Creech Poole v. City of Shreveport

Case: 21-30015 Document: 00516008948 Page: 1 Date Filed: 09/10/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

September 10, 2021

No. 21-30015 Lyle W. Cayce

Clerk

Janice Irene Creech Poole, Independent Administrator, on behalf of

Brian Steven Poole Estate,

Plaintiff—Appellee,

versus

City of Shreveport; Jon Briceno,

Defendants—Appellants.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:18-CV-1125

Before Stewart, Costa, and Willett, Circuit Judges.

Gregg Costa, Circuit Judge:

In this excessive force case, the district court held that a jury could

conclude that an officer shot a citizen four times without warning while the

citizen was turning away and empty-handed. Because genuine disputes exist

on those three material facts—whether the officer warned before shooting,

whether the citizen had turned away from the officer, and whether the officer

could see that the citizen was unarmed—the court denied a summary

judgment motion invoking qualified immunity. The officer now brings this

interlocutory appeal. We agree with the district court that there was a

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No. 21-30015

violation of clearly established law if the jury resolves the factual disputes in

favor of the plaintiff.

I.

In the wee hours of March 31, 2017, 911 operators in Shreveport

received a call from a woman who reported that a small silver truck had

driven down her street several times. Shreveport City Police dispatched a

patrol unit to her address. Corporal Jon Briceno also responded to the

dispatch call.

While driving through the neighborhood, Briceno came across a small,

light-colored truck stopped at a stop sign, with Brian Poole in the driver’s

seat. As Poole attempted to turn, Briceno activated his lights and sirens,

intending to initiate a traffic stop. Instead of stopping, Poole straightened the

car and drove into the parking lot of a nearby golf course, then back out onto

the street. For the next fifteen minutes, Poole drove slowly through the

residential area, followed by Briceno and, eventually, six other police cars.

During this low-speed pursuit, Poole disobeyed traffic signals, went through

two yards, and drove on the wrong side of the road to avoid spike strips the

police deployed. Poole later explained that he “was having issues with

suicidal thoughts” and drug use and had kept driving to avoid a parole

violation, which would mean getting kicked out of his sober living home.

When Poole finally came to a stop, he hastily exited his vehicle and

reached into the bed of his truck, retrieving nothing. As he did so, Briceno

pulled up behind Poole and jumped out of his police car so quickly that he

failed to put it in park. Another officer stopped behind Briceno.

The parties provide competing accounts of what happened next.

Briceno claims that as he got out of his vehicle and drew his weapon,

he commanded Poole to “show me your hands.” Briceno maintains he could

not see Poole’s hands after Poole reached into the bed of the truck and

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thought Poole intended to harm him or other officers on the scene. But Poole

testified that, in his suicidal state, he had reached into the truck bed to grab a

soda so that he could take a whole bottle of prescription pills. Poole said that

he ran out of time to retrieve the drink and so he decided to get back into the

truck and keep driving. He did not recall hearing any commands from

Briceno.

The dashcams from two patrol cars captured this interaction and the

moments that followed. 1 The footage shows that after Poole reached into the

truck bed, his hands were empty. Poole paused for about a second with his

right hand on the edge of the pickup’s bed and his left hand attempting to

open the driver-side door. Then, as Poole managed to open the door, Briceno

shuffled into a shooting stance and called out something too garbled to

decipher.

As Poole turned his back to Briceno and began to lower himself into

the driver’s seat, shots rang out. Briceno fired six times, striking Poole with

four bullets in his back and thigh.

After the shooting, Poole was arrested and later pleaded guilty to

Aggravated Flight from an Officer. See La. Stat. Ann. § 14:108.1©.

Poole then sued Briceno and the City of Shreveport for excessive force

in state court. 2 After Pool clarified that he was bringing a federal Fourth

Amendment claim in addition to state tort claims, the defendants removed

the case to federal court. Ultimately, Poole brought: a section 1983 claim

1

A composite video featuring footage from both dashcams can be viewed at the

following link: https://www.ca5.uscourts.gov/opinions/pub/21/21-30015.mp4.

2

Poole died during the pendency of this case. His estate, which is now pursuing

the case, is represented by his mother, Janet Creech Poole.

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against Briceno for excessive force; state-law tort claims against Briceno; and

federal and state claims against the City.

The defendants moved for summary judgment. Their motion

asserted various grounds for dismissal, including that Briceno was entitled to

qualified immunity and that Heck v. Humphrey, 512 U.S. 477 (1994), barred

the suit because Poole’s claims would impugn the validity of his conviction

for fleeing. The defendants also argued that Poole failed to identify a policy

or practice that would make the City liable for any constitutional violation.

