Debera MacE Individually and as Representative of the Estate of Jacob Vincent Revill, Deceased v. City of Palestine Pat Henderson

WIENER, Circuit Judge,

concurring in part and dissenting in part:

I agree that the district court properly granted' summary judgment for the defendants on ' Mace’s deliberate indifference claim. I also agree with the majority’s explication of the law of qualified immunity in the excessive force context. But, because I conclude, based on the record before us, that myriad material facts in dispute prevent a grant of qualified immunity at this juncture, I respectfully dissent.

First, Chief Henderson testified that he felt he “needed” to shoot Revill to “save his life,” but the eyewitness testimony of Rerill’s neighbor, Forrest Frix, contradicts Henderson’s version of the events in several significant factual particulars. Frix maintains that Revill was standing still, not advancing; that he never threatened to kill or otherwise harm the police officers; that he did not pose an immediate threat to the officers, who, at the time of the shooting, had at least five or six feet of additional space behind them in which to retreat; and that Revhl was continuing to talk with Henderson.

I recognize that in making the qualified immunity determination we look only to the objective reasonableness of the use of deadly force, “without regard to [Henderson’s] underlying intent or motivation.” 1 Here, however, the testimony of the police chief is probative of the objective reasonableness of the need of or justification for the use of lethal force: Quite separate and ■ apart from Chief Henderson’s subjective intention to wound Revill to preempt his being fatally shot by one of Henderson’s subordinates, his testimony also goes to the objective factual issue of the threat posed. Keeping in mind that Henderson had known Revill since childhood, that Rerill had asked for *627 Henderson by name to come and mediate the situation, and that they were still talking (had not broken off negotiations), Henderson’s factual testimony of shooting to wound rather than kill is probative of the extent of the threat posed, supporting Frix’s observation that the threat was non- immediate and «on-lethal. This further supports a conclusion that Henderson was not objectively reasonable when he inflicted lethal force by shooting Revill at pointblank range with a service weapon; conduct that any seasoned police officer, much less a chief, has to know has deadly potential, regardless of the point of aim or impact.

Second, according to the neighbor, Frix, when Henderson fired Revill was not lunging toward the officers or even moving -in their direction: Rather, Revill had stepped off to his right and was standing still. 2

In addition, several facts that are not in dispute militate against a finding of objective reasonableness. Revill was alone, intoxicated, and likely unable to see well in the dark trailer park. Although he was armed with an eighteen inch knife, he was facing several officers with guns drawn. Moreover, Revill was speaking with a person he knew, presumably trusted, and had asked for by name. He was contemplating suicide and was asking to speak with a psychologist. And, there is no evidence that Revill had committed a violent crime (or for that matter, any felony) at the time of the stand-off. 3

I do not deny that a jury might conclude, in this very close case, that even a veteran police chief — one who had known the victim since his childhood, whose mediation efforts had been requested by the victim and were ongoing, and who, like his officers, was armed with and had drawn and aimed a large caliber service weapon at point-blank range against a still-standing intoxicant in possession, of nothing more than a long knife or short sword— could nonetheless form a not-unreasonable belief that he, his officers, or innocent civilians were in such danger that lethal force was justified. That a jury might so find is not the test, however: The determinative objective fact remains that all of this .could just as easily add up to objective ««reasonableness in the minds of the jurors. Because a jury could go either way on objective reasonableness, depending solely on which version of the genuinely disputed material facts the jury credits, a grant of qualified immunity to Chief Henderson at this step of the summary judgment proceedings is, in my opinion, premature.

In reaching this conclusion, I remain mindful of our duty to avoid “second-guessing” the “split second judgment” of Chief Henderson and his officers during this unquestionably tense encounter with an inebriated, deeply disturbed and volatile young man. Given the conflicting eyewitness testimony, however, and viewing the disputed facts, as we must, in the light most favorable to Mace, as.the non-mov-ant, I simply cannot accept that, at this *628 liminal stage of litigation, we can hold that Henderson’s use of deadly force was objectively reasonable. 4 Several questions, including (1) whether Revill was threatening to harm the officers, (2) whether he was advancing, or retreating, or standing still when he was shot, and (3) whether the overall situation was rapidly deteriorating (as the defendant, Henderson, claims) or steadily improving (as the disinterested witness, Frix, testified) cannot be resolved without weighing the evidence and evaluating the credibility of witnesses — functions exclusively reserved for the trier of fact. 5 For all of these reasons, I would reverse the district court’s grant of Henderson’s motion for summary judgment on the question of the objective reasonableness of his use of lethal force and his entitlement, at this first step in the process, to qualified immunity, and thus would remand the case for further proceedings. 6

. Graham, 490 U.S. at 397 , 109 S.Ct. 1865 .

. In recounting the facts leading up to the shooting, the district court noted that "Revill exited the trailer and advanced down the front steps ... then took another step toward the officers and raised the sword in a threatening manner." The court either overlooked the conflicting testimony on this point or made a finding of fact, impermissibly resolving this disputed material fact in favor of Chief Henderson.

. I emphasize the narrowness of such a holding. See, e.g., Goodson v. City of Corpus Christi, 202 F.3d 730, 739 (5th Cir.2000) ("Our only holding is that we cannot tell, at the summary judgment stage of the case where we must view the evidence in the light most favorable to [Mace], whether [Henderson] acted in an objectively reasonable manner.”).

. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 , 120 S.Ct. 2097 , 147 L.Ed.2d 105 (2000) ("[T]he court must draw all reasonable inferences in favor of the non-moving party, and it may not make credibility determinations or weigh the evidence.”).

. The majority correctly points out that a determination that the force used by Henderson was excessive and thus violated Revill’s constitutional rights would not end the qualified immunity analysis; the second prong of the Saucier inquiry would require the court to determine whether "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151 . The district court noted, in dicta within a footnote, that the "[p]laintiff has not shown that Henderson's use of deadly force violated a clearly established constitutional right" and that "[a] reasonable police officer could properly believe that the use of deadly force ... would not violate a clearly established constitutional right." This conclusion may ultimately prove correct; however, this issue was not raised or briefed by the defendants on appeal and thus is not before us.

. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1314 (10th Cir.2002) (noting that the Graham reasonableness standard "implores the' court to consider factors including the alleged crime's severity, the degree of potential threat that the suspect poses to an officer’s safety ... and the suspect's efforts to resist or evade arrest").