Robert Tolan v. Jeffrey Cotton

Case: 12-20296 Document: 00512221451 Page: 1 Date Filed: 04/25/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

April 25, 2013

No. 12-20296 Lyle W. Cayce

Clerk

ROBERT R. TOLAN; MARIAN TOLAN,

Plaintiffs - Appellants

v.

JEFFREY WAYNE COTTON,

Defendant - Appellee

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:09-CV-1324

Before JONES, BARKSDALE, and SOUTHWICK, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge.

Primarily at issue in this appeal from a summary judgment is qualified

immunity’s being granted for a police officer’s use of deadly force against a felony

suspect, injuring him. This action concerns the various claims of four plaintiffs

against numerous defendants; the appeal is from a Federal Rule of Civil

Procedure 54(b) judgment (partial final judgment capable of immediate appeal).

This appeal involves only two of the plaintiffs and one of the defendants.

After summary judgment, based on qualified immunity, was awarded

police officers Jeffrey Wayne Cotton and John C. Edwards against the four

plaintiffs, the Rule 54(b) judgment was entered for the two Officers. Only Robert

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R. Tolan (Robbie Tolan) and his mother, Marian Tolan, appeal from that

judgment, however; and they challenge only the judgment in favor of Sergeant

Cotton. In doing so, they contest the underlying summary judgment, based on

qualified immunity, awarded Sergeant Cotton against their excessive-force

claims. Because no genuine dispute of material fact exists for whether Sergeant

Cotton’s directing deadly force at Robbie Tolan and non-deadly force at Marian

Tolan was objectively unreasonable in the light of clearly-established law, the

Rule 54(b) judgment in favor of Sergeant Cotton is AFFIRMED.

I.

For the reasons provided infra, the following facts are presented, as they

must be on summary-judgment review, in the light most favorable to Robbie and

Marian Tolan.

While patrolling shortly before two o’clock in the morning on 31 December

2008, in Bellaire, Texas, Officer Edwards noticed a black Nissan turn abruptly

onto a residential street. Officer Edwards became suspicious immediately

because 12 vehicles had been burglarized in Bellaire the previous night, and he

knew the street terminated in a cul-de-sac. Surveilling the Nissan from a

distance, Officer Edwards observed Robbie Tolan and Anthony Cooper park on

the street in front of a house and exit the vehicle. Officer Edwards drove past

the vehicle and entered its license-plate number into his mobile data terminal

(MDT). Officer Edwards mistakenly keyed an incorrect character; his entry

resulted in a match with a stolen vehicle of the same make and approximate

year of manufacture. The MDT sent a message automatically to other police

units, alerting them Officer Edwards had identified a stolen vehicle.

Officer Edwards next approached the vehicle and, observing Robbie Tolan

and Cooper carrying items from the vehicle to the house, illuminated them with

his cruiser’s spotlight. Officer Edwards exited his cruiser, drew his service pistol

and flashlight, identified himself as a police officer, and ordered Robbie Tolan

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and Cooper to “come here”. When Robbie Tolan and Cooper cursed Officer

Edwards and refused to comply, Officer Edwards stated to them his belief the

black Nissan was stolen and ordered them onto the ground.

Shortly thereafter, Robbie Tolan’s parents, Bobby and Marian Tolan,

exited the house through the front door. Again, Officer Edwards stated his belief

that Robbie Tolan and Cooper had stolen the Nissan; Robbie Tolan and Cooper

complied with Officer Edwards’ ordering them onto the ground only after Marian

and Bobby Tolan ordered them to do so. Bobby Tolan identified Robbie Tolan as

his son, and Marian Tolan stated the Nissan belonged to them. Bobby Tolan

yelled at Cooper and Robbie Tolan to stay down; and Marian Tolan walked

repeatedly in front of Officer Edwards’ drawn pistol, insisting no crime had been

committed. Dealing with four people in a chaotic and confusing scene, Officer

Edwards radioed for expedited assistance. Sergeant Cotton responded and,

hearing the tension in Officer Edwards’ voice, believed him to be in danger.

Sergeant Cotton arrived approximately one and one-half minutes after Officer

Edwards’ arrival.