The district court dismissed Poole’s federal claims against the City

but determined that genuine issues of material fact prevented it from granting

qualified immunity to Briceno. It further held that Heck did not preclude

Poole’s claims because at the time of the shooting, Poole was not a driver

refusing a police officer’s command to stop his vehicle—the offense to which

he pleaded guilty. The court also denied summary judgment on Poole’s

state-law claims against Briceno and the City.

The defendants now bring this interlocutory appeal, challenging the

district court’s denial of qualified immunity and its Heck ruling. 3

II.

Qualified immunity shields officers from liability unless their conduct

violates a clearly established federal right of which a reasonable person would

have known. Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam). In

addition to granting this substantive protection, courts have attached

meaningful procedural advantages to the doctrine, such as the right to an

interlocutory appeal when the district court denies immunity. See Mitchell v.

3

There is no interlocutory jurisdiction to review the municipal liability ruling as it

does not turn on qualified immunity. See Trent v. Wade, 776 F.3d 368, 388 (5th Cir. 2015).

Indeed, the plaintiff does not attempt to appeal that ruling at this time.

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Forsyth, 472 U.S. 511, 527–30 (1985); see generally William Baude, Is Qualified

Immunity Unlawful?, 106 Calif. L. Rev. 45, 84 (2018) (“[A] series of

Supreme Court decisions have also given qualified immunity special status

as a matter of civil procedure.”).

But there is an important limit on our interlocutory review—a limit

that this appeal largely turns on. With one exception discussed below, we

cannot question the district court’s assessment of “whether there is enough

evidence in the record for a jury to conclude that certain facts are true.” Cole

v. Carson, 935 F.3d 444, 452 (5th Cir. 2019) (en banc) (quoting Trent v. Wade,

776 F.3d 368, 376 (5th Cir. 2015)); see Johnson v. Jones, 515 U.S. 304, 313–14

(1995). We only review whether the factual disputes identified by the district

court are material to the denial of qualified immunity—that is, whether the

factual disputes viewed in favor of the plaintiff make out a violation of clearly

established law. Amador v. Vasquez, 961 F.3d 721, 726 (5th Cir. 2020).

The district court denied qualified immunity after finding three

factual disputes a jury must resolve:

1. Whether Briceno warned Poole before firing;

2. Whether Poole was turned away from Briceno during the shooting;

and

3. Whether Briceno could see that Poole’s hands were empty.

Once it determined that a jury could find that Briceno shot Poole in the back,

without warning and knowing his hands were empty, the district court readily

concluded that such conduct would violate clearly established law.

Given the manifest unreasonableness of shooting an individual the

officer can see is unarmed and not aggressive, Briceno understandably tries

to push back on these findings. But his argument that the district court

should have accepted his account of the incident runs up against our inability

at this stage to review the existence of fact disputes. Briceno argues that the

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angle of the dashcam video does not show his view of Poole, and thus

concludes that the district court had to accept his testimony that he did not

see Poole’s empty hands. He cites cases granting an immunity defense

because the court found no evidence to counter the officer’s testimony about

what he saw. See Manis v. Lawson, 585 F.3d 839, 844 (5th Cir. 2009);

Ontiveros v. City of Rosenberg, 564 F.3d 379, 383 (5th Cir. 2009). Yet in

neither of those cases was our review restricted to focusing on the materiality

of factual disputes found by the district court as opposed to the existence of

those disputes. Ontiveros was an appeal from a final judgment granting

summary judgment to the officer. 564 F.3d at 382. Although Manis was an

interlocutory appeal, we had the ability to “scour the record and determine

what facts the plaintiff may be able to prove at trial” because the district court

only issued a conclusory ruling that “disputed issues of material fact” exist.

585 F.3d at 843 (first quotation from Thompson v. Upshur Cnty., 245 F.3d 447,

456 (5th Cir. 2001)).

Here, the district court’s finding of factual disputes was far from

conclusory. It specified three fact disputes a jury would need to resolve. Our

general inability to review the existence of fact disputes thus applies.

We did mention, however, an exception to this rule. On interlocutory

review, a court may consider video recordings in determining whether a

factual dispute exists. See Scott v. Harris, 550 U.S. 372, 380–81 (2007)

(encouraging courts of appeals to “view[] the facts in the light depicted by

the videotape” and granting immunity defense when that video “blatantly

contradicted” the plaintiff’s testimony); see also Curran v. Aleshire, 800 F.3d

656, 663–64 (5th Cir. 2015) (recognizing Scott as an exception to the usual

prohibition on interlocutory review of the genuineness of factual disputes).

