Richard Rockwell v. City of Garland, Texas

Case: 10-11053 Document: 00511697420 Page: 1 Date Filed: 12/15/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 15, 2011

No. 10-11053 Lyle W. Cayce

Clerk

RICHARD ROCKWELL, Individually and as Co-Administrator of the Estate

of Scott Rockwell, Deceased; CINDY ROCKWELL, Individually and as Co-

Administrator of the Estate of Scott Rockwell, Deceased,

Plaintiffs–Appellants

v.

LIEUTENANT WILLIAM H. BROWN; OFFICER DAVID J. SCICLUNA;

OFFICER DUSTIN D. RALEY; OFFICER COLLEEN OHLDE; OFFICER

BILLY BURLESON; OFFICER MARIO GARCIA,

Defendants–Appellees

Appeal from the United States District Court

for the Northern District of Texas

Before JOLLY, DeMOSS, and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

On February 14, 2006, six police officers from the Garland, Texas police

department breached the locked door to the private bedroom of Richard and

Cindy Rockwell’s 27-year-old son, Scott, to arrest him for threatening his

mother. Scott attacked the officers with two knives, and in the ensuing melee,

the officers shot and killed him. The Rockwells sued the officers for excessive

force, assault and battery, and unlawful entry. The district court granted

summary judgment to the officers on the basis of qualified immunity and state-

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law official immunity. The Rockwells appealed. We affirm the district court’s

grant of summary judgment on all claims.

I. BACKGROUND

The magistrate judge’s report and recommendation, which was adopted by

the district court, sets forth the relevant facts.1

In February 2006, Plaintiffs Richard and Cindy Rockwell lived

with their son Scott Rockwell at [their home] in Garland, Texas.

Scott had his own bedroom and contributed to the rent. Scott

suffered from both bipolar disorder and schizophrenia. Scott had

also been diagnosed as suicidal and had attempted suicide on more

than one occasion. His mental condition and stability began to

deteriorate in early February. He had quit taking his prescribed

medication and refused to see a doctor. He began hearing voices

and was behaving “unpredictably.” His parents believed he may

have been under the influence of illegal drugs.

On the evening of February 14, 2006, Scott was in his room

hitting the walls and cursing through the door. At one point during

the evening, Scott came out of his room and raised his fist as if to hit

his mother. At approximately 8:38 p.m., Scott’s parents called 911

because they believed that Scott ha[d] become a danger to himself

and others. The 911 dispatcher dispatched Officers Ohlde and

Raley to the Rockwell home. The dispatcher told the officers that

Scott was bi-polar, schizophrenic, off his medication, and that he

was pounding the walls of his room and refusing to come out.

Officer Burleson offered over the radio to come “since there was a

potentially dangerous subject there.” Officer Ohlde accepted

Burleson’s offer of assistance.

Officer Burleson was the first to arrive at the scene, arriving

at approximately 8:45 p.m. Officers Ohlde and Raley arrived soon

thereafter. At the Rockwell home, Mrs. Rockwell told the police that

Scott had schizophrenia, was talking to himself, hadn’t taken his

medication for several days, refused to come out of his room, and

that she believed that Scott was taking illegal drugs. When the

officers asked Mrs. Rockwell what Scott would likely do if they were

to leave without detaining Scott, she answered that she did not

know.

1

The facts were mostly undisputed, but where there was a dispute, it was resolved in

favor of the Rockwells. See Hill v. Carroll Cnty., Miss., 587 F.3d 230, 233 (5th Cir. 2009).

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Officers Ohlde, Burleson, and Raley attempted to

communicate with Scott through his bedroom door. Scott was

threatening the officers from his room and had indicated that “he

thought someone had put ‘cum’ in his mouth.” The Officers believed

that Scott was suggesting he had been sexually assaulted. Officer

Raley advised Officers Ohlde and Burleson that the SWAT team had

been called to respond to Scott on at least one prior occasion and

had taken Scott into custody for threatening and assaulting his

parents. At about this time, Officer Ohlde called Lieutenant Brown

(“Lt. Brown” or “Brown”) who then came to the scene. At some point

after Lt. Brown was called, but before he arrived, Officer Raley

called for another unit. Officers Garcia and Scicluna responded to

this call. While Officers Burleson, Raley, and Ohlde waited for the

additional units, Scott continued to bang on the walls, shake his

door, and make threats to the officers.