Upon his arrival, Sergeant Cotton observed: Officer Edwards with pistol

drawn; Bobby Tolan standing to Officer Edwards’ left, next to a sport-utility

vehicle parked in the Tolans’ driveway, where Officer Edwards had ordered him

to stand; Marian Tolan “moving around” in an agitated state in front of Officer

Edwards; and Cooper lying prone. Sergeant Cotton drew his pistol and moved

in to assist. Although Sergeant Cotton did not immediately observe Robbie

Tolan, whose form was obscured by a planter on the front porch, Officer Edwards

informed Sergeant Cotton that “the two on the ground had gotten out of a stolen

vehicle”. A single gas lamp in front of the house and two motion lights in the

driveway illuminated the scene. In his deposition, Sergeant Cotton described

the gas lamp as “decorative” and the front porch, where Robbie Tolan was lying,

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as “fairly dark”; in his deposition, Bobby Tolan stated the gas lamp provided

enough light to identify a person in the front yard “within reason”.

Robbie Tolan was lying face-down on the porch, with his head toward the

front door and his arms extended. As noted, a planter on the front porch

obscured Robbie Tolan’s position from Sergeant Cotton’s view.

Sergeant Cotton recognized the immediate need to handcuff and search

the felony suspects, but Marian Tolan’s movement and demeanor frustrated the

Officers’ doing so; moreover, Marian Tolan continued to insist the car was not

stolen, and stated they had lived in the house for 15 years. In an attempt to

control the situation, Sergeant Cotton ordered Marian Tolan to move to the

garage door; she refused, and became argumentative. Sergeant Cotton again

requested Marian Tolan to move out of the Officers’ way, and stated the

situation would be worked out after they concluded their investigation. Marian

Tolan’s protestations continued; when Sergeant Cotton ordered her to “get

against the garage”, she refused, stating: “Me? Are you kidding?”.

In response, Sergeant Cotton holstered his pistol, clutched Marian Tolan’s

arm, placed his other hand in the small of her back, and attempted to move her

to the garage door. Despite her jerking her arm away and screaming “get your

hands off me”, Sergeant Cotton physically moved her to the garage door so a

search of Robbie Tolan and Cooper could be conducted. From this angle,

Sergeant Cotton then observed Robbie Tolan lying prone and facing away from

Sergeant Cotton; the complaint for this action alleges the distance between

Sergeant Cotton and Robbie Tolan was approximately 15 to 20 feet.

Sergeant Cotton’s method of handling Marian Tolan angered Robbie Tolan;

upon seeing his mother pushed into the garage door and hearing a metallic

impact, Robbie Tolan yelled “get your fucking hands off my mom!”, pulled his

outstretched arms to his torso, and began getting up and turning toward

Sergeant Cotton. Fearing Robbie Tolan was reaching towards his waistband for

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a weapon, Sergeant Cotton drew his pistol and fired three rounds at Robbie

Tolan, striking him once in the chest and causing serious internal injury. At the

time, Robbie Tolan was wearing a dark zippered jacket, known as a “hoodie”,

which was untucked and hung over the top of his trousers, concealing his

waistband. A subsequent search revealed Robbie Tolan was unarmed. Between

Sergeant Cotton’s arriving on the scene and his discharging his pistol, a mere 32

seconds elapsed.

In April 2009, Sergeant Cotton was charged in a state-court indictment

with one count of aggravated assault by a public servant. A jury acquitted

Sergeant Cotton in May 2010. As noted infra, excerpts from Sergeant Cotton’s

criminal trial, including testimony by Sergeant Cotton, Officer Edwards, and the

Tolans, are in the summary-judgment record.

In May 2009, following Sergeant Cotton’s being indicted that April, the

Tolans and Cooper filed this action, inter alia, pursuant to 42 U.S.C. § 1983

against Sergeant Cotton, Officer Edwards, and the City of Bellaire, claiming,

inter alia: Sergeant Cotton and Officer Edwards violated Robbie and Marian

Tolan’s right to freedom from excessive force (under Fourth Amendment,

incorporated in Fourteenth); and both Officers acted in furtherance of a City of

Bellaire official policy of racial profiling and discrimination. The Officers

invoked qualified immunity in their answer, and, after discovery, moved for

summary judgment on that basis.

The district court, in an extremely detailed and well-reasoned opinion,

granted the Officers’ summary-judgment motion, based on qualified immunity;

it held the Tolans and Cooper had not shown a constitutional violation, as

required by the first of two prongs for qualified-immunity analysis, discussed

infra. Tolan v. Cotton, 854 F.Supp. 2d 444, 478 (S.D. Tex. 2012). Finding there

was “no just reason for delay”, it entered final judgment for the Officers under

Federal Rule of Civil Procedure 54(b).

