly established law” compels dismissal.
III
I remain convinced that contemporary immunity jurisprudence merits “a refined procedural approach that more smartly—and fairly—serves its
For these reasons, I respectfully dissent.
Apparently SUMREVs mean nothing.
In Luna v. Mullenix, 773 F.3d 712 (5th Cir. 2014), we sent a state trooper to a jury “in defiance” of “the concept and precedents of qualified immunity.” 777 F.3d 221, 222 (5th Cir. 2014) (Jolly, J., dissenting from denial of rehearing en banc). The Supreme Court summarily reversed us. Mullenix v. Luna, 136 S. Ct. 305 (2015) (per curiam). Then they GVR‘d us in this case and ordered us to reconsider our obvious error in light of Mullenix.
The en banc majority instead doubles down. That is wrong for all the reasons Judge Jones gives in her powerful dissent, which we join in full. We write to emphasize the en banc majority‘s unmistakable message: Four years after Mullenix, nothing has changed in our circuit.
I.
The Supreme Court has not hesitated to redress similar intransigence from our sister circuits—often through the “extraordinary remedy of a summary reversal.” Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J., dissenting) (quotation omitted). See, e.g., City of Escondido v. Emmons, 139 S. Ct. 500 (2019) (per curiam) (summarily reversing the Ninth Circuit); Kisela, 138 S. Ct. 1148 (2018) (per curiam) (same); District of Columbia v. Wesby, 138 S. Ct. 577 (2018) (reversing the D.C. Circuit); White v. Pauly, 137 S. Ct. 548 (2017) (per curiam) (summarily reversing the Tenth Circuit); City and County of San Francisco v. Sheehan, 135 S. Ct. 1765 (2015) (reversing the Ninth Circuit); Carroll v. Carman, 574 U.S. 13 (2014) (per curiam) (summarily reversing the Third Circuit); Wood v. Moss, 572 U.S. 744 (2014) (reversing the Ninth Circuit); Plumhoff v. Rickard, 572 U.S. 765 (2014) (reversing the Sixth Circuit); Stanton v. Sims, 571 U.S. 3 (2013) (per curiam) (summarily reversing the Ninth Circuit); Reichle v. Howards, 566 U.S. 658 (2012) (reversing the Tenth Circuit);
In each of these cases, the Supreme Court reminded lower courts that qualified immunity requires us not only to identify a clearly established rule of law, but to do so with great specificity. Everyone agrees, of course, that Ryan Cole has a constitutional right not to be seized unreasonably. But “that is not enough” to subject a police officer to the burdens of our civil litigation system. Saucier v. Katz, 533 U.S. 194, 202 (2001). The Supreme Court has “repeatedly told courts . . . not to define clearly established law at [that] high level of generality.” al-Kidd, 563 U.S. at 742. Rather, “[t]he dispositive question is whether the violative nature of particular conduct is clearly established.” Mullenix, 136 S. Ct. at 308 (citation omitted).
Only by identifying a specific and clearly established rule of law do we ensure that the officer had “fair notice“—“in light of the specific context of the case, not as a broad general proposition“—that his or her particular conduct was unlawful. Brosseau, 543 U.S. at 198 (citation omitted). See also, e.g., Sheehan, 135 S. Ct. at 1776 (“Qualified immunity is no immunity at all if ‘clearly established’ law can simply be defined as the right to be free from unreasonable searches and seizures.“); Wilson v. Layne, 526 U.S. 603, 615 (1999) (same); Anderson v. Creighton, 483 U.S. 635, 640 (1987) (same).
So where is our clearly established law at issue here? Unbelievably, the en banc majority says we don‘t need any. That‘s so, they say, because “[t]his is an obvious case.” Ante, at 16. That‘s obviously wrong for three reasons.
First, the Supreme Court to date has never identified an “obvious” case in the excessive force context. And the majority thinks this is the first? A case where a mentally disturbed teenager—who has a loaded gun in his hand with
Second, the Supreme Court has granted qualified immunity in much tougher cases than this one. In Plumhoff, for example, officers fired 15 shots and killed two unarmed men who fled a traffic stop. In Brosseau, an officer shot an unarmed man who refused to open his truck window. In Kisela, officers shot a woman who was hacking a tree with a kitchen knife. In Sheehan, officers shot an old woman holding a kitchen knife in an assisted-living facility. In all of these cases, the Court held the officers were entitled to qualified immunity.