At some point after Lt. Brown arrived, the decision was made

to arrest Scott. The decision was made based on the assault by

threat made earlier in the evening, Scott’s history of violent and

suicidal behavior, his unstable mental state, the possibility that

Scott was high on drugs, and concern that Scott would harm his

parents or himself if left in the residence. When the Officers told

Cindy Rockwell that they may have to breach the door to effectuate

an arrest, she suggested that she would wait until morning to get a

mental-health warrant. The Officers, having determined that Scott

was a threat, decided that it would be unsafe to leave him in the

home until morning. The Officers had determined that Scott had

barricaded himself inside of his room. After making repeated

unsuccessful attempts to convince Scott to come out of the room, the

police decided to breach the door.

At the time that the breach was made, Officer Scicluna was

positioned at the door to kick it in. Lt. Brown ordered Scicluna to

get low to stay out of the line of possible gunfire. Lt. Brown was

holding a pepperball gun, and stood in the doorway to the bathroom

across the hall from Scott’s bedroom, behind Officer Scicluna. From

the perspective of somebody facing the door into Scott’s room from

the hallway, Officers Burleson and Ohlde were positioned on the

right side of the door, and Officer Raley was positioned on the left

side of the door, near Lt. Brown. Officer Garcia was positioned by

the back door. Richard and Cindy Rockwell were in the converted

garage. One of the officers had his gun drawn at the time of the

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breach. The door was breached sometime between 9:12 and 9:16

p.m.

Once the door was breached, Scott, holding two eight-inch

serrated knives, rushed towards Lt. Brown and attacked him with

the knives. Officer Burleson saw the knives and yelled “knives” to

warn his fellow officers. Lt. Brown began to fire multiple rounds at

Scott with the pepperball gun. Lt. Brown was able to deflect a

number of these attacks with his pepperball gun. During the

scuffle, Scott pushed Lt. Brown back into the bathroom with enough

force that the commode broke. Scott then turned and began to run

after Officer Scicluna while still swinging his knives. Scott swung

the knives at Officer Scicluna, injuring him. At about this time, the

officers shot at Scott.

Officer Burleson fired one shot which hit Scott in the

abdomen. Officer Raley fired three shots, two of which hit Scott.

One of Officer Raley’s shots created stip[p]ling on Scott’s neck,

which is generally indicative of a shot fired two feet or less from the

target. Scott fell down in front of Officer Scicluna. Officer Scicluna

fired one shot, which hit Scott in the chin and neck. Officer Garcia

fired either once or twice, but did not hit Scott. Officers Ohlde and

Lt. Brown did not fire any shots from their firearms. In total six or

seven shots were fired. The shots were mostly fired in rapid

succession. Four of the shots hit Scott, and one hit Officer Raley.

No party suggests that Scott had a gun or shot Officer Raley. Scott

received wounds to the chin, neck, forearm, and abdomen.

At approximately 9:16, the Officers called for EMS and

reported that Scott had been shot. Scott was pronounced dead at

10:04 p.m.

On February 13, 2008, the Rockwells, individually and on behalf of their

son’s estate, sued the officers for excessive force, and assault and battery. The

Rockwells later amended their complaint to add claims against the officers for

unlawful entry. On June 10, 2008, the magistrate judge recommended to the

district court that the officers’ motion for summary judgment be granted. On

August 26, 2008, the district court adopted the magistrate judge’s report and

recommendation, overruled the Rockwells’ objections, and entered summary

judgment in favor of the officers. The Rockwells timely appealed.

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II. JURISDICTION & STANDARD OF REVIEW

This Court has jurisdiction under 28 U.S.C. § 1291 and reviews a grant of

summary judgment de novo, applying the same standard as the district court.

Quality Infusion Care, Inc. v. Health Care Serv. Corp., 628 F.3d 725, 728 (5th

Cir. 2010). Summary judgment is proper when “there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when the evidence

is such that a reasonable jury could return a verdict for the non-moving party.

Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 417 (5th

Cir.2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)). We view

all disputed facts and inferences in the light most favorable to the non-movant.

