130 F.3d 96 (5th Cir. 1997), 96-40634, Colston v. Barnhart

Docket Nº:96-40634.
Citation:130 F.3d 96
Party Name:Lorenzo COLSTON, Plaintiff-Appellee, Yolanda Michelle Colston, Individually and as Next Friend of Lauren Colston and Quinton Colston, Intervenor Plaintiff-Appellee, v. Bryan BARNHART, Texas Department of Public Safety Officer, et al., Defendants, Bryan Barnhart, Texas Department of Public Safety Officer, Defendant-Appellant.
Case Date:November 19, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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130 F.3d 96 (5th Cir. 1997)

Lorenzo COLSTON, Plaintiff-Appellee,

Yolanda Michelle Colston, Individually and as Next Friend of

Lauren Colston and Quinton Colston, Intervenor



Bryan BARNHART, Texas Department of Public Safety Officer,

et al., Defendants,

Bryan Barnhart, Texas Department of Public Safety Officer,


No. 96-40634.

United States Court of Appeals, Fifth Circuit

November 19, 1997

Page 97

Curtis B. Stuckey, Stuckey & Garrigan, Nacogdoches, TX, for Plaintiff-Appellee.

Thomas Stefan Allen, Nacogdoches, TX, for Yolanda Michelle Colston.

Demetri Jane Anastasiadis, Ann Kraatz, Susan Elizabeth Werner, Asst. Atty. General, Austin, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Texas.

Before KING, DAVIS and DeMOSS, Circuit Judges.

DAVIS, Circuit Judge:

Trooper Bryan Barnhart appeals the denial of his motion for summary judgment based on qualified immunity. Because Barnhart's use of deadly force to defend himself and others from plaintiff Lorenzo Colston was objectively reasonable, we conclude that the district court erred in denying summary judgment on grounds of qualified immunity. Accordingly, we reverse and render.


On September 29, 1993, at approximately 9:30 p.m., Texas State Policeman Bryan Barnhart was driving on a dark, isolated part of U.S. 175 in Henderson County, Texas. Around that time, Trooper Barnhart directed Marcus Fields to the shoulder of the road because Fields' automobile had a defective headlight. Appellee Colston was a passenger in Fields' car. Barnhart learned during a routine license check that Fields had an outstanding traffic warrant and placed him under arrest. Fields informed Barnhart that his wrists hurt because of recent surgery. As a result, Barnhart did not use handcuffs to secure Fields' arms behind his body; instead, he used a flex cuff to secure Fields' hands in front of his body. Barnhart decided that he would release Fields' car to Colston if he had a driver's license and could safely drive the vehicle. Barnhart asked Fields if Colston had a driver's license. Fields said that he did.

Barnhart then approached the passenger side of Fields' car and asked Colston to step out so he could see his driver's license. As he stepped out of the car, Colston told Barnhart that he did not have a license and that he did not drive. Colston was approximately 6'1" and weighed 225 pounds; Barnhart was about 5'6" and weighed 160 pounds.

Around the time that Barnhart began talking to Colston, Henderson County Deputy Sheriff Jim Langford arrived at the scene, but stood near Barnhart's patrol car and did not immediately approach Barnhart and Colston.

Barnhart proceeded to question Colston. He first asked Colston how old he was, and Colston replied that he was 18 years old. 1 Barnhart asked Colston if he had ever driven before; Colston stated that he had not. After retrieving his clipboard from his car, Barnhart asked Colston to spell his last name; Colston complied. Barnhart then asked Colston for his first name. Colston stated that it was "Sylvester," which he was unable to spell. After two failed attempts at spelling "Sylvester," Colston told Barnhart his name was Leo. Barnhart asked Colston what his name was three more times; Colston stated it was Leo. Barnhart then asked Colston what his middle name was, and he replied that he did not have one.

Barnhart walked over to Fields and asked him what Colston's name was; Fields answered that it was Leo. Barnhart asked

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Fields about the name Sylvester. Fields stated that he thought it was Colston's middle name.

Barnhart returned to Colston and again asked him what his middle name was. Colston again said that he did not have a middle name. Barnhart placed his clipboard on Field's car, and asked Colston whether he was carrying any weapons. Colston responded that he was not. 2

Barnhart asked Colston to turn and face the other direction, Colston took two steps back but did not turn around. Barnhart ordered Colston to get down on his knees; Colston turned and placed his hands above his head, but did not get on his knees. Barnhart repeated the order. As Colston went to his knees, Barnhart pulled his baton. Once Colston was on his knees, Barnhart told Colston to remain still and cross his feet, and Colston complied. Colston asked Barnhart, "why y'all treating me like this?" Barnhart replied that it was because Colston would not tell him who he was. Colston then informed Barnhart that his name was Lorenzo Colston and that he did have a driver's license in his wallet. Colston then turned his head and looked at Barnhart.

Barnhart ordered Colston to look straight ahead and to get to the ground. Colston got on all fours, but then lifted one leg up. 3 Langford, who had walked over to Barnhart's side moments earlier, also ordered Colston to get on the ground. Colston told the officers he would not get on the ground and began to stand up. Both officers pushed Colston in an attempt to prevent him from standing up. As they were doing this, Barnhart and Langford repeatedly ordered Colston to get down. Colston resisted their efforts and forced his way to his feet. Barnhart began striking Colston with his baton, and Langford tried to grab Colston. Colston violently resisted and knocked Langford to the ground with a single hard blow. With Langford down, Barnhart struggled to control Colston; Colston struck Barnhart in the face and knocked him to the ground. The blow broke Barnhart's glasses and dazed him. Langford regained his feet and charged Colston. Colston knocked him to the ground next to Barnhart, leaving him limp and motionless.

From his prone position, Barnhart drew his gun. Barnhart aimed at Colston, who was standing between him and Langford, and fired a shot that missed. Colston turned, stepped over Barnhart's outstretched legs, and took about two steps away from Barnhart directly toward Barnhart's patrol car, where Barnhart's shotgun was located. At this moment Barnhart fired twice, hitting Colston in the back of his right arm and in his buttocks.

A video recorder mounted on Barnhart's patrol unit was operating from the time Barnhart stopped his vehicle. The incident described above was captured on videotape, which is part of the record.

Colston filed a 42 U.S.C. § 1983 action alleging, inter alia, that Barnhart violated his Fourth Amendment rights by using excessive force against him. Barnhart moved for summary judgment on the ground of qualified immunity. The district court denied Barnhart's motion for summary judgment after concluding that material issues of fact were presented which precluded summary judgment.



We have jurisdiction to hear appeals from district court orders denying summary judgment on the basis of qualified immunity when the appeal is based on an issue of law. Cantu v. Rocha, 77 F.3d 795, 802 (5th Cir.1996). The district court's determination that fact issues were presented that precluded summary judgment does not necessarily deny us jurisdiction over this appeal. Coleman v. HISD, 113 F.3d 528, 531 (5th Cir.1997). We can determine as a matter of law whether Barnhart is entitled to qualified immunity after accepting all of Colston's factual

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allegations as true. See Cantu, 77 F.3d at 802-3. We therefore have interlocutory jurisdiction to determine the legal issue of whether Barnhart's conduct was objectively reasonable. Id. Mitchell v...

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