But this exception hinders rather than helps Briceno’s appeal. The dashcam

video shows that Poole was moving away from Briceno with his back turned

when he was shot. It also shows that his hands were visible and empty before

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the shots were fired. Although Briceno argues that the video does not show

the exact angle at which he was looking at Poole, it is close enough to

Briceno’s vantage point—Briceno was less than ten feet away from Poole—

to be probative of what he saw. Evidence need not be conclusive to be

relevant. See Fed. R. Evid. 401(a) (explaining that evidence is relevant if

“it has any tendency to make a fact more or less probable than it would be

without the evidence”). The district court did not hold that the video

required a finding that Briceno shot a man he could see was unarmed. It only

held that a jury could draw that conclusion from the video. We agree. As a

result, this is not a case of no evidence to counter the officer’s testimony. It

is a case in which evidence the Supreme Court has recognized as especially

compelling could be viewed as contradicting the officer’s testimony. 4

Our review of the video evidence thus confirms what the district court

recognized: there is a factual dispute about whether Briceno gave a warning

before shooting, whether Poole was turned away during the shooting, and

whether it was apparent that Poole’s hands were empty.

That brings us to the issue we do have full authority to review on

interlocutory appeal—whether those fact disputes are material to the

4

This case is thus distinguishable from others reversing denials of qualified

immunity based on video evidence. Briceno draws our attention to a recent Sixth Circuit

decision. See Cunningham v. Shelby Cnty., 994 F.3d 761 (6th Cir. 2021). Cunningham held

that it was error for the district court to find a factual dispute based on screenshots of a

dashcam video when the video itself was available, concerned that screenshots do not

reflect the reality of a rapidly evolving scene. Id. at 766–67. Here the district court did not

rely on screenshots in finding a fact dispute; it properly looked to the video itself.

Briceno also points to another recent excessive force case involving Shreveport.

Tucker v. City of Shreveport, 998 F.3d 165 (5th Cir. 2021). But the Tucker video showed

numerous aggressive acts by the plaintiff, culminating in his physically struggling with the

officers trying to arrest him. Id. at 179–81. Poole did not use any physical force against

Briceno. What is more, Tucker did not involve officers’ use of deadly force, which requires

greater justification than using physical force to subdue an individual physically resisting

arrest. See Romero v. City of Grapevine, 888 F.3d 170, 176 (5th Cir. 2018).

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excessive force question. All three issues are material. Even when a suspect

is armed, a warning must be given, when feasible, before the use of deadly

force. Cole, 935 F.3d at 453 (citing Tennessee v. Garner, 471 U.S. 1, 11–12

(1985)). Common sense, and the law, tells us that a suspect is less of a threat

when he is turning or moving away from the officer. Roque v. Harvel, 993

F.3d 325, 339 (5th Cir. 2021); Hanks v. Rogers, 853 F.3d 738, 746 (5th Cir.

2017). And whether the suspect is armed is often the key factor in

determining if a threat to the officer justifies the use of deadly force. See

Garner, 471 U.S. at 11. That is why the district court’s finding that a jury

could conclude Poole was visibly unarmed when shot is so important. It

distinguishes this case from “furtive gesture” cases in which the officer

could reasonably fear that the suspect was about to pull a gun from a

waistband or other hidden location. See Batyukova v. Doege, 994 F.3d 717 (5th

Cir. 2021); Manis, 585 F.3d at 839; Ontiveros, 564 F.3d at 379.

It should go without saying that it is unreasonable for an officer to

“seize an unarmed, nondangerous suspect by shooting him dead.” See

Garner, 471 U.S. at 11 (stating that use of deadly force is excessive unless “the

officer has probable cause to believe that the suspect poses a threat of serious

physical harm, either to the officer or to others”); Roque, 993 F.3d at 329;

Waller v. Hanlon, 922 F.3d 590, 601 (5th Cir. 2019); Romero v. City of

Grapevine, 888 F.3d 170, 176 (5th Cir. 2018); Lytle v. Bexar Cnty., 560 F.3d

404, 417 (5th Cir. 2009). Even Briceno concedes that an officer violates

clearly established law if he shoots a visibly unarmed suspect who is moving

away from everyone present at the scene. See Garner, 471 U.S. at 11; Roque,

993 F.3d at 339; Waller, 922 F.3d at 601; Lytle, 560 F.3d at 417–18; see also

Cole, 935 F.3d at 453–54 (finding clearly established violation of Fourth

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Amendment even when officer shot individual holding gun but the gun was

not aimed at the officer). 5

If a jury views the disputed facts in favor of the plaintiff—concluding

that Briceno shot Poole, without warning, seeing that he was empty-handed

and turning away from the officer—then Briceno violated Poole’s clearly

established right to be free from unreasonable seizure.

