David Collie v. Hugo Barron

Case: 17-10935 Document: 00514623644 Page: 1 Date Filed: 08/30/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 17-10935

Fifth Circuit

FILED

August 30, 2018

DAVID B. COLLIE, Lyle W. Cayce

Clerk

Plaintiff - Appellant

v.

HUGO BARRON,

Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:17-CV-211

Before STEWART, Chief Judge, and JONES and ENGELHARDT, Circuit

Judges.

PER CURIAM:*

This appeal addresses the alleged use of excessive force when an off-duty

policeman shot Plaintiff-Appellant David Collie (“Collie”) during the response

to a robbery call. The district court granted the officer’s motion for summary

judgment on the basis of qualified immunity and dismissed the claims against

him. Although this tragic case exemplifies an individual’s being in the wrong

place at the wrong time, under current governing law, we must AFFIRM.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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No. 17-10935

I.

On the night of July 27, 2016, Officer Hugo Barron (“Barron”) and his

colleague Deputy Vanessa Flores were working a 7 p.m. to 3 a.m. shift

patrolling a private apartment complex at 3000 Las Vegas Trail in Fort Worth,

Texas. This part-time work was sanctioned by the police department, and

Barron and Flores were both wearing their police uniforms, driving a marked

patrol car, and monitoring the local dispatch alerts.

Just before midnight, a robbery was reported at a gas station three

blocks from where Barron and Flores were working. The two suspects fled on

foot toward a nearby apartment complex. The Fort Worth Police Department

issued an alert across the police radios and in-car computers. The report

advised the two black men were shirtless and one was armed with a silver gun.

The report stated in full:

ACTORS ARE 2 BM’S WHO LEFT ON FOOT TO AN APT

COM[P]LEX ON NORMANDALE. CP HAD MET THESE

ACTORS ON FACEBOOK TO BUY SHOES. ACTORS BM NO

SHIRT BASKETBALL SHIRT AND BM NO SHIRT KHAKI

PANTS. 1 ACTOR HAD A SMALL SILVER HANDGUN ...

MEDSTAR REF.

Barron and Flores responded to the call and began searching the area.

They pulled into a nearby apartment complex where Collie, wearing shorts and

no shirt, was walking.

According to Officer Barron, although the area was lit by a nearby street

light and the beam of his headlights, it was still relatively dark. Because Collie

fit the description of one of the suspects, and Officer Barron knew one robber

was armed, Barron drew his handgun. There is no audio of the encounter.

Collie claims the officers were calling conflicting commands. Barron’s affidavit

states, and video confirms, that Collie continued to walk away from the officers

with his hands in his pockets. Officer Barron stated that when Collie removed

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his hand from his pocket and swung it upward and over in the direction of

Officer Flores, he thought he saw the glint of a gun. Officer Barron fired two

shots, one of which struck Collie, who immediately fell to the ground. Collie

had no gun, but a silver box cutter was retrieved from the grass nearby. The

bullet left Collie paralyzed from the waist down.

Collie sued Fort Worth Police Department Officers Barron, Harrington,

and Rohloff; Chief of Police Fitzgerald; Tarrant County Sheriff’s Deputy

Vanessa Flores; the City of Fort Worth; Tarrant County; and 11 Doe

Defendants. Collie voluntarily dismissed his claims against Deputy Flores and

the Chief of Police, and the district court dismissed all remaining claims except

for the excessive force claim against Officer Barron. Officer Barron moved to

stay the civil proceeding while the grand jury deliberated on the possibility of

criminal action. The court denied the request for a stay, but did grant a stay

on discovery to allow Officer Barron to move for summary judgment on the

ground of qualified immunity. The district court granted Officer Barron’s

motion, and Collie appeals the decision and the district court’s denial of

discovery before summary judgment.

II.

This court reviews a district court’s grant of summary judgment de novo,

viewing the evidence in the light most favorable to the non-movant. Cantrell

v. City of Murphy, 666 F.3d 911, 922 (5th Cir. 2012) (citation omitted).

Judgment is proper if there are no genuine issues of material fact and the

movant is entitled to judgment as a matter of law. Hanks v. Rogers, 853 F.3d

738, 743 (5th Cir. 2017) (citation omitted). In cases where qualified immunity

is raised as a defense “the burden shifts to the plaintiff, who must rebut the

defense by establishing a genuine fact issue as to whether the official’s

allegedly wrongful conduct violated clearly established law.” Id. at 744

(internal quotation marks and citation omitted).