Hill, 587 F.3d at 233. Furthermore, we may affirm a grant of summary

judgment “on any basis supported by the record.” TIG Specialty Ins. Co. v.

Pinkmonkey.com Inc., 375 F.3d 365, 369 (5th Cir. 2004).

III. DISCUSSION

A. Excessive Force

The Rockwells argue that the district court erred in granting summary

judgment to the officers on the excessive-force claims on the basis of qualified

immunity. “The doctrine of qualified immunity protects government officials

‘from liability from civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). Therefore, the qualified-immunity

inquiry has two prongs: (1) whether an official’s conduct violated a constitutional

right of the plaintiff, and (2) whether that right was clearly established at the

time of the violation. Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010)

(citing Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009)). “A court may rely

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on either prong of the defense in its analysis.” Id. (citing Manis, 585 F.3d at

843).

The burden is on the Rockwells to rebut the officers’ qualified-immunity

defense “by establishing a genuine fact issue as to whether the [officers’]

allegedly wrongful conduct violated clearly established law.” Id. (citing

Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005)). To prove that the

officers violated Scott’s Fourth Amendment right to be free from the use of

excessive force, the Rockwells must show: “(1) an injury (2) which resulted from

the use of force that was clearly excessive to the need and (3) the excessiveness

of which was objectively unreasonable.” Hill, 587 F.3d at 243 (citing Williams

v. Bramer, 180 F.3d 699, 704 (5th Cir. 1999)).

As in other Fourth Amendment contexts, the “reasonableness” inquiry is

objective: “the question is whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances confronting them, without

regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S.

386, 397 (1989). “The ‘reasonableness’ of a particular use of force must be judged

from the perspective of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight.” Id. at 396. “The calculus of reasonableness must

embody allowance for the fact that police officers are often forced to make

split-second judgments—in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a particular situation.”

Id. at 396–97.

“An officer’s use of deadly force is not excessive, and thus no constitutional

violation occurs, when the officer reasonably believes that the suspect poses a

threat of serious harm to the officer or to others.” Manis, 585 F.3d at 843 (citing

Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 382 (5th Cir. 2009)). “The

excessive force inquiry is confined to whether the [officer or another person] was

in danger at the moment of the threat that resulted in the [officer’s use of deadly

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force].” Bazan v. Hidalgo Cnty., 246 F.3d 481, 493 (5th Cir. 2001) (citing Fraire

v. City of Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992) (“[R]egardless of what

had transpired up until the shooting itself, [the suspect’s] movements gave the

officer reason to believe, at that moment, that there was a threat of physical

harm.”)).

In this case, the evidence shows that after the officers breached the door

to Scott’s room, Scott ran out of his room and toward the officers, who were

positioned in a small hallway. Scott, who was a relatively large man, held an

eight-inch knife in each hand. Burleson saw the knives and warned the other

officers that Scott was armed. Scott charged at Brown, who discharged his

pepperball gun at Scott in an attempt to prevent him from cutting or stabbing

any of the officers. During the ensuing scuffle, Scott pushed Brown into the

bathroom with enough force to shatter the toilet. Scott then turned toward

Scicluna and began swinging the knives at him. Scicluna suffered lacerations

to his left arm and right shoulder. The parties disagree about when the first

shot was fired, but the evidence, even when viewed in the light most favorable

to the Rockwells, shows that all of the shots were fired after Scott charged out

of his room with a deadly weapon in each hand in the direction of the officers.

Under the totality of the circumstances, then, it was reasonable for the officers

to believe that Scott posed a significant and imminent threat of serious physical

harm to one or more of the officers. Consequently, the officers’ decision to

respond to that threat with deadly force was justified.

In response, the Rockwells argue that the officers’ use of deadly force

contravenes the Supreme Court’s decision in Tennessee v. Garner, 471 U.S. 1

(1985). In Garner, the Court held that it was unreasonable for a police officer

to use deadly force to prevent the escape of a suspect when the suspect did not

pose an immediate threat to the officer or other persons. Id. at 11–12. In that

case, the suspect was not armed, not known to be dangerous, and fleeing. By

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contrast, the officers in this case confronted the polar opposite set of facts: Scott

was armed with two eight-inch knives; the officers knew that he suffered from

mental-health problems, had previously exhibited violent behavior, and was

pounding on the walls of his room and yelling obscenities at the officers; and

when he was shot, Scott was not fleeing from the officers, but running toward

them. Accordingly, the holding in Garner is not controlling.