III.

Qualified immunity is not the only defense Briceno pursues on appeal.

He also argues that Heck v. Humphrey bars Poole’s section 1983 claim because

of Poole’s conviction for Aggravated Flight from an Officer. 512 U.S. at 487.

Heck bars section 1983 actions when “a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction.” Id.

Our caselaw is inconsistent about whether we have jurisdiction to

address Heck issues on interlocutory appeal. Sappington v. Bartee held that a

district court’s “denial of a summary judgment is reviewable and subject to

reversal if the claim is barred under Heck.” 195 F.3d 234, 236 (5th Cir. 1999)

(per curiam) (citing Wells v. Bonner, 45 F.3d 90, 94–96 (5th Cir. 1995)). But

in later, unpublished decisions, we indicated that a district court’s failure to

apply Heck should not be reviewed in an interlocutory posture because

5

Briceno argues for the first time on appeal that regardless of whether he could see

Poole’s empty hands, qualified immunity is warranted because he acted reasonably to

prevent Poole from fleeing in his truck and endangering the public. This argument is likely

forfeited because it was not urged in the trial court. See Martinez v. Pompeo, 977 F.3d 457,

460 (5th Cir. 2020) (per curiam). Even if it is properly before us, Briceno shot Poole before

Poole even reentered the car. If the fear was that Pool was about to restart the chase,

conduct far short of using deadly force—shooting the tires, for instance—was possible. See

Graham v. Connor, 490 U.S. 386, 396 (1989) (indicating that use of lesser force is

appropriate when suspect does not pose an immediate threat). And if the fear was not that

Poole would shoot Briceno but that he was going to get back in the car, the factual dispute

about whether Briceno warned Poole before shooting takes on added importance. See Cole,

935 F.3d at 453–54 (warning must be given when feasible before use of deadly force).

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“[u]nlike immunity rights, an appellate court can effectively review the

applicability of Heck after an entry of final judgment[,] making interlocutory

review unnecessary.” Southall v. Arias, 256 F. App’x 674, 676 (5th Cir.

2007) (per curiam) (unpublished) (citing Cunningham v. Gates, 229 F.3d

1271, 1284 (9th Cir. 2000)); see Latham v. Faulkner, 538 F. App’x 499, 500

(5th Cir. 2013) (per curiam) (unpublished). 6 Under our rule of orderliness,

the earlier published decisions control over the later unpublished ones.

United States v. Walker, 302 F.3d 322, 325 (5th Cir. 2002). We thus can

review the Heck issue at this stage.

We agree with the district court that Heck is no barrier to Poole’s

claim. The law Poole violated criminalizes “the intentional refusal of a driver

to bring a vehicle to a stop” under circumstances that endanger human life.

La. Stat. Ann. § 14:108.1(C). At the time the shooting occurred, Poole

had already stopped driving and exited his truck. Poole’s excessive force

claim therefore is “temporally and conceptually distinct” from his flight

offense. Bush v. Strain, 513 F.3d 492, 498 (5th Cir. 2008). Put another way,

it would not be inconsistent with the state court’s finding that Poole fled the

police for a jury to conclude that an officer used excessive force after that

flight ended. See, e.g., Harrigan v. Metro Dade Police Dep’t Station #4, 977

F.3d 1185, 1194 (11th Cir. 2020); Martinez v. City of Albuquerque, 184 F.3d

1123, 1126 (10th Cir. 1999); Nelson v. Jashurek, 109 F.3d 142, 145–46 (3d Cir.

1997) (all recognizing that a plaintiff’s conviction for fleeing officers could

coexist with a finding the officers used excessive force after apprehending the

suspect).

6

These later decisions are consistent with the prevailing approach of other circuits.

See Limone v. Condon, 372 F.3d 39, 50–51 (1st Cir. 2004); Norton v. Stille, 526 F. App’x 509,

514 (6th Cir. 2013) (unpublished); Cunningham, 229 F.3d at 1285; Sayed v. Virginia, 744 F.

App’x 542, 547 (10th Cir. 2018) (unpublished); Harrigan v. Metro Dade Police Dep’t Station

#4, 636 F. App’x 470, 476 (11th Cir. 2015) (per curiam) (unpublished).

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***

Our interlocutory review is limited. For those issues we can review at

this time, we AFFIRM the district court’s denial of summary judgment.

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