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Cole v. Carson

United States Court of Appeals, Fifth Circuit

September 25, 2018

CARL CARSON, Defendant-Appellant RANDY COLE; KAREN COLE; RYAN COLE, Plaintiffs-Appellees

          Appeals from the United States District Court for the Northern District of Texas

          Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.



         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 judgment made by appellate judges.

         We return to the October 25, 2010 shooting of Ryan Cole, at the time a seventeen-year-old high-school student in Sachse, Texas. Cole's parents, Karen and Randy, individually and as next friends of their son (collectively "the Coles") brought suit against Officer Carl Carson, Lieutenant Martin Cassidy, and Officer Michael Hunter of the Sachse Police Department under 42 U.S.C. § 1983. The Coles allege that the officers violated Cole's Fourth and Fourteenth Amendment rights during the shooting incident and by a subsequent fabrication of evidence. The officers filed dispositive pretrial motions in the district court, asserting the defense of qualified immunity. The district court denied these motions. In an earlier opinion, we affirmed the district court's denial of the officers' motions, with the exception of its denial of Carson's motion to dismiss the Fourth Amendment claim arising from fabrication of evidence.[1] Our previous judgment has now been vacated by the Supreme Court, [2] and we consider the case on remand in light of the Court's decision in Mullenix v. Luna.[3] We affirm the denial of Cassidy and Hunter's motion for summary judgment, otherwise reinstate our previous opinion in this case, and remand for further proceedings consistent with this opinion.


         On October 25, 2010, at around 10:30 a.m., the Sachse Police Department called available units to the neighboring town of Garland, Texas. Police there were searching for Ryan Cole, a seventeen-year-old white male, last seen around Norfolk Drive armed with up to three weapons, including a nine-millimeter handgun.

         Officer Michael Hunter responded by proceeding immediately to Norfolk Drive. In a statement given the day of the incident, Hunter described there encountering a young man who explained that Cole had given one of his guns to him, and that he had unsuccessfully tried to persuade Cole to surrender a handgun. In testimony given almost four years later in connection with this litigation, Hunter could recall in further detail that the young man was Eric Reed Jr., and that Reed described an altercation with Cole, which culminated in Cole threatening Reed with harm. Beyond the physical description relayed over the police radio, Hunter otherwise learned nothing "that would cause [him] to believe Cole was violent or wanted to hurt anyone."[4] Hunter searched the area, but heard over the radio that the suspect had been located in a nearby alleyway. Hunter went to the location. There he saw two officers following Cole, who was walking away from the officers holding his gun to his head, approaching railroad tracks in a wooded area along Highway 78. Hunter testified to his understanding that Cole was suicidal, and four years after the incident he also raised the possibility for the first time that Cole was using suicide as a pretext to evade the police. Hunter also testified four years later that he had heard police-radio transmissions indicating that officers were protecting nearby schools because of "Cole's dangerous conduct which posed a risk of serious harm to a great many innocent in the vicinity." Hunter suggested to Officer Carl Carson, who had joined him on the scene, that they circle behind the wooded area to intercept Cole.

         Meanwhile, Lieutenant Martin Cassidy had also heard the original dispatcher's summons. Cassidy called the Sachse Police Department for more information. On the day of the incident, Cassidy testified that he learned from the conversation that "this subject had shown up at [a] residence with a handgun and had just recently been seen walking away." Four years later, Cassidy testified that he had also learned much more: Cole was distraught from a recent separation from his girlfriend, also a student at Sachse High School; Cole had been involved in a domestic disturbance the previous night, and had brought a number of firearms to a friend's house, retaining possession of at least one and as many as three firearms. Cassidy had also learned that Cole "had threatened to shoot anyone who tried to take his gun," and had refused an order to drop his weapon. Sachse High School was about two miles from the search area, and Cassidy became concerned about the possibility that Cole intended to target the school. Following the search from his car, Cassidy also decided to intercept Cole on Highway 78.