Second, the Rockwells contend that the magistrate judge’s reasoning

ignores the test set forth in Graham v. Connor. 490 U.S. 386. In Graham, the

Supreme Court explained that in deciding if a particular seizure is reasonable,

courts must give “careful attention to 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.” Id. at 396.

The Rockwells suggest that the magistrate judge gave too little weight to the

minor nature of the crime that Scott had allegedly committed—misdemeanor

assault by threat—and the fact that Scott was not attempting to evade arrest by

flight. But neither the Supreme Court nor this Court has ever held that all of

the Graham factors must be present for an officer’s actions to be reasonable;

indeed, in the typical case, it is sufficient that the officer reasonably believed

that the suspect posed a threat to the safety of the officer or others.

Third, the Rockwells urge this Court to view the officers’ breach of the

locked door to Scott’s room as the actual moment of the use of deadly force

because it “carried a substantial risk of causing serious bodily harm” and was

the immediate but-for cause of the resulting altercation between Scott and the

officers. Under this construction, the officers would not have been justified in

using deadly force because, at the time of the breach of the door, Scott was

barricaded in his room and could not have physically harmed the officers. But

a breach of a door, in and of itself, does not create a substantial risk of serious

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bodily harm, and the Rockwells have failed to present any Supreme Court or

Fifth Circuit case that draws the concept of “deadly force” so broadly. In

addition, the Rockwells’ argument that the breach of the door necessarily caused

the shooting that followed is nothing more than speculation. Thus, the

magistrate judge correctly found that the “breach of the door was neither the

moment where deadly force was employed nor did Scott’s death result directly

and only from the breach of the door.”

Lastly, the Rockwells, relying on case law from other circuits, urge this

Court to examine the circumstances surrounding the forced entry, which may

have led to the fatal shooting, in evaluating the reasonableness of the officers’

use of deadly force. This argument is unavailing. It is well-established that

“[t]he excessive force inquiry is confined to whether the [officer or another

person] was in danger at the moment of the threat that resulted in the [officer’s

use of deadly force].” Bazan, 246 F.3d at 493. At the time of the shooting, Scott

was engaged in an armed struggle with the officers, and therefore each of the

officers had a reasonable belief that Scott posed an imminent risk of serious

harm to the officers. We need not look at any other moment in time.

Accordingly, the officers’ use of deadly force was objectively reasonable.

Because we hold that Scott’s Fourth Amendment right to be free from the use of

excessive force was not violated, we need not consider the issue of whether that

right was clearly established. See Brown, 623 F.3d at 253.

B. Assault and Battery

Second, regarding the assault-and-battery claims, the Rockwells argue

that the district court erred in granting summary judgment in favor of the

officers on the basis of state-law official immunity. In Texas, “to prevail on a

claim for civil assault, the plaintiff must establish the same elements required

for criminal assault.” Appell v. Muguerza, 329 S.W.3d 104, 110 (Tex.

App.—Houston [14th Dist.] 2010, pet. filed) (citation omitted). Accordingly, “a

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person commits civil assault if he ‘intentionally, knowingly, or recklessly causes

bodily injury to another.’” Id. (quoting Tex. Penal Code Ann. § 22.01(a)(1)). “A

person also commits civil assault if he ‘intentionally or knowingly causes

physical contact with another when the person knows or should reasonably

believe that the other will regard the contact as offensive or provocative.’” Id.

(quoting Tex. Penal Code Ann. § 22.01(a)(3)).

Official immunity “is an affirmative defense”; it protects government

employees “from suit arising from the performance of their (1) discretionary

duties in (2) good faith as long as they are (3) acting within the scope of their

authority.” City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 2004)

(citation omitted). The only question in this case is whether the Garland police

officers acted in good faith. The test for good faith is “derived substantially”

from the test for qualified immunity under federal law. Id. at 656; see also

Meadours v. Ermel, 483 F.3d 417, 424 (5th Cir. 2007) (“The ‘good faith’ test

applied by Texas law in determining official immunity is evaluated under

substantially the same standard used for qualified immunity determinations in

§ 1983 actions.”). The main difference, however, is that official immunity does

not incorporate the requirement that the right alleged to have been violated be

clearly established. Cantu v. Rocha, 77 F.3d 795, 808–09 (5th Cir. 1996) (citing

Chambers, 883 S.W.2d at 657). Rather, Texas’s good-faith test “focuses solely on

the objective legal reasonableness of the officer’s conduct.” Id. at 809 (citing

Chambers, 883 S.W.2d at 656–57).

