Imogene Watson v. City of Leland

Case: 11-60699 Document: 00512133806 Page: 1 Date Filed: 02/04/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

February 4, 2013

No. 11-60699 Lyle W. Cayce

Clerk

IMOGENE WATSON, on behalf of the Estate of Derek Watson, deceased, and

on behalf of Decedent’s two minor children, Sincere Robinson and Devonte

White, and on behalf of all those entitled to recover under the wrongful death

statute,

Plaintiff–Appellee

v.

FLASCO BRYANT, individually and in his official capacity as a Police

Officer,

Defendant–Appellant

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:08-CV-161

Before DeMOSS, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Flasco Bryant appeals from the district court’s denial

of qualified immunity on Plaintiff-Appellee Imogene Watson’s (“Ms. Watson”)

*

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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Fourth Amendment claims brought under 42 U.S.C. § 1983. We REVERSE and

REMAND.

I. Facts and Procedural History

One evening Samantha Williams called the City of Leland, Mississippi,

Police Department to report that her boyfriend, Derek Watson (“Derek”), had

assaulted her at a local club. Leland police officers, including Bryant, knew of

the couple’s contentious and sometimes violent relationship and had responded

to several domestic-violence calls over the previous year, some of which resulted

in Derek’s arrest.

Bryant proceeded to the club. He met Williams inside and noticed injuries

on her face and neck. Because Williams was intoxicated, Bryant advised her to

wait until the morning to file charges, pursuant to Department policy. Derek’s

whereabouts were unknown at that point. Bryant resumed his patrol.

Williams later called back to say that Derek had returned to the club and

was harassing her. He left before Bryant arrived. Bryant decided to patrol the

area in search of him.

Bryant found him walking a few blocks away. Derek had on a hooded coat,

and he had his hands in the coat’s pockets. Bryant rolled down his window,

noticed that Derek appeared to be intoxicated,1 and warned him to stay away

from Williams and the club for the rest of the evening. Derek agreed to walk to

his mother’s house, and he set off in that direction. Bryant drove off.

Shortly after resuming his patrol, Bryant saw Derek heading towards the

club. Bryant positioned his police cruiser in Derek’s path and told him to stop

and to show his hands. Derek stopped, but he kept his hands concealed. Bryant

exited his car and, while drawing his service pistol, again instructed Derek to

take his hands out of his pockets. He failed to do so.

1

Although Ms. Watson tries to cast doubt on this assessment, a toxicology report shows

that Derek had a blood-alcohol level above the legal limit for operating a vehicle.

2

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Bryant approached Derek, grabbed him by his collar, and took him to the

ground. Derek landed on his side, and Bryant rolled him onto his stomach.

Bryant, still holding his pistol, positioned himself on Derek’s back and managed

to handcuff Derek’s left hand. Derek, however, failed to pull his right hand out

of his pocket despite Bryant’s repeated instructions to show his hands.

Using the same hand that held his pistol, Bryant attempted to secure

Derek’s right hand. After a few tries, Bryant finally extracted it from the pocket

and went to place it on Derek’s back, adjacent to the already-cuffed left hand.

As he did, the pistol fired, fatally striking Derek in the back.

During the ensuing internal investigation, the Leland City Council voted

to terminate Bryant’s employment, and he retired from law enforcement. The

record does not contain the investigation’s results. Ms. Watson sued Bryant and

the City of Leland, bringing various constitutional and state-law claims.

Relevant here, the district court denied Bryant qualified immunity on Ms.

Watson’s Fourth Amendment claim, bifurcating the claim into separate

unlawful-arrest and excessive-force violations.2 The court determined that

genuinely disputed material facts preclude immunity, but it did not specifically

identify the facts or evidence supporting that conclusion. It did, however,

observe that the excessive-force claim was “infinitely stronger” than the

unlawful-arrest claim, “so much so” that it intended at trial to grant a directed

verdict in Bryant’s favor as to the unlawful-arrest claim and to give a

peremptory instruction in Ms. Watson’s favor on the excessive-force claim. The

district court reasoned that deciding otherwise would have “left [Ms. Watson]

with the options of, in effect, either proving that Officer Bryant deliberately

murdered [Derek] or foregoing any recovery at all.” Bryant timely appealed.

2

State-law claims remain pending against Bryant and are not the subject of this

interlocutory appeal.