         The three officers arrived at the side of Highway 78 around the same time. Hunter drew his duty weapon; Cassidy also drew his firearm, and advised Carson to be ready to use his taser. The officers started walking along the tree line. A steep embankment rose from the railroad tracks to the area along Highway 78. Cole would have to climb this embankment to approach the tree line. Cassidy and Hunter used both the edge of the embankment and the vegetation to conceal themselves as they walked. Hunter also removed his white motorcycle helmet in order to be less conspicuous. Cassidy soon heard a message over the police radio: Cole was ascending to the tree line. Hunter heard movement in the brush, and signaled to his colleagues.

         The Coles' narrative of the roughly five seconds that followed relies on medical reports, ballistics analysis, and evidence collected on the scene and retrieved from Cole's body.[5] Moments after Hunter signaled to his colleagues, Cole backed out of the brush. He was facing away from the officers, his right arm raised, holding the barrel of the handgun to his right temple. For three to five seconds the officers had an opportunity to yell out to Cole to freeze or drop his gun. But the officers perceived that Cole was unaware of their presence, and remained silent so as not to alert him.[6] Cole began to turn counterclockwise. Around this time either Carson or Cassidy began to issue a command to Cole.[7] Before the officer could warn Cole, however, Hunter fired, followed by Cassidy. Still holding the handgun to his temple, Cole pulled the trigger, firing into his head.

         The officers offer alternative accounts. They agree with each other that moments after Hunter signaled to Carson and Cassidy, Cole backed out from the brush about 10 to 20 feet in front of Hunter. On the day of the incident, Hunter did not specify the position of Cole's hands as he emerged from the brush. Four years later, however, Hunter recalled that Cole's hands were lowered, with the handgun in his right hand held no higher than waist-level. Cassidy, on the other hand, testified that Cole emerged with the handgun held to his head. Carson stated only that he saw Cole emerge from the tree line in front of Hunter, and that he "could not see what the suspect was doing before the shots were fired."

         According to Carson, Hunter then gave Cole a command "about showing his hands or dropping his gun." Cassidy also testified that Hunter issued a command. In his initial statement Cassidy testified that high winds prevented him from hearing Hunter's words. Four years later, however, Cassidy could recollect that Hunter had shouted "[D]rop it!" Hunter himself equivocated on whether he shouted to Cole. Initially, Hunter stated that he had no chance to issue a command. Three days later, Hunter could no longer recollect whether he had or had not yelled to Cole. In a deposition four years after the incident, Hunter did not disagree with his fellow officers' recollection that he had issued a command.

         Hunter and Cassidy testified that Cole turned and pointed his handgun at Hunter.[8] Hunter fired four rounds at Cole. Cassidy fired three. None of the officers recalled Cole discharging his own gun.

         Eyewitnesses offer additional accounts. One witness, William Mackey, standing in a parking lot across the highway, heard one of the officers yell for Cole "to come out." Mackey recalled that when Cole emerged from the trees "roughly five officers" were on the scene, and more than one yelled for Cole to "drop his gun" before the shooting commenced. Mackey also remembered-in a second affidavit, sworn three years later-that Cole had "raise[d] his hand and point[ed] [an] object towards the officers." Another witness, Trent Kornegay, saw Hunter drop to a knee looking into the trees; as Cole emerged, someone said "drop the gun," then shots were fired. A third witness, Steve Ellis, also across the highway, saw Cole emerge, then heard officers yell "repeatedly" for Cole "to drop the weapon and stop" before the shooting commenced. A fourth eyewitness standing in the same parking lot, Jim Owens, testified that Cole's hands remained motionless by his sides during the whole incident, and that no words were spoken or shouted before shots were fired.

