William Sullivan v. City of Round Rock, Tex

Case: 15-51204 Document: 00513678809 Page: 1 Date Filed: 09/14/2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 15-51204 September 14, 2016

Lyle W. Cayce

Clerk

AARON BROTHERS,

as Independent Executor of the Estate of William Slade Sullivan;

ROSEMARY CLAUS SULLIVAN,

Plaintiffs–Appellees,

versus

OFFICER NATHAN J. ZOSS; OFFICER KRISTEN A. MAYO;

OFFICER AARON P. BALLEW,

Defendants–Appellants.

Appeal from the United States District Court

for the Western District of Texas

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

* Carolyn Dineen King, Circuit Judge, concurs in the judgment only.

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No. 15-51204

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 Sul-

livan’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 had run up a bill of over

$400. When he left at about 3:30 a.m., Rick’s employees offered to pay for a

cab to take him to a nearby hotel. But Sullivan refused, instead asking the

employees to drive him and his truck home, as Rick’s floor manager had prom-

ised at the start of the evening; the manager reneged on his promise. Sullivan

therefore demanded his truck keys, which he had entrusted to a Rick’s em-

ployee earlier in the evening, so that he could charge his cell phone and call a

friend to take him home.

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 conversa-

tion, 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.

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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 42 U.S.C. § 1983, alleg-

ing excessive force in violation of the Fourth and Fourteenth Amendments. 2

1 Though only 5’10”, Sullivan weighed approximately 350 pounds.

2After Sullivan’s death, Brothers, as independent executor of Sullivan’s estate, was

substituted as the proper plaintiff. Sullivan’s mother was also added as a plaintiff. The

complaint originally named two other police officers, who were dismissed after the plaintiffs

ascertained that they had not been involved in Sullivan’s injury. Amended complaints added

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The officers moved for summary judgment based on qualified immunity. The

district court denied the motion, but disclaimed to rule directly on the defense,

stating that it wanted to wait until “the record is fully developed through trial”

to rule on qualified immunity.

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 un-

reasonable 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 take his word for it but should view ‘the facts in the light depicted by the

Rick’s and its parent company as defendants.

3 Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012) (quoting Carnaby v. City of

Hous., 636 F.3d 183, 187 (5th Cir. 2011)).

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videotape.’” 4

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 evi-

dence 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 con-

duct 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 dem-

onstrates 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

4 Id. (quoting Harris, 550 U.S. at 380–81).

5In particular, we accept plaintiffs’ allegations that the officers were aware both that

Sullivan was morbidly obese and that he was handicapped and was morbidly obese and that

he had back problems; his neck and shoulders were hunched over, and he was unable to turn

his head without turning his entire body. Moreover, although Sullivan did not park in a

handicapped parking space, a handicapped placard hung from his rearview mirror.

6 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)).

7Cowart v. Erwin, No. 15-10404, --- F.3d ---, 2016 U.S. App. LEXIS 16736, at *16 (5th

Cir. Sept. 13, 2016) (footnote omitted).

8 See Plumhoff v. Rickard, 134 S. Ct. 2012, 2019 (2014) (“[Petitioners] contend that

their conduct did not violate the Fourth Amendment and, in any event, did not violate clearly

established law. Thus, they raise legal issues . . . .); Harris, 550 U.S. at 381 n.8 (“At the

summary judgment stage . . . once we have determined the relevant set of facts and drawn

all inferences in favor of the nonmoving party to the extent supportable by the record, the

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At the first step of the qualified-immunity inquiry, the record shows that,

even accepting (as we do) the plaintiffs’ version of the facts, the officers did not

violate Sullivan’s constitutional rights. Although plaintiffs allege excessive

force under the Fourth and the Fourteenth Amendments, 9 we are instructed

to analyze “all claims that law enforcement officers have used excessive force—

deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’

of a free citizen . . . under the Fourth Amendment and its ‘reasonableness’ stan-

dard . . . .” Graham v. Connor, 490 U.S. 386, 395 (1989). We thus consider

only whether the officers violated Sullivan’s Fourth Amendment right to be

“‘secure in [his] person[] . . . against unreasonable . . . seizures’ of the person.”

Id. at 394.