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II. Guiding Principles

“Qualified immunity shields federal and state officials from money

damages unless a plaintiff pleads facts showing (1) that the official violated a

statutory or constitutional right, and (2) that the right was ‘clearly established’

at the time of the challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080

(2011). “A Government official’s conduct violates clearly established law when,

at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently

clear’ that every ‘reasonable official would have understood that what he is doing

violates that right.’” Id. at 2083 (citation omitted). This “objective legal

reasonableness” standard “‘ensure[s] that before they are subjected to suit,

officers are on notice their conduct is unlawful.’” Pearson v. Callahan, 555 U.S.

223, 244 (2009) (citation omitted). Thus, “[q]ualified immunity gives government

officials breathing room to make reasonable but mistaken judgments, and

protects all but the plainly incompetent or those who knowingly violate the law.”

Messerschmidt v. Millender, 132 S. Ct. 1235, 1244-45 (2012) (internal quotation

marks and citations omitted).

Defendants must affirmatively invoke qualified immunity. See Salas v.

Carpenter, 980 F.2d 299, 306 (5th Cir. 1992). Once raised, plaintiffs have the

burden to “negate” qualified immunity by introducing evidence that, viewed in

the light most favorable to the plaintiff, suggests that the defendant violated a

clearly established constitutional right. See Manis v. Lawson, 585 F.3d 839, 843

(5th Cir. 2009). In line with standard summary judgment principles, plaintiffs

“need not present ‘absolute proof,’ but [they] must offer more than ‘mere

allegations.’” Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009)

(citation omitted). That evidence, moreover, must create a genuine dispute on

facts material to the alleged constitutional violation; it is not enough to show the

existence of a genuine dispute on immaterial facts or that a collection of

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undisputed facts “‘imply a speculative scenario that has no factual support.’”

Manis, 585 F.3d at 845 (citation omitted).

Courts generally lack jurisdiction to review denials of summary judgment.

An exception exists for rulings that refuse a defendant entitlement to qualified

immunity because the doctrine provides “immunity from suit rather than a mere

defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526, 530 (1985). Even

then, jurisdiction extends only to issues of law; appellate courts cannot revisit

a trial court’s determination “that a genuine issue of fact exists regarding

whether the defendant(s) did, in fact, engage in [unconstitutional] conduct.”

Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc). Accordingly,

courts may “review the materiality of any factual disputes, but not their

genuineness.” Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000). “The scope

of clearly established law and the objective reasonableness of [the defendant’s]

acts . . . are legal issues [that] we review de novo.” Thompson v. Upshur Cnty.,

245 F.3d 447, 456 (5th Cir. 2001).

A district court’s bare conclusion that fact issues exist, however, does not

bar review of a denial of qualified immunity. Appellate courts confronted with

such rulings have two choices. They can “scour the record and determine what

facts the plaintiff may be able to prove at trial and proceed to resolve the legal

issues.” Id. Alternatively, they can “remand so that the trial court can clarify

the order.” Id. Mindful of the Supreme Court’s admonition to decide “immunity

questions at the earliest possible stage in litigation,” Hunter v. Bryant, 502 U.S.

224, 227 (1991) (per curiam), and in light of the fact that discovery has ended,

we opt to “scour” the relatively limited record here.

III. Ms. Watson Fails to Negate Bryant’s Entitlement to Immunity

Having examined the record, we conclude that it casts no doubt on

Bryant’s version of Derek’s death as “the result of a tragic and deeply

regrettable, unintentional, accidental, discharge.” Culosi v. Bullock, 596 F.3d

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195, 200 (4th Cir. 2010). The Supreme Court and this circuit have long held that

Fourth Amendment violations occur only through intentional conduct. See

Brower v. Cnty. of Inyo, 489 U.S. 593, 597 (1989) (Successful Fourth Amendment

claims establish “a governmental termination of freedom of movement through

means intentionally applied.”); Young v. City of Killeen, 775 F.2d 1349, 1353 (5th

Cir. 1985) (“The constitutional right to be free from unreasonable seizure has

never been equated by the [Supreme] Court with the right to be free from a

negligently executed stop or arrest. There is no question about the fundamental

interest in a person’s own life, but it does not follow that a negligent taking of

life is a constitutional deprivation.”).