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A denial of the right to take discovery before entering summary

judgment is reviewed for abuse of discretion. Resolution Trust Corp. v. Sharif-

Munir-Davidson Dev. Corp., 992 F.2d 1398, 1401 (5th Cir. 1993).

III.

Qualified immunity is a defense available to government officials to

provide them some shield from “undue interference with their duties and from

potentially disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800,

806, 102 S. Ct. 2727, 2732 (1982). A plaintiff must show that an official

(1) violated a clearly established constitutional right, and (2) “that right was

clearly established at the time of the misconduct[.]” Manis v. Lawson, 585 F.3d

839, 843 (5th Cir. 2009).

Under the first prong, 1 claims of excessive force made against law

enforcement officers are subject to the Fourth Amendment’s “reasonableness”

standard, which calls for “a careful balancing of the nature and quality of the

intrusion . . . against the countervailing governmental interests at stake.”

Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871 (1989) (internal

quotation marks and citations omitted). There is no doubt that innocent

citizens have a clearly established right not to be shot by police officers, but

the questions for summary judgment purposes are whether the officer acted

“unreasonably” under the circumstances, and whether reasonable officers

could differ on the lawfulness of an officer’s actions. Mullenix v. Luna,

136 S. Ct. 305, 308 (2015).

A. Officer Barron’s actions were objectively reasonable.

Collie argues that under the first prong of the qualified immunity

defense, there is a genuine, material fact issue that Officer Barron violated his

1The two-pronged inquiry may be conducted in any sequence. Manis, 585 F.3d at 843

(citations omitted).

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Fourth Amendment right to be free of objectively unreasonable excessive force.

A plaintiff must show “(1) an injury, (2) which resulted directly and only from

the use of force that was clearly excessive, and (3) the excessiveness . . . was

clearly unreasonable.” Manis, 585 F.3d at 843 (internal quotation marks and

citations omitted). Collie attempts to rely on his own affidavit and the

testimony of his expert witness in photogrammetry to argue that there is a

genuine dispute over the reasonableness of Officer Barron’s action. Based on

these pieces of evidence, Collie asserts that, contrary to the officer’s affidavit,

he did not point directly at Flores, and he was not holding a box-cutter when

he was shot. Even if Collie’s evidence is accurate, however, it would not

preclude summary judgment. The district court noted that Collie did not

“dispute that he kept moving or that he raised and pointed his arm,” and the

dash cam footage supports those facts. Because “the test is whether Barron

acted reasonably in light of what he perceived,” and “both Flores and Barron

perceived” that Collie had a gun (as supported by Collie’s concession), the

district court correctly viewed his proffer as immaterial to the constitutional

issue.

Collie renews his objection on appeal that reality trumps Barron’s

perception, and disputed interpretations of the dash cam video create genuine

issues that should preclude summary judgment. But in Scott v. Harris,

550 U.S. 372, 380-81, 127 S. Ct. 1769, 1776 (2007), the Supreme Court held

that dash cam footage was so clear no reasonable jury could accept the

plaintiff’s version of events. Here, too, a review of the video confirms that even

without sound or metadata, Officer Barron’s actions were reasonable under the

circumstances. Unlike the video at issue in Ramirez v. Martinez, 716 F.3d 369,

374 (5th Cir. 2013), which began after the altercation had started and was

cluttered and confused by multiple, indistinguishable people, Officer Barron’s

dash cam footage clearly shows Collie moving away from the officers, with his

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hands initially in his pockets before he raised and pointed them in the direction

of Officer Flores.

An officer’s use of deadly force is justified when the officer reasonably

perceives an immediate threat of serious bodily harm or death to themselves

or to others. See Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011) (internal

quotation marks and citation omitted). Neither post-incident proof that Collie

carried no weapon, nor the fact that Collie never directly pointed at Flores

changes this analysis. Nor do the stop-action shots made by Collie’s expert

from the dash cam video change this analysis, because they give a false

perspective on events that transpired in a few seconds. The district court

properly focused on whether Officer Barron’s actions were justified in the heat

of the moment. See Ramirez v. Knoulton, 542 F.3d 124, 130 (5th Cir. 2008)

(“The Fourth Amendment does not require police officers to wait until a suspect

shoots to confirm that a serious threat of harm exists.”) (quoting Elliott v.

Leavitt, 99 F.3d 640, 643 (4th Cir. 1996)); Salazar-Limon v. City of Houston,

826 F.3d 272, 278-79 (5th Cir. 2016) (finding no other issues were important

in a case where an officer shot a combative, drunk suspect who was walking

away because the suspect reached for his waistband; thus, the officer’s decision

to shoot was not a use of unreasonable or excessive deadly force.). The district

court’s determination that Officer Barron acted reasonably in light of the facts

before him is well supported.