Therefore, to prove their good faith, the officers in this case must show

that “a reasonably prudent officer, under the same or similar circumstances,

could have believed” that the decision to use deadly force against Scott was

justified. Chambers, 883 S.W.2d at 656 (emphasis added). To controvert the

officers’ summary-judgment proof on good faith, the Rockwells “must do more

than show that a reasonably prudent officer could have [acted differently];

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[instead, they] must show that no reasonable person in the [officers’] position

could have thought the facts were such that they justified [the officers’] acts.”

Id. at 657 (citations and internal quotation marks omitted).

As explained above, the officers’ use of deadly force against Scott was

objectively reasonable under the totality of the circumstances. Therefore, we

affirm the district court’s grant of official immunity to the officers on the

Rockwells’ assault-and-battery claims.

C. Unlawful Entry

Third, the Rockwells contend that the district court erred in granting

summary judgment in favor of the officers on the unlawful-entry claims. In

essence, the Rockwells argue that the officers’ breach of Scott’s door constituted

an independent violation of Scott’s rights under the Fourth Amendment.

Specifically, the Rockwells claim that the officers violated (i) Scott’s right to be

free from warrantless entry to arrest for a misdemeanor and (ii) Scott’s right to

be free from a warrantless misdemeanor arrest. We hold that the officers are

entitled to qualified immunity on all of the Rockwells’ unlawful-entry claims.2

1. Warrantless Entry

Under the Fourth Amendment, a warrantless intrusion into a person’s

home is “presumptively unreasonable unless the person consents, or unless

probable cause and exigent circumstances justify” the intrusion. Gates, 537 F.3d

at 420 (citations and internal quotation marks omitted). “Law enforcement

officers may enter a home without a warrant to render emergency assistance to

an injured occupant or to protect an occupant from imminent injury.” Id. at 421

(quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).

On the issue of consent, we find that Scott did not consent to the

warrantless entry of his room. To be sure, the officers argue that Scott

2

We also reject the Rockwells’ claim that the officers’ entry violated article 15.25 of the

Texas Code of Criminal Procedure. That provision is inapplicable to this case.

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consented to the warrantless entry when he told the officers to “come on in,” and

that it was reasonable for the officers to believe that this statement constituted

effective consent. But this argument relies on a deceptively selective

presentation of the facts. Scott made the statement “come on in” in the middle

of a tirade that also contained obscenities, threats, provocations, incoherent

yelling, and several inconsistent statements with respect to consent.3 In

addition, despite Scott’s purported consent, he never unlocked the door to his

room; his actions were in direct conflict with the consent the officers claim he

gave. We conclude that no reasonable officer could have believed that Scott had

given his consent. See, e.g., United States v. Kelly, 913 F.2d 261, 266–67 (6th

Cir. 1990) (explaining that words of consent are likely ineffective when they are

coupled with inconsistent statements, or accompanied by the withholding or

denial of the means of effectuating that consent).

On the issue of exigent circumstances, however, we conclude that the law

at the time of the entry did not clearly establish that the officers were

unreasonable in believing that the threat Scott posed to himself constituted an

exigent circumstance.4 As noted, Scott had been diagnosed as suicidal and had

attempted suicide on more than one occasion, suffered from schizophrenia and

bipolar disorder, and at the time of the incident, had not taken his medication

for several days. When the officers asked Mrs. Rockwell what Scott would likely

do if they were to leave without detaining Scott, she answered that she did not

know. Meanwhile, Scott had barricaded himself in his room, and his mental

3

A few examples: “Fuck you. I ain’t opening shit.” “Fuck you. You ain’t my boss. I

ain’t scared of you. . . . Come in here. I’m ready for y’all.” “Bring it on, I ain’t no chump.”