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II.

For an action involving multiple parties, a district court may enter final

judgment for fewer than, inter alia, all parties if it “expressly determines that

there is no just reason for delay”. FED. R. CIV. P. 54(b). “If the language in the

order appealed from . . . reflects the district court’s unmistakable intent to enter

a partial final judgment under Rule 54(b), nothing else is required to make the

order appealable.” Kelly v. Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d 1218,

1220 (5th Cir. 1990) (en banc). Re-stated, a Rule 54(b) judgment is a final

decision capable of immediate appellate review pursuant to 28 U.S.C. § 1291.

Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 583-84 (1980);

Elizondo v. Green, 671 F.3d 506, 509 (5th Cir. 2012).

Of the four plaintiffs, only Robbie and Marian Tolan contest the summary

judgment. Moreover, they only contest its being awarded Sergeant Cotton.

A summary judgment is reviewed de novo. Burge v. Parish of St.

Tammany, 187 F.3d 452, 464 (5th Cir.1999). Summary judgment is proper if

movant shows: no genuine dispute as to any material fact; and being entitled to

judgment as a matter of law. FED . R. CIV. P. 56(a). “A dispute is genuine if the

evidence is sufficient for a reasonable jury to return a verdict for the nonmoving

party.” Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012) (internal

citation and quotation marks omitted). “A fact issue is material if its resolution

could affect the outcome of the action.” Id. (internal citation and quotation marks

omitted). In that regard, all facts and inferences are construed in the light most

favorable to non-movants. E.g., Cooper Tire & Rubber Co. v. Farese, 423 F.3d

446, 454 (5th Cir. 2005). But, for review of a summary judgment upholding

qualified immunity, plaintiff bears the burden of showing a genuine dispute of

material fact. Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005) (qualified-

immunity defense alters summary judgment burden of proof).

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Extensive discovery has been conducted. Sergeant Cotton supported his

summary-judgment motion with, inter alia: portions of his, Officer Edwards’,

and Robbie, Marian, and Bobby Tolan’s depositions; and portions of Doctor

William Lewinski’s and Lieutenant Albert Rodriguez’ expert-witness depositions,

as well as their declarations, to which their expert reports were attached.

Robbie and Marian Tolan supported their opposition to that motion with, inter

alia: portions of Sergeant Cotton’s and Officer Edwards’ depositions and trial

testimony; portions of Robbie Tolan’s deposition and trial testimony, and his

declaration; portions of Marian and Bobby Tolan’s depositions and trial

testimony; portions of Dr. Lewinski’s deposition; and portions of Lt. Rodriguez’

expert report and deposition.

Qualified immunity promotes the necessary, effective, and efficient

performance of governmental duties, Harlow v. Fitzgerald, 457 U.S. 800, 807

(1982), by shielding from suit all but the “plainly incompetent or those who

knowingly violate the law”, Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.

2008) (internal citation and quotation marks omitted); Mitchell v. Forsythe, 472

U.S. 511, 526 (1985) (qualified immunity is immunity from suit, not merely an

affirmative defense to liability). As noted, after defendant properly invokes

qualified immunity, plaintiff bears the burden to rebut its applicability.

McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002). To abrogate

a public official’s right to qualified immunity, plaintiff must show: first, the

official’s conduct violated a constitutional or statutory right; and second, the

official’s “actions [constituted] objectively unreasonable [conduct] in [the] light

of clearly established law at the time of the conduct in question”. Brumfield, 551

F.3d at 326.

For an excessive-force claim, plaintiff clears the first prong of the

qualified-immunity analysis at the summary-judgment stage by showing a

genuine dispute of material fact for whether plaintiff sustained: “(1) an injury

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(2) which resulted from the use of force that was clearly excessive to the need

and (3) the excessiveness of which was clearly unreasonable”. Rockwell v.

Brown, 664 F.3d 985, 991 (5th Cir. 2011) (quoting Hill v. Carroll Cnty., 587 F.3d

230, 234 (5th Cir. 2009)).