         Of the officers' shots, two hit Cole. One round fired by Hunter passed through Cole's left arm, into his torso, fracturing a rib, bruising his lung, and lodging in his back. A second round, also fired by Hunter, grazed his left arm. None of Cassidy's shots struck Cole. A third round entered three inches above Cole's ear from Cole's right, with fragments of the bullet exiting the top of his skull. The entry wound exhibited stippling, that is, discoloration of the skin caused by hot gases and residue released immediately around a discharging firearm. Ballistics analysis indicated that the trajectory of the third round was characteristic of a self-inflicted wound. When copper fragments were recovered from Cole's head, ballistics experts determined they had originated from Cole's handgun.

         The Coles allege that while Cole was unconscious, bleeding "profusely" and "presumably . . . to death," the officers did nothing to help him. When paramedics arrived, Cole experienced cardiac arrest, but was resuscitated. He was then immediately taken to Baylor Hospital in Garland, where he was stabilized. Cole remained hospitalized, recovering from his injuries for months. He survived the shooting, but continues to suffer from serious mental and physical disabilities arising from his injuries.

         Following the shooting, the three officers remained together at the scene, but never offered Cole assistance. The Coles allege that during this time the officers conferred, and agreed to fabricate a story that would insulate Cassidy and Hunter from liability. Eventually, members of the Garland Police Department arrived and took control of the scene, but did not follow the standard procedure of separating witnesses to ensure independent recollections. Instead, members of the Sachse Police Department were allowed to escort Cassidy and Hunter back to their police station. The officers later provided statements to Garland Police Department investigators at the Garland police station. Based on the officers' statements, Cole was charged with the misdemeanor of unlawful carrying of a firearm[9] and the felony of aggravated assault of a public servant.[10] As a result of the assault charge, Cole, incapacitated in intensive care, was placed under house arrest. The Coles incurred substantial legal fees in connection with the charge. Around two years later, Cole received deferred adjudication on the unlawful carrying misdemeanor charge and the District Attorney dismissed the assault charge.

         The Coles brought suit against Carson, Cassidy, and Hunter in the Eastern District of Texas.[11] The officers successfully transferred the case to the Northern District of Texas. The Coles' amended complaint brings three claims relevant here. First, the Coles bring a Section 1983 claim against Cassidy and Hunter, alleging a violation of Cole's Fourth Amendment right against the use of excessive force. Second, they bring a Section 1983 claim against all three officers alleging a violation of Cole's Fourth Amendment right against unreasonable seizures arising from the fabrication of evidence. Third, they bring a Section 1983 claim against all three officers alleging a violation of Cole's Fourteenth Amendment due process rights arising from the same fabrication of evidence.

         The officers moved to dismiss these claims, asserting absolute and qualified immunity defenses. In a January 24, 2014 Memorandum Opinion and Order, the district court denied the officers' motion. Carson alone appealed the denial of the motion in connection with the Coles' Fourth and Fourteenth Amendment claims. The district court stayed the fabrication of evidence claim as to Cassidy and Hunter pending Carson's appeal. The district court allowed limited discovery focused on Cassidy and Hunter's qualified immunity defenses to the Fourth Amendment excessive force claim. Those two officers moved for summary judgment on the Fourth Amendment excessive force claim, again asserting qualified immunity. The district court denied the motion and Cassidy and Hunter appealed.

         We consolidated Cassidy and Hunter's appeal of the denial of summary judgment with Carson's appeal of the denial of the motion to dismiss. On September 25, 2015, we affirmed the district court's denial of summary judgment based on qualified immunity with respect to the Coles' Fourth Amendment excessive force claim against Cassidy and Hunter, and affirmed the district court's denial of the motion to dismiss with respect to the Coles' Fourteenth Amendment due process claim against Carson. With respect to the denial of Carson's motion to dismiss the Fourth Amendment fabrication of evidence claim, we reversed.

         The officers filed a motion for rehearing and en banc review in this court, which we denied. They then petitioned the Supreme Court for a writ of certiorari. On November 28, 2016, the Supreme Court granted certiorari, vacated this court's judgment, and remanded the case for further consideration in light of Mullenix v. Luna, [12] decided in the intervening time. On remand, we called for supplemental briefing and oral argument. The parties' supplemental briefing is complete. We have heard oral argument.


