Aaron BROTHERS, as Independent Executor of the Estate of William Slade Sullivan; Rosemary Claus Sullivan, Plaintiffs-Appellees, v. Officer Nathan J. ZOSS; Officer Kristen A. Mayo; Officer Aaron P. Ballew, Defendants-Appellants.
No. 15-51201
United States Court of Appeals, Fifth Circuit.
September 14, 2016
837 F.3d 513
JERRY E. SMITH, Circuit Judge
The majority opinion invokes the rule of orderliness to avoid the conclusion that Hampton and Jennings control. It argues that Hart conflicts with and predates Hampton and Jennings. However, these cases do not conflict. As discussed above, Hart held that a governmental official could be liable under Franks when he helped to draft an affidavit in support of a warrant and provided incorrect information for use in that affidavit. Hampton and Jennings held that a governmental official could not be liable under Franks when he neither signed nor drafted an affidavit in support of a warrant. Thus, all three cases agree that, as Hart puts it, an officer cannot be liable under Franks without providing incorrect information “for use in an affidavit in support of a [] warrant.” 127 F.3d at 448-49. The rule of orderliness is not offended by either Hampton or Jennings.
not prepare or assist in the preparation of an erroneous arrest warrant, I respectfully dissent.
IV.
Because our published, existing case law provides that a law enforcement officer is entitled to qualified immunity where he did
Mike Thompson, Jr., Esq., Archie Carl Pierce, Esq., Wright & Greenhill, Austin, TX, for Defendants-Appellants.
Before KING, SMITH, and COSTA, Circuit Judges.*
JERRY E. SMITH, Circuit Judge:
Officers Nathan Zoss, Kristen Mayo, and Aaron Ballew forcibly removed William Sullivan from his pickup truck after he refused to comply with their lawful commands to exit the vehicle. In the process, Sullivan, who was heavily intoxicated, morbidly obese, and handicapped, suffered a serious injury that rendered him a quadriplegic. A few months later, he died.
In the ensuing civil lawsuit, the officers moved for summary judgment based on qualified immunity, which the district court denied, finding that there were genuine disputes of material facts. In so doing, the court erred because, even on plaintiffs’ version of the tragic facts, the officers did not violate Sullivan‘s constitutional rights.
I.
At about 11:30 p.m., Sullivan drove to Rick‘s Cabaret (“Rick‘s“), a club, where he drank heavily and by the end of the night
Shortly afterward, a Rick‘s security guard called 911 and requested police assistance to prevent Sullivan from driving under the influence. When Zoss, the first responder, arrived on the scene, Sullivan was in his pickup with the engine running. Zoss approached Sullivan, engaged him in polite conversation, and requested that he exit the truck. Sullivan, however, refused to do so, “because,” he told Zoss, “you‘re going to arrest me.” Zoss then warned Sullivan that he would be arrested if he did not step out of the vehicle. Sullivan slowly opened the door but immediately closed it when Zoss reached for the handle.
Because of Sullivan‘s noncompliance, Zoss and fellow officers Mayo and Ballew decided to resort to force. Mayo moved Zoss‘s police cruiser in front of Sullivan‘s pickup to try to prevent him from driving off, while Ballew drew his gun and pointed it at Sullivan. When Sullivan dropped his hands from view, Zoss also drew his weapon and ordered Sullivan to put his hands on his face. Sullivan eventually moved his hands back into view but, despite Zoss‘s repeated orders, did not put his hands on his face.
At Zoss‘s command, Mayo opened the driver‘s door and told Sullivan to get out. Sullivan told her to “hold on” as he took a phone call. Mayo grabbed onto his left arm and attempted to pull him from the truck, but, because of his great weight, she was unable to move him.1 Zoss came over to help. He reached over Sullivan‘s body to grab his right arm, and then Zoss and Mayo pulled Sullivan out of the vehicle, which was a large, elevated pickup. In the process, Sullivan fell and slammed hard into the pavement. He did not use his feet to brace his fall; nor could he use his hands, because Zoss and Mayo were holding onto them.
Immediately after Sullivan hit the ground, he yelled, “Ow, oh my back.” The officers handcuffed him. When they attempted to sit him up, he informed them that he had broken vertebrae. The officers therefore stopped moving him and called for medical assistance.
Aaron Brothers, to whom Sullivan had conveyed power of attorney, sued the City of Round Rock, Zoss, Mayo, and Ballew under
II.
We review de novo the denial of summary judgment based on qualified immunity. Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010). In denying such a motion, the trial court makes two determinations. First, it “decides that a certain course of conduct would, as a matter of law, be objectively unreasonable in light of clearly established law. Second, the court decides that a genuine issue of fact exists regarding whether the defendant(s) did, in fact, engage in such conduct.” Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc). On interlocutory appeal, this court generally has jurisdiction to “review the materiality of any factual disputes, but not their genuineness.” Hogan v. Cunningham, 722 F.3d 725, 730-31 (5th Cir. 2013).