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

reasonableness of [the officer’s] actions—or, in Justice Stevens’ parlance, ‘whether [the plain-

tiff’s] actions have risen to a level warranting deadly force’—is a pure question of law.” (some

alterations in original) (internal citations omitted)).

9 The officers assert that plaintiffs have also alleged deprivation of “rights under the

Americans with Disabilities Act” (“ADA”). The plaintiffs, however, deny bringing any claim

under the ADA, and the complaints do not assert any cause of action under it, whether

against the officers or the city. Issues pertaining to the ADA are thus not properly before

this court.

The irrelevance of the ADA notwithstanding, the district court issued a ruling on the

applicability of Title II of the ADA. The officers lack standing to appeal that ruling because

Title II does not apply to individuals. The city will be able to appeal that ruling if it suffers

an adverse final judgment.

10 Hogan, 722 F.3d at 734 (quoting Flores v. City of Palacios, 381 F.3d 391, 396 (5th

Cir. 2004)). An equivalent formulation found in other cases is “(1) injury, (2) which resulted

directly and only from a use of force that was clearly excessive, and (3) the excessiveness of

which was clearly unreasonable.” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per

curiam) (quoting Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005)).

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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 reasonable-

ness 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 sus-

pect 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 reasona-

ble officer on the scene, rather than [judge] with the 20/20 vision of hindsight.”

Id. 11 “The calculus of reasonableness must embody allowance for the fact that

police officers are often forced to make split-second judgments—in circum-

stances that are tense, uncertain, and rapidly evolving—about the amount of

force that is necessary in a particular situation.” Id. at 396–97. “As in other

Fourth Amendment contexts, however, the ‘reasonableness’ inquiry in an ex-

cessive force case is an objective one: the question is whether the officers’

actions are ‘objectively reasonable’ in light of the facts and circumstances con-

fronting them, without regard to their underlying intent or motivation.”

Id. at 397.

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

11Accord Ramirez v. Knoulton, 542 F.3d 124, 129–30 (5th Cir. 2008) (“‘A creative judge

engaged in post hoc evaluation of police conduct can almost always imagine some alternative

means by which the objectives of the police might have been accomplished.’ United States v.

Sharpe, 470 U.S. 675, 686–87 . . . (1985). ‘The question is not simply whether some other

alternative was available, but whether the police acted unreasonably in failing to recognize

or to pursue it.’ Id. at 687.”).

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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 rea-

sonable 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

12 See Smith v. Ball State Univ., 295 F.3d 763, 769 (5th Cir. 2002) (“Smith posed a

threat to himself, the officers and the general public, even after Officer Foster turned off

Smith’s vehicle and attempted unsuccessfully to communicate with him. Indeed, contrary to

Smith’s assertions, his unresponsiveness did not neutralize the safety threat, but rather exac-

erbated it by adding an element of unpredictability.”).

13See Deville, 567 F.3d at 167 (“Officers may consider a suspect’s refusal to comply

with instructions during a traffic stop in assessing whether physical force is needed to effec-

tuate the suspect’s compliance.”).

14 In the district court, plaintiffs maintained only that the officers employed excessive

force in pulling Sullivan from his vehicle. They did not allege excessive force in handcuffing

him, so that argument has been waived. See Jethroe v. Omnova Solutions, Inc., 412 F.3d 598,

601 (5th Cir. 2005).

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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 Sulli-

van would not use his feet to brace his fall. Moreover, given the speed at which

Sullivan hit the ground, a reasonable officer could not have been expected

immediately to recognize that Sullivan was about to hit the ground, that the

officers would be unable to lower his 350 pounds in a controlled manner, or

that they should let go of his arms so that he could use them to catch himself.

We reject plaintiffs’ characterization of the force as “tantamount to

deadly force” merely because it resulted in serious injury. Force is not neces-

sarily 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

15 Cf. Mullenix v. Luna, 136 S. Ct. 305, 312–13 (2015) (Scalia, J., concurring) (“It does

not assist analysis to refer to all use of force that happens to kill the arrestee as the appli-

cation of deadly force. The police might, for example, attempt to stop a fleeing felon’s car by

felling a large tree across the road; if they drop the tree too late, so that it crushes the car

and its occupant, I would not call that the application of deadly force. Though it was force

sufficient to kill, it was not applied with the object of harming the body of the felon.”).

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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 pro-

ceedings as needed.

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