         The doctrine of qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."[13] "Qualified immunity balances two important interests- the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably."[14] Qualified immunity involves not only immunity from liability, but also immunity from suit.[15] The qualified immunity inquiry includes two parts. In the first we ask whether the officer's conduct has violated a federal right; in the second we ask whether the right in question was "clearly established" at the time of the violation, such that the officer was on notice of the unlawfulness of his or her conduct.[16] The officer is entitled to qualified immunity if there is no violation, or if the conduct did not violate law clearly established at the time.[17]

         In the first part of our review we turned to the claim of a constitutional violation for each assertion of the qualified immunity defense. We first held that a reasonable jury could find Hunter and Cassidy violated Cole's Fourth Amendment right against the use of excessive force, and held that this conduct violated clearly established law.[18] Regarding Carson's motion to dismiss, we held that the Coles failed to allege facts sufficient to make out a Fourth Amendment violation in connection with fabrication of evidence, [19] but that their allegations were sufficient to sustain the Fourteenth Amendment due process claim.[20] In connection with the latter claim, we also held that the alleged violation violated clearly established law.[21]

         We will not revisit the first part of the qualified immunity inquiry in connection with any of the Coles' claims, nor the question of clearly established law as regards the Coles' Fourteenth Amendment claim against Carson. We hear this case on remand from the Court for further consideration in light of Mullenix.[22] In Mullenix, the Court reversed a decision of this court in which we had found that a police officer violated clearly established law by shooting a fugitive during a car chase. In its decision the Mullenix Court addressed only the second part of the qualified-immunity inquiry: whether the officer's alleged conduct violated clearly established law.[23] The Court's mandate here reaches only this second part of the qualified immunity inquiry in connection with the Coles' Fourth Amendment claim against Cassidy and Hunter, and, as we need not, we do not reach issues unaddressed by the mandate on remand.[24] We reinstate our prior decision as concerns all other parts of the appeal and address only the existence of clearly established law as it informs the denial of Cassidy and Hunter's motion for summary judgment.

         Turning to that denial, we note that the district court did not weigh the evidence and resolve the factual disputes over the shooting of October 25, 2010, properly so.[25] Rather it asked only whether a jury should "resolve the parties' differing versions of the truth at trial."[26] The district court determined that genuine disputes of fact remained, that these disputes were material, [27] and should be resolved by a jury.

         Our inquiry is more circumscribed. "An order denying a motion for summary judgment is generally not a final decision within the meaning of § 1291 and is thus generally not immediately appealable."[28] However, a denial of summary judgment on the basis of qualified immunity is immediately appealable under the collateral order doctrine.[29] With such an appeal our review is confined to the materiality of factual disputes identified by the district court.[30] We ask whether, if all factual disputes are resolved in the plaintiffs' favor, Cassidy and Hunter are entitled to qualified immunity as a matter of law. If so, the officers are due summary judgment; if not, we affirm the district court.[31] We take facts in a light most favorable to the non-movants, the Coles, and draw all justifiable inferences in their favor.[32] We consider the circumstances leading up to the officers' conduct, [33] but confine our inquiry to those facts knowable to the officers at the time.[34] Within the limited scope of our inquiry, review is de novo.[35]