B. Collie failed to show Officer Barron violated clearly

established law.

Under the second prong of the qualified immunity analysis, Collie must

show the law was clearly established, and to do this he was required to produce

cases where the qualified immunity defense has failed under similar

circumstances. White v. Pauly, 137 S. Ct. 548, 552 (2017). Collie fails to

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address the Supreme Court’s explicit directive in Pauly that although claims

of excessive force do not require a case that is directly on point, the standard

hugs the line closely by requiring a case “under similar circumstances.” Id.

Instead, Collie relies on Graham v. Connor for the general rule that an officer’s

actions must be objectively reasonable. He then contends that because he did

not fit more complete descriptions of the suspects, did not point in the direction

of Deputy Flores, and did not have a weapon in his hand, Officer Barron’s claim

to believe his partner’s life was in danger should be given no more weight than

Collie’s own testimony. We note that the summary judgment evidence does

not show that the officers had received the height/weight/age descriptions of

the suspects at the time they encountered Collie. Collie’s position also excludes

the relevant facts that he was a shirtless black male on foot in the near vicinity

of the robbery who encountered the officers in a dimly lit area and did not stop

in response to their commands. Accordingly, Collie’s argument failed to

discharge his legal burden to “find a case in his favor that does not define the

law at a ‘high level of generality.’” Vann v. City of Southaven, Miss., 884 F.3d

307, 310 (5th Cir. 2018) (quoting Cass v. City of Abilene, 814 F.3d 721, 732-33

(5th Cir. 2016)). Indeed, the Supreme Court recently reiterated: “Although

this Court’s caselaw does not require a case directly on point for a right to be

clearly established, existing precedent must have placed the statutory or

constitutional question beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148,

1152 (2018) (internal quotation marks and citation omitted). The district court

correctly pointed out this deficiency in Collie’s argument.

C. The district court did not abuse its discretion in denying

Collie the right to take discovery.

Contending that the district court abused its discretion in denying him

the opportunity to take discovery before it entered summary judgment, Collie

decries that practice. He fears it will furnish “rogue officers and poorly

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managed police departments” a “virtual how-to booklet” to shield themselves

from accountability. Collie asserts other Fort Worth Police officers had more

information about the events that took place before Officer Barron shot Collie.

Thus, discovery would have permitted him to prove Officer Barron either knew

or should have known Collie did not fit the description of the robbery suspects

and could not be the armed suspect.

As relevant here, the goals of qualified immunity counsel no more than

a minimum of necessary discovery before the court determines whether the

defense attaches: “Until this threshold immunity question is resolved,

discovery should not be allowed.” Harlow, 457 U.S. at 818, 102 S. Ct. at 2738.

This court has previously recognized “[o]ne of the most salient benefits of

qualified immunity is protection from pretrial discovery.” Backe v. LeBlanc,

691 F.3d 645, 648 (5th Cir. 2012) (citation omitted). The Supreme Court has

emphatically directed, “qualified immunity is an immunity from suit rather

than a mere defense to liability.” Pearson v. Callahan, 555 U.S. 223, 231,

129 S. Ct. 808, 815 (2009) (internal quotation marks and citation omitted).

Collie’s position fails in several ways – beginning with the fact that he

failed to preserve this argument for appeal. Federal Rule of Civil

Procedure 56(d) requires a non-movant to present affidavits and evidence if he

feels he needs discovery to properly defend against a summary judgment

motion. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 162 (5th Cir. 2006)

(“[A] party may not simply rely on vague assertions that additional discovery

will produce needed, but unspecified, facts.” (internal quotation marks and

citation omitted)). Collie never sufficiently invoked Rule 56(d) in the trial

court. Further, “[w]hen a defendant pleads the defense of qualified immunity,

the district court may ban discovery at this threshold pleading stage and . . .

need not allow any discovery unless it finds that plaintiff has supported his

claim with sufficient precision and factual specificity to raise a genuine issue

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as to the illegality of defendant’s conduct at the time of the alleged acts.”

Brown v. Manning, 244 F.3d 133, at *4 (5th Cir. 2000) (unpublished) (quoting

Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995) (en banc)). Here, the

parties’ competing evidence convinced the court that Collie could not overcome

the defense of qualified immunity. The court did not abuse its discretion or

misapply the law when denying additional discovery.

For these reasons, the district court’s judgment is AFFIRMED.

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