In the absence of evidence showing that Bryant intended to use deadly

force, we must conclude that the negligent shooting here did not itself violate

Watson’s Fourth Amendment rights. See Baskin v. City of Houston, Miss., 378

F. App’x 417, 418 (5th Cir. 2010) (unpublished); McCoy v. City of Monticello, 342

F.3d 842, 847-49 (8th Cir. 2003) (reversing district court’s denial of qualified

immunity where unarmed suspect, who was attempting to surrender, sustained

a gunshot wound after officer slipped on ice); Pleasant v. Zamieski, 895 F.2d 272,

276-77 (6th Cir. 1990) (accidental shooting did not violate the Fourth

Amendment); Dodd v. City of Norwich, 827 F.2d 1, 7-8 (2d Cir. 1987) (reh’g op.)

(same; shooting was a “pure accident”); Leber v. Smith, 773 F.2d 101, 104-05 (6th

Cir. 1985) (holding that plaintiff’s unreasonable-seizure claim failed as a matter

of law in an accidental shooting case and, therefore, declining to reach qualified

immunity); Wilson v. Beebe, 770 F.2d 578, 584-86 (6th Cir. 1985) (en banc)

(holding that due-process was not violated where officer’s pistol accidentally

discharged as he handcuffed a suspect, and suggesting that an unraised Fourth

Amendment claim would have failed).

An undisputedly accidental shooting, however, does not end the inquiry.

Bryant still may have violated the Fourth Amendment if he acted objectively

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unreasonably by deciding to make an arrest, by drawing his pistol, or by not

reholstering it before attempting to handcuff Derek. See, e.g., Pleasant, 895 F.2d

at 276. We agree with the district court that the material evidence on the first

two of these arrest-related issues favors Bryant. We disagree, however, with the

district court’s conclusion that Bryant must wait until a directed verdict at trial

to be released from liability on that part of Ms. Watson’s Fourth Amendment

claim, and with its implicit conclusion that Bryant was “plainly incompetent” in

not reholstering his gun.

On this record, the material facts, construed in Ms. Watson’s favor, do not

show that Bryant acted objectively unreasonably in effectuating Watson’s arrest.

At the time of arrest, Bryant knew the following undisputed facts: that Derek

had previously abused Williams; that Williams claimed Derek had assaulted her

that evening; that Williams exhibited injuries consistent with an assault; that

Derek had returned to the club; that Derek was drunk; and that Derek

apparently had ignored Bryant’s order to stay away from the club. Ms. Watson

presents no material evidence suggesting that Bryant lacked cause to stop and

arrest Derek.

We reach the same conclusion as to Bryant’s use of his firearm. In

addition to the above, Ms. Watson presents no evidence contradicting Bryant’s

consistent assertion that Derek refused to show his hands despite repeated

requests to do so. Nor does she show that Bryant was unreasonable in believing

that Derek could have had a weapon in his pockets. Ms. Watson points to no

authority suggesting that an officer may not draw his weapon and keep it at the

ready while dealing with an unsubdued arrestee who potentially retains access

to a concealed weapon. See Young, 775 F.2d at 1353 (“[N]o right is guaranteed

by federal law that one will be free from circumstances where he will be

endangered by the misinterpretation of his acts.”); cf. Culosi, 596 F.3d at 201-02

(dismissing appeal of denial of qualified immunity in an accidental shooting case

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because the record contained evidence—including eyewitness testimony, expert

opinions, forensic evidence, and multiple material inconsistencies in the

defendant’s story—that raised genuine fact disputes on several issues material

to the plaintiff’s Fourth Amendment claim); Russ v. Ratliff, 538 F.2d 799, 804

(8th Cir. 1976) (reversing jury verdict for officer in an accidental shooting case

where “no evidence” suggested that the officer should have drawn his weapon).

It is irrelevant that Bryant may have neglected to follow best practices by

attempting to handcuff a suspect while holding a gun, however tragic the result.

The failure to use “proper procedure” does not prove excessive force. See Young,

775 F.2d at 1352-53. We must evaluate the evidence as it bears on what an

objectively reasonable officer would have done under the circumstances, and we

must resist the temptation to use hindsight in that analysis. See, e.g., Graham

v. Connor, 490 U.S. 386, 396 (1989); Ramirez v. Knoulton, 542 F.3d 124, 130 (5th

Cir. 2008) (characterizing district court’s criticism of officer’s actions as an

impermissible “post hoc evaluation”). However inadvisable Bryant’s actions

were, the evidence does not show that it was objectively unreasonable for an

officer to fail to reholster his weapon in the midst of handcuffing a potentially

armed suspect,3 and we refuse to make such disarmament a constitutional

requirement. Bryant thus is entitled to qualified immunity on Ms. Watson’s

Fourth Amendment claim.