         The facts as we take them establish that Cole posed no threat to the officers or anyone else at the time Cassidy and Hunter shot him. The officers' limited knowledge of Cole created no reasonable expectation of an immediate violent confrontation: Cole was a high school student distraught over a recent breakup; he had carried his guns to a friend's house; the friend was unable to persuade Cole to part with the handgun, and Cole warned him not to try to take it. Both officers knew that Cole had walked away from two police officers without violent confrontation. At no point did Cassidy or Hunter hear orders to establish a perimeter around Cole, to conceal themselves, or to take cover, nor were there calls for backup from SWAT teams or tactical units to handle the situation. While Cole possessed a handgun, he did nothing to threaten the officers. The officers understood that Cole was unaware of their presence, and Cassidy and Hunter took cover and remained silent so that Cole would remain unaware. When Cole backed out from the brush, he was facing away from the officers. Moreover, they could see that the handgun was pointed at Cole's head. The weapon was in this position as Cole turned counterclockwise, and remained trained there until he was shot. Hunter and Cassidy opened fire before Cole had turned to face them, and before he registered their presence. At no time did Cole pose, or reasonably appear to pose, an immediate threat to the officers or anyone other than himself.

         The only question we answer is whether, given these facts, Cassidy and Hunter violated clearly established law. Here, we have the guidance the Court provided in Mullenix. In that case, the Court reviewed a denial of qualified immunity to an officer who had shot and killed a fugitive in a car chase. This court had decided that the officer violated the clearly established rule that deadly force was prohibited "against a fleeing felon who does not pose a sufficient threat of harm to the officer or others."[36] The officer in Mullenix reasonably perceived some threat of harm, but we had held the threat was not "sufficient." The Supreme Court reversed our decision. It found that the rule we articulated lacked a referent to define the "sufficiency" of threats.[37]Precedents provided a "hazy legal backdrop," at best.[38] Given these deficient sources, an officer could not reasonably derive an applicable rule to govern his or her conduct in the situation.[39] Finding that we had defined the applicable rule with too much "generality, "[40] the Court reversed our holding that the officer had violated clearly established law.[41]

         It is significant that the Court's focus in Mullenix was upon generality. In some conceptual sense, a legal rule is necessarily general: it applies not only to the case in which it is articulated, but to all like cases. The Mullenix Court does not repudiate generality in this sense. Rather it repudiates a second variety of generality, one that does not reach all legal rules: generality as indeterminacy.[42] A rule that is general in that it is indeterminate cannot be "clearly established," because a reasonable officer attempting to interpret and apply that rule in particularized circumstances will face legal uncertainty. The officer cannot be on notice of the proper course of action. In this scenario, Mullenix tells us that the qualified immunity doctrine insulates the officer from liability.[43] On the other hand, a reasonable officer is capable of reasoning analogically from a determinate and categorical rule to conclude that given conduct is prohibited.[44] Such rules, once articulated, are clearly established law.

         Here, a determinate and categorical rule applied to the facts facing Cassidy and Hunter: officers are prohibited from using deadly force against a suspect where the officers reasonably perceive no immediate threat. This no-threat rule was clearly established as early as 1985, when the Court articulated it in Tennessee v. Garner. In that case an officer shot a suspect in the absence of a reasonable perception of threat.[45] Analyzing the case, the Garner Court began by describing a widely applicable standard governing the constitutionality of seizures, balancing the intrusiveness of a seizure against government interests.[46] But it did not stop there. The Court also articulated a bright-line rule to govern the limit condition in which governmental officers face no threat from a suspect: "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 force to do so."[47] The rule is categorical and determinate. It is general in the first sense of the term, but not in the second sense of indeterminacy.

         By October 25, 2010 the no-threat rule had been clearly established for twenty-five years, and had been applied many times in this circuit. For example, in an unpublished 2008 decision, Graves v. Zachary, this court denied an officer qualified immunity for shooting a suspect who posed no threat to the officers or others.[48] We stated that where a suspect posed no threat, "the violation of his constitutional rights would have been obvious even without a body of relevant case law . . . . Under general precedents such as Garner, [the officer] should have known that his use of force was excessive."[49] Similarly, in an unpublished 2010 decision, Reyes v. Bridgewater, this court denied qualified immunity to an officer who shot a suspect who was armed with a knife but made no threatening gestures or motions towards the officer.[50] We invoked the "core, established rule" from Garner ...

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