For the second prong at the summary-judgment stage, plaintiff must

similarly show a genuine dispute of material fact for two distinct, but

intertwined, elements. “The second prong of the qualified immunity test is []

understood as two separate inquiries: whether the allegedly violated

constitutional rights were clearly established at the time of the incident; and, if

so, whether the [defendant’s conduct] was objectively unreasonable in the light

of that then clearly established law.” Hare v. City of Corinth, 135 F.3d 320, 326

(5th Cir. 1998) (first emphasis in original) (second emphasis added).

In the excessive-force context at issue here, although the long-established

two prongs of qualified-immunity analysis contain “objective reasonableness”

elements, those prongs remain distinct and require independent inquiry.

Brumfield, 551 F.3d at 326. Importantly, the sequence of analysis is immaterial,

Pearson v. Callahan, 555 U.S. 223, 236 (2009); qualified immunity may be

granted without deciding the first prong if plaintiff fails to satisfy the second,

Kovacic v. Villarreal, 628 F.3d 209, 213 (5th Cir. 2010). Deciding the second

prong first is often advisable; for example, if, as here, a constitutional right is

claimed to have been violated (first prong), “this approach [of first addressing the

second prong] comports with [the] usual reluctance to decide constitutional

questions unnecessarily”. Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012).

A.

Contesting the summary judgment based on qualified immunity, Robbie

Tolan contends a genuine dispute of material fact exists for whether Sergeant

Cotton could have reasonably perceived him as a threat which justified the use

of deadly force. He asserts a reasonable officer on the scene should have

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possessed information that Robbie Tolan was neither armed nor dangerous,

thereby reducing the perceived threat level and negating any belief deadly force

was necessary. Along that line, he relies on Marian and Bobby Tolan’s exiting

the house wearing pajamas and insisting Robbie Tolan and Cooper did not steal

the vehicle. Robbie Tolan cites case law from other circuits for the proposition

that this “updated information” negated any impression Sergeant Cotton may

have had that deadly force could be reasonable. He disputes also Sergeant

Cotton’s maintaining Marian Tolan was shoved into the garage door so Sergeant

Cotton could address a perceived threat; instead, Robbie Tolan contends he

reacted because his mother was shoved into the garage door. Finally, asserting

he never reached toward or into his waistband as claimed by Sergeant Cotton,

Robbie Tolan relies on our court’s unpublished opinion in Reyes v. Bridgwater,

362 F. App’x 403 (5th Cir. 2010), for the proposition that this disputed location

of his hands is a genuine dispute of material fact, precluding summary judgment

and, accordingly, mandating reversal.

The undisputed summary-judgment evidence, however, shows: Officer

Edwards and Sergeant Cotton believed they were dealing with a felony vehicle

theft; multiple burglaries of vehicles had occurred in the area the night prior; the

Tolans’ front porch was not well lit; Robbie Tolan, in spite of Officer Edwards’

having drawn his pistol, disobeyed orders to remain prone while the Officers

attempted to establish order and investigate the situation; and Robbie Tolan’s

moving to intervene in Sergeant Cotton’s separating his mother was preceded

by his shouting “get your fucking hands off my mom!”.

Viewing the summary-judgment record in the light most favorable to him,

Robbie Tolan has not met his burden to show a genuine dispute of material fact,

Michalik, 422 F.3d at 262, for whether Sergeant Cotton’s conduct was objectively

unreasonable in the light of clearly established law, Brumfield, 551 F.3d at 326.

Accordingly, as discussed infra, and although based on a prong of qualified-

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immunity analysis different from that relied upon by the district court, Sergeant

Cotton is entitled to qualified immunity; his actions being required to “be judged

from the perspective of a reasonable officer on the scene” steers the analysis to

that conclusion. Graham v. Connor, 490 U.S. 386, 396 (1989).

1.

Exercising the above-referenced “usual reluctance to decide constitutional

questions unnecessarily”, Reichle, 132 S. Ct. at 2093, we do not reach whether

Sergeant Cotton’s shooting Robbie Tolan violated his Fourth Amendment right

against excessive force (as noted, the district court relied on this first prong of

qualified-immunity analysis). As discussed above, showing violation of a

constitutional right does not end the inquiry when qualified immunity properly

has been invoked. Sergeant Cotton is entitled, through summary judgment, to

qualified immunity under the second prong of the analysis.

2.

A right is sufficiently clear, and therefore “clearly established”, when

“every ‘reasonable official would have understood that what he is doing violates

that right’”. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quoting Anderson

v. Creighton, 483 U.S. 635, 640 (1987)). “[E]xisting precedent must [] place[] the

statutory or constitutional question beyond debate”. al-Kidd, 131 S. Ct. at 2083.