The Supreme Court has created a narrow exception to this jurisdictional limitation where the record blatantly contradicts one party‘s version of events. Curran v. Aleshire, 800 F.3d 656, 663-64 (5th Cir. 2015). In Scott v. Harris, 550 U.S. 372 (2007), the Court rejected the plaintiff‘s version because it was clearly contradicted by video evidence. Harris authorizes “assign[ing] greater weight . . . to the facts evident from video recordings taken at the scene.”3 “When one party‘s description of the facts is discredited by the record, we need not
The district court ruled that there were genuine disputes as to material facts. The officers urge us to review the genuineness in light of the video evidence and Harris‘s exception to the jurisdictional limitation. We agree with the plaintiffs, however, that the video evidence does not unequivocally disprove their version of events, which we therefore accept for purposes of this appeal.5
III.
Qualified immunity provides government officials with immunity from suit—not merely a defense to 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.”6 It thus involves two inquiries: “A public official is entitled to qualified immunity unless the plaintiff demonstrates that (1) the defendant violated the plaintiff‘s constitutional rights and (2) the defendant‘s actions were objectively unreasonable in light of clearly established law at the time of the violation.”7 These inquiries can be made in any order. Callahan, 555 U.S. at 227. Both are matters of law for the court.8
To succeed on an excessive-force claim under the Fourth Amendment, plaintiffs must demonstrate “(1) an injury that (2) resulted directly and only from the use of force that was excessive to the need, and that (3) the force used was objectively unreasonable.”10 In this procedural posture, though plaintiffs have no trouble satisfying the first two prongs, they are unable to meet the third because, even on the facts alleged and drawing all reasonable inferences in their favor, the officers’ conduct was objectively reasonable.
In excessive-force claims under the Fourth Amendment, the reasonableness of an official‘s conduct depends on “the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. The court must adopt “the perspective of a reasonable officer on the scene, rather than [judge] with the 20/20 vision of hindsight.” Id.11 “The calculus of reasonableness must embody
The Graham factors support the decision to resort to force. Sullivan‘s crimes were serious: driving while intoxicated and interfering with the duties of a public servant. A reasonable officer, moreover, could have perceived him as an immediate threat. As long as Sullivan remained in his pickup, he posed a potential danger to the officers and others.12 A motor vehicle can be used as a dangerous weapon, even when blocked in by a police cruiser. See, e.g., Rickard, 134 S. Ct. at 2021-22 (car chase despite police blockade). And a reasonable officer could have feared that Sullivan might have a weapon on his person or in the pickup. See Reese v. Anderson, 926 F.2d 494, 500-01 (5th Cir. 1991). Finally, he resisted arrest, refusing to comply with the instructions to get out of his vehicle and closing his door in Zoss‘s face.13
Because Sullivan was not in the midst of harming other individuals and because his resistance was mostly passive, the officers were entitled to use only a proportional amount of force. We agree with the officers, though, that the force they employed was moderate. Although Ballew and Zoss drew their guns during the encounter, they never used them or any other weapon on Sullivan but merely used their hands to pull Sullivan from his vehicle. Nor did any of the officers gratuitously strike Sullivan. The only force they employed was pursuant to and required for removing him from the truck.14
The officers did not pull Sullivan with excessive force but, instead, slowly escalated the amount of force until it was enough to extract him. They began with a single arm bar. Mayo opened the door and attempted to pull Sullivan out by his left arm, but she was unable to move him on account of his great weight. Zoss thus came to her assistance and grabbed Sullivan by his right arm. Together, both officers repeatedly attempted to pull Sullivan out of the truck but succeeded only when they leaned back and put all of their weight into pulling.
The unfortunate result—Sullivan‘s falling on his chest and stomach—was not foreseeable. A reasonable officer could not have predicted that Sullivan would not use his feet to brace his fall. Moreover, given
We reject plaintiffs’ characterization of the force as “tantamount to deadly force” merely because it resulted in serious injury. Force is not necessarily deadly even where it results in death.15 The plaintiffs posit, however, that the officers could have acted differently. In particular, they could have spent more time negotiating with Sullivan. In denying qualified immunity, we have placed weight on the quickness with which law enforcement personnel have escalated from negotiation to force. See, e.g., Newman, 703 F.3d at 763; Deville, 567 F.3d at 167-68. The approximately two minutes that Zoss spent negotiating with Sullivan before deciding to resort to force was not objectively unreasonable, especially in light of, inter alia, Sullivan‘s explicit and repeated refusal to comply with Zoss‘s requests to exit the pickup and the possibility that Sullivan might have had access to a weapon or could have tried to drive his huge, elevated truck into the police car.
The order denying qualified immunity is REVERSED, and this matter is REMANDED for entry of dismissal as to the three officers and for further proceedings as needed.
JERRY E. SMITH
UNITED STATES CIRCUIT JUDGE