Third, this is Mullenix all over again. There our court relied on clearly established law as articulated in Tennessee v. Garner, 471 U.S. 1 (1985). Garner involved an unarmed man who fled from police after stealing $10. An officer fatally shot Garner in the back of the head as he attempted to climb a fence. Our court then extended Garner to Mullenix‘s case—which involved a man who led police on a high-speed car chase after violating his probation. A state trooper attempted to end the chase by shooting the speeding car‘s engine block—but he missed the engine, hit the driver in the face, and killed him. See Luna, 773 F.3d at 719-20 (discussing Garner). The Supreme Court summarily reversed us because—as should be painfully obvious from the Court‘s serial reversals in this area—that‘s not how qualified immunity works. See Mullenix, 136 S. Ct. at 308-09 (holding our court erred in our extrapolation of Garner to
Still, somehow, today‘s majority does not get it. Here, as in Mullenix, the majority attempts to rely on Garner to establish the governing rule of law. From Garner, the majority somehow divines a rule that an officer cannot shoot a mentally distraught teenager holding a gun near his school. This is demonstrably erroneous. In fact, one thing that unites the Supreme Court‘s recent reversals in cases involving qualified immunity and excessive force is the attempt by lower courts to extrapolate Garner to new facts. See Mullenix, 136 S. Ct. at 308-09; Scott v. Harris, 550 U.S. 372, 381-82 (2007) (same); Allen v. City of West Memphis, 509 F. App‘x 388, 392 (6th Cir. 2012) (extrapolating Garner), rev‘d by Plumhoff, supra.
Moreover, there are additional parallels between Mullenix and this case. Consider the supposed requirement that an officer take some sort of non-lethal measure before using lethal force. In Mullenix, our court used the power of 20-20 hindsight to say that a reasonable officer should have used spike strips to
So too here. In this case, the majority complains that the officers did not provide sufficient warning. But there was no clearly established law requiring Officers Cassidy and Hunter to announce themselves—while caught in an open and defenseless position—and hope not to get shot. That is particularly true here because officers previously ordered Cole to put down his gun, he refused, and he threatened to kill anyone who attempted to disarm him.
And in Mullenix, as here, we accused the police officers of being cowboys. Earlier on the day of the shooting, Trooper Mullenix received a negative performance review for “not being proactive enough as a Trooper“; so in the aftermath of the shooting, Mullenix said to his supervisor, “How‘s that for proactive?” 773 F.3d at 717; see also 136 S. Ct. at 316 (Sotomayor, J., dissenting). The panel opinions and en banc majority opinion in this case likewise seethe with innuendo that Officers Hunter and Cassidy were wannabe cowboys looking for a gun fight. We are in no position to make such accusations. No member of this court has stared down a fleeing felon on the interstate or confronted a mentally disturbed teenager who is brandishing a loaded gun near his school. And the Mullenix Court held that the qualified-immunity standard gives us no basis for sneering at cops on the beat from the safety of our chambers. See 136 S. Ct. at 310-11 (majority op.) (citing Brief for National Association of Police Organizations et al. as Amici Curiae). Yet here we are. Again.
The majority cannot dodge responsibility for today‘s decision by pointing to the limits of appellate jurisdiction. See ante, at 13-14 (majority op.); ante, at 1 (Elrod, J., concurring). We obviously lack interlocutory appellate jurisdiction to review the genuineness of an officer‘s fact dispute. See, e.g., Johnson v. Jones, 515 U.S. 304, 313-14 (1995); Kinney v. Weaver, 367 F.3d 337, 346-47 (5th Cir. 2004) (en banc) (applying Johnson v. Jones).
But that does nothing to defeat jurisdiction where, as here, the factual disputes are immaterial. That is why the Supreme Court repeatedly has rejected such no-jurisdiction pleas from those who wish to deny qualified immunity. See, e.g., Plumhoff, 572 U.S. at 771-73; id. at 773 (noting existence of genuine fact dispute did not defeat appellate jurisdiction in Scott v. Harris).
All the fact disputes in the world do nothing to insulate this legal question: Is this an “obvious case” under Garner—notwithstanding a mountain of SUMREVs, GVRs, and pointed admonitions from the Supreme Court? The majority says yes. Ante, at 16. They obviously must have jurisdiction to say so. With respect, it makes no sense to say we lack jurisdiction to disagree with them.