This “clearly-established” standard balances the vindication of constitutional or

statutory rights and the effective performance of governmental duties by

ensuring officials can “reasonably . . . anticipate when their conduct may give

rise to liability for damages”. Davis v. Scherer, 468 U.S. 183, 195 (1984). As

discussed supra, this second-prong question of whether the law was clearly

established cannot be untethered from the concomitant question of whether the

challenged conduct was objectively unreasonable in the light of that clearly-

established law. Poole, 691 F.3d at 630; see also Saucier v. Katz, 533 U.S. 194,

205 (2001), modified by Pearson v. Callahan, 555 U.S. 223 (2009) (qualified

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immunity under the second prong may attach irrespective of constitutional

violation under the first, which in the excessive-force context includes a separate

objective-reasonableness inquiry).

It is undisputed that, when Sergeant Cotton shot Robbie Tolan, it was

also clearly established that an officer had the right to use deadly force if that

officer harbored an objective and reasonable belief that a suspect presented an

“immediate threat to [his] safety”. Deville v. Marcantel, 567 F.3d 156, 167 (5th

Cir. 2009); see also Ontiveros v. City of Rosenberg, 564 F.3d 379 (5th Cir. 2009);

Young v. City of Killeen, 775 F.2d 1349 (5th Cir. 1985). Therefore, for Robbie

Tolan to prevent Sergeant Cotton’s having qualified immunity, he must show a

genuine dispute of material fact on whether “every ‘reasonable official would

have understood’” Sergeant Cotton’s using deadly force was objectively

unreasonable under the circumstances and clearly-established law. al-Kidd, 131

S. Ct. at 2083; Poole, 691 F.3d at 630. To be sure, it was clearly established that

shooting an unarmed, non-threatening suspect is a Fourth-Amendment

violation. Tennessee v. Garner, 471 U.S. 1 (1985). But, that is only half of the

equation for second-prong analysis; the remainder depends upon the totality of

the circumstances as viewed by a reasonable, on-the-scene officer without the

benefit of retrospection. Poole, 691 F.3d at 628.

As explained above, an objectively-reasonable officer in Sergeant Cotton’s

position would have had neither knowledge of, nor reason to suspect, Officer

Edwards’ having mistakenly identified Robbie Tolan’s vehicle as stolen.

Justified in his believing – however erroneously in hindsight – Robbie Tolan and

Cooper had stolen a vehicle, an objectively-reasonable officer in Sergeant

Cotton’s position could have also believed Robbie Tolan’s verbally threatening

him and getting up from his prone position presented an “immediate threat to

the safety of the officers”. Deville, 567 F.3d at 167. Compounding that threat

were the surrounding circumstances: the late hour; recent criminal activity in

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the area; a dimly-lit front porch; Marian Tolan’s refusing orders to remain quiet

and calm; and the Officers’ being outnumbered on the scene. Robbie Tolan

admitted that he drew his outstretched arms toward his chest, did a push-up

maneuver, and began turning to his left to face Sergeant Cotton; under the

above-described circumstances, these actions could have placed an objectively-

reasonable officer in, as Sergeant Cotton testified, fear for his life. Accordingly,

whether Robbie Tolan reached into or toward his waistband does not create a

genuine dispute of material fact on objective reasonableness vel non.

As part of the support for his summary-judgment motion, Sergeant Cotton

presented expert testimony from Dr. Lewinski and Lt. Rodriguez. In his expert

report, Dr. Lewinski stated that, as a matter of science, an officer has only one-

quarter of one second to recognize a threat and respond accordingly. Likewise,

Lt. Rodriguez stated in his deposition that officers have but a fraction of a second

to react to threats. Further, and in the light of these scientific principles, they

maintained officers cannot be trained to positively identify a weapon before

resorting to deadly force. Robbie Tolan provided no evidence rebutting this

expert evidence; yet, even if he had, an officer’s right to use deadly force when

objectively reasonable under the circumstances is also clearly established and

“beyond debate”, al-Kidd, 131 S. Ct. at 2083 – even when, as here, hindsight

proves underlying assumptions to be erroneous. E.g., Young, 775 F.2d 1349

(qualified immunity where officer fatally shot unarmed driver who reached

under seat); Ontiveros, 564 F.3d 379 (same, where officer fatally shot unarmed

suspect who reached into boot). In short, Sergeant Cotton’s split-second decision

to use deadly force does not amount to the type of “plain[] incompeten[ce]”

necessary to divest him of qualified immunity. Brumfield, 551 F.3d at 326.