4

See Pierce v. Smith, 117 F.3d 866, 871 (5th Cir. 1997) (“[W]here the complained of

conduct is a law enforcement warrantless search of a residence, qualified immunity turns not

only on whether it was then clearly established that such a search required probable cause and

exigent circumstances, but also on whether it was then ‘clearly established that the

circumstances with which’ the officer ‘was confronted did not constitute probable cause and

exigent circumstances.’” (quoting Anderson v. Creighton, 483 U.S. 635, 640–41 (1987)).

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instability was becoming increasingly apparent as he pounded the walls, shook

the door, and hurled foul threats at the officers.

Only a handful of courts of appeals and district courts have addressed

whether the threat a suspect poses to himself may constitute an exigent

circumstance; each of these courts concluded either (i) that the threat the

suspect posed to himself did constitute an exigent circumstance5 or (ii) that the

issue was not clearly established.6 None of these courts concluded that the

threat the suspect posed to himself did not constitute an exigent circumstance.

Cf. Russo, 953 F.2d at 1044 (noting that the court (i.e., the Sixth Circuit) was not

aware of “a single case indicating that an officer’s attempt to rescue what the

officers believes to be a suicidal person does not constitute exigent

5

Russo v. City of Cincinnati, 953 F.2d 1036, 1043–44 (6th Cir. 1992) (holding that

officers were entitled to qualified immunity on plaintiffs’ warrantless-entry claims, and that

plaintiff had failed to show that exigent circumstances did not exist under clearly established

law, where suspect was mentally disturbed and possessed two knives, radio call had described

suspect as suicidal, and suspect had turned out lights and gone silent immediately before

officers’ decision to enter); DuVall v. City of Santa Monica, 42 F.3d 1399, 1994 WL 684501, *1

(9th Cir. 1994) (mem.) (unpublished) (concluding that exigent circumstances justified

warrantless entry where officers knew that suicidal man inside his trailer home was armed

and had threatened to kill himself, because “officers reasonably feared for [suicidal man’s]

safety as well as that of neighbors and themselves”); Conway v. Battelle, No. 4:04-CV-569,

2006 WL 897142, *12 (E.D. Mo. Mar. 30, 2006) (concluding that exigent circumstances

justified warrantless entry because “an objectively reasonable officer at the scene could have

believed that lives within the residence, including the suicidal subject and the distraught

woman, were threatened and thus that immediate police action was necessary”); Sepatis v.

City & Cnty. of S.F., 217 F. Supp. 2d 992, 1000 (N.D. Cal. 2002) (“Exigent circumstances may

exist where a party appears to be suicidal.”); Adams v. Mustang Police Dep’t, No. 07-CV-1113,

2009 WL 152580, *8 (W.D. Okla. Jan. 21, 2009).

6

Roberts v. Spielman, 643 F.3d 899, 906 (11th Cir. 2011) (holding that officer was

entitled to qualified immunity because plaintiff had “cited no binding authority that clearly

established that probable cause and exigent circumstances immediately evaporate once an

officer performing a welfare check for a possibly suicidal person sees that the person is alive”);

Escobedo v. City of Fort Wayne, No. 1:05-CV-424, 2008 WL 1971405, *41 (N.D. Ind. May 5,

2008) (“The Plaintiff does not cite any case indicating that a suicidal person, like Escobedo,

does not create exigent circumstances. Nor does she point to any closely analogous case.”).

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circumstances”).7 Furthermore, this Court has come close to addressing the

issue only once before, in an unpublished opinion and without elaboration. See

United States v. Butler, 209 F.3d 719, 2000 WL 284027, *1 (5th Cir. 2000) (per

curiam) (unpublished) (“Harris County Sheriff’s Department Deputies lawfully

entered Butler’s residence either because of the exigent circumstances presented

by his girlfriend’s alleged attempted suicide or because Butler gave them consent

to enter the house and go up to the bedroom.”).

In light of the above case law and the overall dearth of binding Supreme

Court and Fifth Circuit case law directly on point, we conclude that, at the

time of the incident in this case, it was not clearly established that it was

unreasonable for the officers to believe that the threat Scott posed to himself

constituted an exigent circumstance. Consequently, we hold that the officers are

entitled to qualified immunity on the Rockwells’ claim for warrantless entry.