III.
What explains our circuit‘s war with the Supreme Court‘s qualified-immunity jurisprudence? Two themes appear to be at play.
First, the majority suggests we should be less than enthused about Supreme Court precedent in this area, because it conflicts with plaintiffs’ jury rights. To quote the panel: “Qualified immunity is a judicially created doctrine calculated to protect an officer from trial before a jury of his or her peers. At bottom lies a perception that the jury brings a risk and cost that law enforcement officers should not face, that judges are preferred for the task—a
We appreciate the majority‘s candor. But inferior court judges may not prefer juries to the Justices.
Second, some have criticized the doctrine of qualified immunity as ahistorical and contrary to the Founders’ Constitution. Ante at 2 (suggesting denial of qualified immunity is commanded by “the Founders“); compare William Baude, Is Qualified Immunity Unlawful?, 106 CALIF. L. REV. 45, 49-61 (2018), with Aaron L. Nielson & Christopher J. Walker, A Qualified Defense of Qualified Immunity, 93 NOTRE DAME L. REV. 1853, 1856-63 (2018); see also Zadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring dubitante), revised on petition for reh‘g en banc, 928 F.3d 457, 473 (5th Cir. 2019) (Willett, J., concurring in part and dissenting in part).
As originalists, we welcome the discussion. But separate and apart from the fact that we are bound as a lower court to follow Supreme Court precedent, a principled commitment to originalism provides no basis for subjecting these officers to trial.
The originalist debate over qualified immunity may seem fashionable to some today. But it is in fact an old debate. Over two decades ago, Justices Scalia and Thomas noted originalist concerns with qualified immunity. But they also explained how a principled originalist would re-evaluate established
A principled originalist would not cherry pick which rules to revisit based on popular whim. A principled originalist would fairly review decisions that favor plaintiffs as well as police officers. As Justice Scalia explained in a dissent joined by Justice Thomas, a principled originalist would evenhandedly examine disputed precedents that expand, as well as limit,
[O]ur treatment of qualified immunity under
42 U.S.C. § 1983 has not purported to be faithful to the common-law immunities that existed when§ 1983 was enacted . . . . [But] [t]he§ 1983 that the Court created in 1961 bears scant resemblance to what Congress enacted almost a century earlier. I refer, of course, to the holding of Monroe v. Pape, 365 U.S. 167 (1961), which converted an 1871 statute covering constitutional violations committed “under color of any statute, ordinance, regulation, custom, or usage of any State,” Rev. Stat. § 1979,42 U.S.C. § 1983 (emphasis added), into a statute covering constitutional violations committed without the authority of any statute, ordinance, regulation, custom, or usage of any State, and indeed even constitutional violations committed in stark violation of state civil or criminal law.
Justices Scalia and Thomas ultimately concluded that it is better to leave things alone than to reconfigure established law in a one-sided manner. If we‘re not willing to re-evaluate all
Translation: If we‘re not going to do it right, then perhaps we shouldn‘t do it at all.
Subjecting these officers to trial on originalist grounds is precisely the unprincipled practice of originalism that Justices Scalia and Thomas railed against. And not just for the procedural reasons they identified in Crawford-El. What about the original understanding of the Fourth Amendment, which the plaintiffs here invoke as their purported substantive theory of liability in this case? Does the majority seriously believe that it is an “unreasonable seizure,” as those words were originally understood at the Founding, for a police officer to stop an armed and mentally unstable teenager from shooting innocent officers, students, and teachers?
And make no mistake: Principled originalism is not just a matter of intellectual precision and purity. There are profound practical consequences here as well, given the important and delicate balance that qualified immunity is supposed to strike. As the Supreme Court has explained, qualified immunity ensures that liability reaches only “the plainly incompetent or those who knowingly violate the law.” Mullenix, 136 S. Ct. at 308 (quotation omitted). And absent plain incompetence or intentional violations, qualified immunity must attach, because the “social costs” of any other rule are too high:
[I]t cannot be disputed seriously that claims frequently run against the innocent as well as the guilty—at a cost not only to the defendant officials, but to society as a whole. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible public officials, in the unflinching discharge of their duties.
Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (alterations and quotations omitted); see also, e.g., Sheehan, 135 S. Ct. at 1774 n.3 (noting “the importance of qualified immunity to society as a whole“).