Along that line, Robbie Tolan had clear and obvious warning of Officer

Edwards’ and Sergeant Cotton’s believing deadly force might be required under

the circumstances: both made clear their belief Robbie Tolan’s vehicle was

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stolen; Sergeant Cotton drew his pistol upon his arriving on the scene; and

Officer Edwards continually covered Robbie Tolan and Cooper with pistol drawn

throughout the sequence of events. E.g., Garner, 471 U.S. at 11-12 (deadly force

not unconstitutional when probable cause to believe crime involving threat of

serious physical harm has been committed and, if feasible, suspect warned

deadly force may be used).

Noteworthy here, Robbie Tolan’s refusing to obey a direct order to remain

prone violated Texas Penal Code § 38.15 and Texas Transportation Code § 542.501

in Sergeant Cotton’s presence; those sections provide: “[a] person commits an

offense” by disrupting or impeding “a peace officer . . . performing a duty or

exercising authority imposed . . . by law”, § 38.15(a)(1); and “[a] person may

not wilfully fail or refuse to comply with a lawful order . . . of a police officer”,

§ 542.501. Such refusal, under the circumstances, could have reinforced an

officer’s reasonably believing Robbie Tolan to be a non-compliant and potentially

threatening suspect. Robbie Tolan could have avoided injury by remaining

prone as Officer Edwards, with pistol drawn, had ordered him to do. Instead, his

shouting and abruptly attempting to approach Sergeant Cotton inflamed an

already tense situation; in the light of his actions at the scene, a genuine dispute

of material fact does not exist regarding whether Sergeant Cotton acted

objectively unreasonably. E.g., Deville, 567 F.3d at 167; Ontiveros, 564 F.3d 379;

Young, 775 F.2d 1349.

It goes without saying that this occurrence was tragic. But, the Officers’

mistake of fact and Robbie Tolan’s injury do not permit deviating from

controlling law. Accordingly, and because Robbie Tolan has not shown a genuine

dispute of material fact for whether Sergeant Cotton’s shooting him was

objectively unreasonable under clearly-established law, summary judgment

based on qualified immunity was proper.

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B.

Marian Tolan contends the summary judgment for Sergeant Cotton was

improper because a genuine dispute of material fact exists for whether her right

to freedom from excessive force was violated by Sergeant Cotton’s grabbing her

arm and shoving her against the garage door. Viewing the summary judgment

record in the light most favorable to her, Marian Tolan has not created a genuine

issue of material fact on whether Sergeant Cotton’s conduct was objectively

unreasonable in the light of clearly-established law.

1.

For the reasons stated above, and because the undisputed, material facts

show Sergeant Cotton is entitled to qualified immunity under the second prong

of the qualified-immunity analysis, we need not decide the first prong.

2.

Officers have a clearly-established right to use “measured and ascending”

responses to control volatile situations while in the discharge of their official

duties. Poole, 691 F.3d at 629 (internal citation and quotation marks omitted).

Marian Tolan likewise violated Texas Penal Code § 38.15 and Texas

Transportation Code § 542.501 by refusing to remain calm and move to the

garage door as Sergeant Cotton ordered, thereby, as provided in § 38.15,

impeding his performing a duty imposed by law and, as provided in § 542.501,

“refus[ing] to comply with [his] lawful order”.

There is no genuine dispute of material fact that this is what happened.

Sergeant Cotton first used voice commands in an attempt to gain Marian Tolan’s

compliance and to facilitate his securing and searching two felony suspects. E.g.,

Deville, 567 F.3d at 167-68 (officers should attempt voice commands before

resorting to physical force when circumstances permit). Those commands

having proved ineffectual, Sergeant Cotton used minimal physical force to move

Marian Tolan away from Officer Edwards’ line of sight in an attempt to restore

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order to a chaotic and confusing scene and to conduct the necessary

investigation.

Accordingly, Sergeant Cotton’s actions were not objectively unreasonable

in the light of clearly-established law. Summary judgment based on qualified

immunity was proper regarding Marian Tolan.

III.

For the foregoing reasons, the Rule 54(b) judgment in favor of Sergeant

Cotton is AFFIRMED.

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