Ms. Watson submits that, where the defendant is the only surviving

witness, his account cannot support qualified immunity. We have examined

3

It does not matter that Derek turned out to be unarmed. See, e.g., Manis, 585 F.3d

at 844-45; Reese v. Anderson, 926 F.2d 494, 501 (5th Cir. 1991) (reversing district court’s

denial of qualified immunity because officer reasonably believed that suspect could have

accessed a weapon when reaching out of the officer’s sightline; the fact that the suspect was

unarmed was “irrelevant”); see also Blossom v. Yarbrough, 429 F.3d 963, 968 (10th Cir. 2005)

(“The fact that [the suspect] was unarmed is not outcome determinative. We have previously

rejected the argument that only a suspect armed with a deadly weapon poses a physical threat

sufficient to justify the use of deadly force.”).

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such cases critically, but we have not relaxed the plaintiff’s burden to introduce

evidence that supports her position and that challenges the defendant’s version

of events. See, e.g., Hernandez v. Jarman, 340 F.3d 617, 622 (8th Cir. 2003);

Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 492 (5th Cir. 2001) (“‘In any

self-defense case, a defendant knows that the only person likely to contradict

him or her is beyond reach. So a court must undertake a fairly critical

assessment of the forensic evidence, the officer’s original reports or statements

and the opinions of experts to decide whether the officer’s testimony could

reasonably be rejected at trial.’” (emphasis removed) (quoting Plakas v. Drinski,

19 F.3d 1143, 1147 (7th Cir. 1994))); see also Ontiveros, 564 F.3d at 383

(affirming qualified immunity for officer even though he was the only person

with knowledge of “those events immediately surrounding the [fatal] shooting”).

None of the evidence here calls into question any relevant aspect of Bryant’s

testimony,4 which has been materially consistent from the time he filed his

initial report through his deposition.5 See Blossom, 429 F.3d at 966 (“In

4

The most on-point evidence does not contradict Bryant’s testimony. Joshua McCaskill

witnessed the arrest moments before the shooting, as he drove by with friends. McCaskill

recalled that Bryant was on top of Derek, that Derek “looked like he had his handcuffs on,”

and that Derek was not “putting up [a] fight.” Soon after this statement, however, McCaskill

noted that Bryant was “rummaging around or whatever,” actions consistent with Bryant’s

assertion that he had to remove Derek’s right hand from his pocket.

5

We are not persuaded that the inconsistencies highlighted by Ms. Watson bear on

whether Bryant acted objectively unreasonably. Whether Bryant observed Williams’s injuries

on her face or neck, illuminated Derek in his spotlights or headlights, told Derek he was being

arrested for assault or public drunkeness, heard Derek say that he had done nothing wrong,

or was evasive in recalling years-old disciplinary incidents simply does not speak to whether

he unreasonably believed that Derek could have had a weapon in his pocket.

Other arguments are similarly unavailing. It is speculative to surmise that Bryant

knew that Derek was unarmed based on policies obligating dispatchers to get that information

from Williams, and nothing suggests that Williams ever communicated such information. The

record, moreover, lacks any forensic evidence concerning Derek’s injury that disputes Bryant’s

description of how the shooting occurred, and no evidence ties the bruise found on Derek’s

head to the incident. In short, no dispute exists on the facts material to whether Bryant acted

objectively unreasonably under the circumstances. See Manis, 585 F.3d at 844-45.

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equating the [defendant’s] refusal to admit [the veracity of the plaintiff’s version

of events] with the [plaintiff’s] affirmative submission of conflicting evidence, the

district court was plainly wrong.”); O’Bert ex rel. Estate of O’Bert v. Vargo, 331

F.3d 29, 37-40 (2d Cir. 2003) (affirming denial of qualified immunity where the

plaintiff’s allegations and evidence contradicted officer’s version of events). Ms.

Watson “provide[s] no evidence to support [her] skepticism [of Bryant’s story],

and ‘at the summary judgment stage we require evidence—not absolute proof,

but not mere allegations either.’” Ontiveros, 564 F.3d at 383 (citation omitted).

Conclusion

Accordingly, we REVERSE and REMAND for entry of partial summary

judgment in Bryant’s favor on his qualified-immunity defense to Ms. Watson’s

Fourth Amendment claim. The Appellee’s motion to dismiss for lack of

jurisdiction is DENIED.

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