For those who have expressed concerns about a “one-sided approach to qualified immunity,” Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting); see also Zadeh, 902 F.3d at 499 & n.10 (Willett, J., concurring dubitante) (quoting Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting)); 928 F.3d at 480 & n.61 (Willett, J., concurring in part and dissenting in part) (same), look no further than the majority opinion. The majority undoes the careful balance of interests embodied in our doctrine of qualified immunity, stripping the officers’ defenses without regard to the attendant social costs.2
Now that is a one-sided approach to qualified immunity as a practical matter. And as Justices Scalia and Thomas have observed, it‘s also a one-sided approach to qualified immunity as an originalist matter: It abandons the defense without also reconsidering the source and scope of officers’ liability in the first place. See Crawford-El, 523 U.S. at 611–12 (Scalia, J., joined by Thomas, J., dissenting). To quote Justice Alito: “We will not engage in this halfway originalism.” Janus v. Am. Fed‘n of State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2470 (2018). See also id. (criticizing litigants for “apply[ing] the Constitution‘s supposed original meaning only when it suits them“); Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Alito, J.,
* * *
Our circuit, like too many others, has been summarily reversed for ignoring the Supreme Court‘s repeated admonitions regarding qualified immunity. There‘s no excuse for ignoring the Supreme Court again today. And certainly none based on a principled commitment to originalism.
Originalism for plaintiffs, but not for police officers, is not principled judging. Originalism for me, but not for thee, is not originalism at all. We respectfully dissent.
The majority opinion overlooks or omits undisputed material facts showing that any reasonable officer would have viewed Ryan Cole as a severe threat. Before the shooting, the defendant officers: (1) were tracking a distraught suspect wandering through the woods armed with a loaded 9mm semi-automatic handgun; (2) who had earlier that morning off-loaded a cache of weapons and ammunition at a friend‘s house; (3) who had already refused to give up his pistol when confronted by the police; and (4) who had threatened to “shoot anyone who came near him.” Cole did not dispute those facts and, indeed, convinced the district court they were irrelevant. Joining Judge Jones’ dissent in full, I respectfully dissent on the additional grounds provided by these pre-encounter facts.
No one doubts some of the events on October 25, 2010—when the officers violently encountered Cole in the woods near Garland, Texas—are disputed. The question is whether those disputes are material. See, e.g., Bazan ex rel. Bazan v. Hidalgo Cty., 246 F.3d 481, 483 (5th Cir. 2001) (“threshold issue” on qualified immunity appeal “is whether the facts the district judge concluded are genuinely disputed are also material“). Judge Jones’ dissent compellingly shows they are not: Resolving all disputes in Cole‘s favor, the undisputed facts still show the officers violated no clearly established law. Jones Dissent at 2–3, 11–22. The majority thus errs by concluding that “competing factual narratives” bar it from deciding qualified immunity. Maj. at 3.
I write separately to emphasize what led up to the shooting, and also to explain why those undisputed events provide further reasons to reverse. The majority and Judge Jones focus on the shooting itself, as did the district court. But the prelude to the shooting gives unavoidable context for evaluating the
This detailed record review (see Part I) compels two conclusions (see Part II). First, the district court erred by excluding the undisputed events before the shooting. That error—based on a misreading of our precedent—truncated the qualified immunity analysis. That alone requires reversing the summary judgment denial. Second, in light of those pre-encounter facts, the majority‘s insistence that this is an “obvious case” collapses. Maj. at 16. Given what confronted the officers, the majority cannot say what they did was “obviously” unlawful. The only thing obvious is that no case told the officers, clearly or otherwise, how to respond when they met Cole that morning, emerging from the woods with his finger on the trigger of a loaded gun.
By denying qualified immunity and making the officers run the gauntlet of trial, the majority sets a precedent that “seriously undermines officers’ ability to trust their judgment during those split seconds when they must
I.
The majority begins “around 10:30 a.m.,” less than an hour before the shooting. Maj. at 4. But events began to unfold much earlier.2 Around 2 a.m. that morning, Cole knocked on the door of his friend, Eric Reed Jr., to show him “a 44 magnum revolver.” Awakened by the knocking, Eric Jr.‘s father (Eric Sr.) left his room, saw Cole with the gun, and told him to leave. Eric Jr. convinced Cole to leave the revolver because “he [did not] need to be carrying a weapon around.”