2. Warrantless Arrest

The Rockwells also claim that the officers had no probable cause to arrest

Scott for a misdemeanor because the officers had not personally witnessed the

crime. As noted, at one point during the evening, before the officers arrived at

the scene, Scott emerged from his room and raised his fist as if to hit his mother.

Although the officers did not personally witness this misdemeanor, the officers’

attempted arrest of Scott for a misdemeanor was not clearly unlawful under the

circumstances. At the time of the incident in 2005, the law was not clearly

established on whether a warrantless arrest for a misdemeanor not committed

in the presence of the arresting officer violates the Fourth Amendment. Indeed,

just one year before the incident, in an unpublished decision from 2004, this

Court held that the Supreme Court had yet to “specifically consider[ ]” the issue.

United States v. Williams. 111 F. App’x 221 (5th Cir. 2004). Because the law at

7

See also Ewolski v. City of Brunswick, 287 F.3d 492, 505 (6th Cir. 2002) (reaffirming

Russo and stating that the court “is not aware of any such case that has issued since Russo”).

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No. 10-11053

the time of the incident was unsettled, the officers are entitled to qualified

immunity on the Rockwells’ claim for warrantless arrest.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment on all claims.

AFFIRMED.

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Case: 10-11053 Document: 00511697420 Page: 16 Date Filed: 12/15/2011

No. 10-11053

HAROLD R. DeMOSS, JR., Circuit Judge, specially concurring:

We hold today that the six police officers who breached Scott Rockwell’s

bedroom door and ultimately shot him to death are entitled to qualified

immunity under federal law and official immunity under Texas state law.

Noting that the state of the law in these particular circumstances remains

relatively primitive, I join the majority opinion in full. I write separately to

express disapproval of and disappointment with the officers’ actions during

the course of this sad incident.

The salient facts are these. The first officer arrived at Scott’s residence

at 8:45 p.m. and five other officers arrived in the next few minutes. They

knew that Scott was a bipolar schizophrenic; that he was off his medication

and perhaps on illegal drugs; that he had threatened his parents in the past

and he had done so again that night; and that he had been taken into custody

in the past. Yet they also knew that they had not witnessed him commit a

crime; that he had not harmed anyone; that his parents did not want him

arrested that night or harmed in any way; and that he had locked himself

inside of his own room away from his parents and any other person. While the

officers knew he had attempted suicide in the past, they had no indication

that he intended on hurting himself that night or that he had knives in his

room. Nevertheless, less than 30 minutes after the first officer arrived at the

residence, Scott lay dying from four gunshot wounds.

It is undisputed that Scott was in no position to harm any other person

while locked in his bedroom. Yet the officers escalated the situation before

even 30 minutes had passed by breaching his bedroom door without a

warrant and with firearms drawn. As I see it, they provoked a man they knew

to be mentally ill into a violent reaction. They did not allow for any time to

defuse the situation or implement the safest procedures possible to take him

into custody. Preventing a possible suicide is a worthy goal, but an armed

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No. 10-11053

entry that heightens the risk to the potential victim’s life certainly is not the

best way to accomplish that goal.

Patience, judgment, and discretion are highly important virtues for law

enforcement personnel to possess; in my judgment the officers exercised none

of them in this case. While their conduct is not legally actionable, neither is it

admirable. I urge the City of Garland police department and other law

enforcement agencies to better prepare officers for foreseeable volatile

situations involving mentally ill citizens and to practice negotiation

techniques or less-than-lethal arrest procedures that will not needlessly risk

the lives of those who seem to be mentally unable to control themselves.8

Insanity is a defense our legal system offers to mentally ill defendants; it is

not an invitation for law enforcement personnel to take unnecessary actions

that heighten the risk of harm or death to mentally ill suspects.

Scott’s mental illness certainly added a tragic dynamic to his life, but it

did not need to cause his death. In my opinion, the officers should have been

trained to use better judgment in their approach to volatile and unfortunate

situations such as this one. This entire case should have been avoided. Scott

should be alive today—perhaps in a medical facility or under court

supervision, but alive nonetheless. All this being said, the majority is correct

in its legal judgments. As such, I concur.

8

More effective and less lethal methods of capture and control are currently used in

prisons and with wild animals—e.g., protective shields or police gear, nets, tranquilizers—and

should also be options in situations such as these.

17