Around 8 a.m., Eric Jr. gave his father Cole‘s gun. Eric Sr., a retired Sachse police officer, then notified Officer Vernon Doggett, who came to the Reeds‘. Eric Jr. told his father and Doggett that “[Cole] told him there were more guns on the side of the house.” There, they found “a double barrel shot gun with some shot gun shells and what appeared to be a plastic bag with 9mm bullets,” which Doggett secured. Eric Jr. also explained Cole “had broken up with his girlfriend and was going to kill himself and his girlfriend.”
Doggett was a resource officer for Sachse High School, where Cole and his girlfriend attended. He contacted Sergeant Garry Jordan, told him about the guns, and asked to meet at the school. Doggett reported that Cole “may be at school with a 9mm handgun.” Another officer checked whether Cole was in class, and Jordan searched the parking areas for Cole.
Not finding him, Jordan went to Coles’ and spoke to his parents. He learned that, the previous evening, officers had responded to a disturbance there. Officers had found Cole‘s father “holding Ryan down” because “he did not want [Cole] to leave the residence with the pocket knife that he had.” He said “his son had a wild look in his eye and . . . had been smoking K2.” While the officers found there had been no assault, all agreed it was “a good idea for Cole to stay the night with a friend.” The Coles had not seen Ryan since then but reported he had “apparently returned home during the night and had opened the gun safe, removed an unknown amount [sic] of weapons, and reset the combination.”
Meanwhile, Eric Jr. noticed Cole was back. He asked Cole if he was armed and Cole showed him a “.38 revolver” and a “9mm semiauto.” He convinced Cole to give him the revolver, but Cole told him he was not “getting the 9mm.” Cole also said that the 9mm was loaded and that he did not “wanna use it on [Eric Jr.]” Cole stated that “he would shoot anyone who came near him.” Cole left, and Eric Jr. called his father, who called the police.
Around 10:49 a.m., Officer Stephen Norris radioed “all available Sachse officers” to respond to the area of the Reed residence. He reported Cole was “observed running south of the location with 3 weapons, one a loaded 9mm.” He also reported Cole was “irate and distraught and stated he would shoot anyone who came near him.” Around the same time, Sachse Officer Michael Hunter was dispatched to assist Jordan at the Coles‘, but on arrival he was told by Sachse Officer Carl Carson he was not needed. As Hunter was leaving, he heard Norris’ call advising Cole was “in the area . . . with a gun.” Hunter
Sachse Officer Martin Cassidy also received Norris’ dispatch and went to the area Norris indicated. He was given Cole‘s description and advised that Cole was “armed with at least one handgun and possibly three.” Cassidy spoke with Norris on the phone about “the proximity of Armstrong Elementary School to the location where [Cole] was last seen.” Cassidy therefore went to check on the school and a nearby shopping center for any signs of Cole.
Meanwhile, Hunter arrived at the Reeds‘, where he met Jordan and Carson. Hunter overheard Eric Jr. say he had gotten “one gun” from Cole but that Cole had left “armed with a 9mm handgun.” “Hunter put [Cole‘s] description out to other officers,” and then he and Carson went to search for Cole. After speaking with the officers, Eric Jr. checked for more guns and found “6 firearms around [his] house.”
Jordan then observed Officers Elliott and Sneed pass by in a patrol unit. Those officers found Cole nearby. Elliott reported that “Sneed . . . advised [Cole] to show his hands.” Instead, Cole “reached into his waist band and pulled a pistol and placed it to his head after about three steps and refused to obey Lt. Sneed[‘s] commands.” When Jordan arrived, Sneed “drew his duty weapon and yelled at [Cole] to drop the weapon,” but Cole refused. As Cole continued eastbound towards Highway 78, Sneed “warned [Cole] that [he] would shoot him in the back if he tried to get to the highway or walk toward any innocent bystanders.” Cole “would occasionally turn his head and yell obscenities at [Sneed].” Two other officers then parked “directly in front of [Cole‘s] path.” To avoid them, Cole turned “northbound and began walking the railroad tracks.” Jordan was constantly updating dispatch about Cole‘s movements. “Suddenly, [Sneed] observed [Cole] cut eastbound and run up a hill and into the brush
Hunter, Carson, and Cassidy were monitoring Cole‘s movements from the dispatches. They arrived separately at the part of Highway 78 where Cole was thought to be. Hunter noted “[Cole] appeared to be walking towards the railroad track,” and he advised Carson “[they] needed to go out to the highway and intercept [him].” Cassidy advised Carson to get out his taser and follow Cassidy. Hunter “parked further south on Highway 78 as [he] figured [Cole] would be on the railroad track paralleling Highway 78 at about [his] location.” He guessed correctly. As Hunter “began to look for cover since [he] was out in the open,” Cole “walked out from the brush approximately 10 to 20 feet from [Hunter].”
What followed was the shooting.
II.
Cole did not dispute these stage-setting events in opposing summary judgment. To the contrary, he argued any “prior events” before the shooting were “irrelevant.” The district court agreed, excluding from its qualified immunity analysis the “events” from “earlier that morning,” Cole, 2014 WL 266501, at *13 n.5, and focusing solely on what happened “immediately before and during the shooting.” Cole, 68 F. Supp. 3d at 644. That mistake skewed the district court‘s analysis and provides yet another reason why we should reverse.
First, the district court erred by excluding everything that happened before the officers’ five-second encounter with Cole. That approach artificially truncates the qualified immunity analysis. In assessing qualified immunity, we “[c]onsider[ ] the specific situation confronting [officers],” City & Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1778 (2015), which “must be judged from
The district court‘s sole contrary authority was our statement in Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011), that the excessive force inquiry “is confined to whether the [officer or another person] was in danger at the moment of the threat.” But the district court overread Rockwell. We made that statement in Rockwell to reject the notion that officers’ negligence before
By misreading our cases, the district court blinded itself to a rich vein of facts—facts Cole did not dispute below—that round out the picture of the officers’ violent encounter with Cole. At a minimum, that error alone requires reversing the denial of summary judgment and remanding for reconsideration of the officers’ actions in light of all relevant undisputed facts. See, e.g., White v. Balderama, 153 F.3d 237, 242 (5th Cir. 1998) (concluding “limited remand” was appropriate given “lack of specificity in . . . district court‘s order denying summary judgment on the basis of qualified immunity“).
Second, the undisputed pre-encounter events underscore why, contrary to the majority‘s view, this is far from an “obvious case.” Maj. at 16. An “obvious case,” the Supreme Court has explained, is one where an officer‘s actions are
Judge Jones’ dissent shows that, even resolving all disputed facts in Cole‘s favor, the officers did not “obviously” violate Garner‘s generalized test during the immediate shooting—that is, when in the space of five seconds at most, the officers met Cole at a distance of 10–20 feet as he backed out of the woods, still armed, and began to turn. Jones Dissent at 11–12. But if we include the undisputed facts leading up to the shooting, the notion that this is an “obvious case” crumbles. To believe that, we would have to blind ourselves to the facts that (1) the officers were searching for an irate, distraught suspect; (2) who was wandering through the woods armed with a loaded semi-automatic handgun; (3) who had refused police demands to turn over his weapon; (4) who had just that morning deposited a cache of weapons and ammunition at his friend‘s house; and (5) who had threatened to “shoot anyone who came near him.” Those were the “totality of the circumstances” facing the officers, Colston, 130 F.3d at 100, and they were not disputed by Cole or the district court. Given
Once stripped of the conceit that this is an “obvious case,” the majority has nothing left to justify its holding. The Supreme Court has bluntly told us that, outside the “obvious case” scenario, ”Garner . . . do[es] not by [itself] create clearly established law[.]” White v. Pauly, 137 S. Ct. at 552. And, of course, the majority does not try to claim that the facts of Garner are anything like this case. In Garner, a police officer shot a fleeing, unarmed burglar in the back of the head. The officer admitted he did not even suspect the burglar was armed. See 471 U.S. at 3 (noting the officer “saw no sign of a weapon” at the time he shot and, afterwards, admitted “[he] was ‘reasonably sure’ and ‘figured’ that [the suspect] was unarmed“). Apples and oranges does not capture the chasm between that case and this one.
The majority does claim that our 1996 decision in Baker v. Putnal, “clearly established” that the officers’ conduct here was unlawful. Maj. at 16 (citing 75 F.3d 190, 193 (5th Cir. 1996)). That is mistaken. In Baker, Officer Putnal was patrolling a crowded beach area when gunfire erupted. Id. Witnesses directed Putnal “toward a red car which they said contained the shooters.” Id. He approached that car, but then saw two people sitting in another vehicle, a truck. Id. One of the truck‘s passengers, Wendell Baker, “turned in Putnal‘s direction . . . [and] Putnal shot and killed [him].” Id. While a pistol was recovered from the truck, the plaintiffs denied Baker “was holding a pistol” when shot. Id. at 196. In other words, a jury could have found Baker was not holding a gun when Putnal killed him.
It is not hard to grasp the key difference between Baker and this case. When shot, Baker was possibly not even holding a gun. When shot, Cole was undisputedly holding a gun. Imagine this conversation between a police officer and the police department‘s lawyer:
OFFICER: I heard the Fifth Circuit just decided this Baker case. What does it tell me I should or shouldn‘t do in the field?
LAWYER: Well, Baker says you lose qualified immunity if you shoot someone sitting in a car doing nothing more threatening than just turning in your direction. In other words, someone you don‘t even see holding a weapon.
OFFICER: Makes sense. But tell me this. What if the person I approach is holding a gun?
LAWYER: Well, Baker doesn‘t speak clearly to that situation. I mean, the jury in Baker could have found the guy didn‘t even have a gun in his hand when the officer shot him.
In other words, contrary to the majority‘s view, Baker could not have “established clearly that Cassidy‘s and Hunter‘s conduct . . . was unlawful” when they shot Cole as he emerged from the woods with his finger on the trigger of a loaded gun. Maj. at 16. To guide officers in the field, a controlling precedent must be “sufficiently clear that every reasonable [officer] would have understood that what he is doing violates” the Constitution. Mullenix, 136 S. Ct. at 308 (cleaned up). Baker does not come close.
The officers deserve qualified immunity on the excessive force claims. I respectfully dissent.
Notes
Zadeh, 928 F.3d at 479. In a footnote, Judge Willett notes that his criticism of the Supreme Court‘s qualified immunity precedents is not based on originalist grounds. Ante, at 4 n.19. To our minds, that makes his criticism harder, not easier, to defend. If his concerns are based on practical and not originalist considerations, then he should address them to the Legislature, rather than attack the Supreme Court as “one-sided.” Zadeh, 902 F.3d at 499 & n.10 (Willett, J., concurring dubitante) (quoting Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting)). He also invokes Justice Thomas‘s opinion in Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017). But that opinion cites Justice Scalia‘s opinion in Crawford-El, which (as we explained above) warns qualified immunity skeptics not to engage in halfway originalism. See, e.g., Mullenix v. Luna, 136 S. Ct. 305, 306 (2015) (assessing officer‘s shooting of suspect during car chase beginning with events preceding the “18-minute chase“); Plumhoff v. Rickard, 572 U.S. 765, 768–70 (2014) (assessing officer‘s shooting of suspects in Memphis, Tennessee after lengthy car chase beginning with traffic stop in “West Memphis, Arkansas“); Brosseau v. Haugen, 543 U.S. 194, 195 (2004) (evaluating officer‘s shooting of fleeing suspect beginning with events “[o]n the day before the fracas“); Colston, 130 F.3d at 100 (determining officer‘s failure to warn was not objectively unreasonable “[i]n light of the totality of the circumstances facing [the officer]“) (citing Garner, 471 U.S. at 10).The implications of the majority‘s mistakes cannot be minimized. The majority decides that qualified immunity can be endangered by an affidavit filed at summary judgment that creates a fact issue nowhere else supported by record evidence.
Worse still, it seriously undermines officers’ ability to trust their judgment during those split seconds when they must decide whether to use lethal force. Qualified immunity is designed to respect that judgment, requiring us to second-guess only when it clearly violates the law. The standard acknowledges that we judges—mercifully—never face that split second. Indeed, we never have to decide anything without deliberation—let alone whether we must end one person‘s life to preserve our own or the lives of those around us.
The qualified immunity standard stops this privilege from blinding our judgment, preventing us from pretending we can place ourselves in the officers’ position based on a cold appellate record. It prevents us from hubristically declaring what an officer should have done—as if we can expect calm calculation in the midst of chaos.
The majority opinion, written from the comfort of courthouse chambers, ignores that deference. Instead, it warns officers that they cannot trust what they see; they cannot trust what their fellow officers observe; they cannot trust themselves when posed with a credible threat. It instructs them, in that pivotal split second, to wait. But when a split second is all you have, waiting itself is a decision—one that may bring disastrous consequences.