246 F.3d 481 (5th Cir. 2001), 97-41463, Bazan v Hidalgo County

Docket Nº:97-41463
Citation:246 F.3d 481
Party Name:JUDITH BAZAN, by next friend Victoria Rose Bazan, individually and as representative of the Estate of Leonel Bazan, Jr., Deceased; VICTORIA ROSE BAZAN, a Minor, Plaintiffs-Appellees, ROSE MARIE AVALOS, Intervenor-Appellee, v. HIDALGO COUNTY, ET AL., Defendants, RAUL VARGAS, Individually and in his Official Capacity, Defendant-Appellant.
Case Date:March 27, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 481

246 F.3d 481 (5th Cir. 2001)

JUDITH BAZAN, by next friend Victoria Rose Bazan, individually and as representative of the Estate of Leonel Bazan, Jr., Deceased; VICTORIA ROSE BAZAN, a Minor, Plaintiffs-Appellees,

ROSE MARIE AVALOS, Intervenor-Appellee,

v.

HIDALGO COUNTY, ET AL., Defendants,

RAUL VARGAS, Individually and in his Official Capacity, Defendant-Appellant.

No. 97-41463

United States Court of Appeals, Fifth Circuit

March 27, 2001

Page 482

Appeal from the United States District Court for the Southern District of Texas

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

Page 483

RHESA HAWKINS BARKSDALE, Circuit Judge:

For this interlocutory appeal from the summary judgment denial of qualified immunity for Texas Department of Public Safety (TDPS) Trooper Raul Vargas' use of deadly force (the Trooper being the sole surviving witness to such use and the test being whether his actions were objectively reasonable), the threshold issue is whether the facts the district judge concluded are genuinely disputed are also material. If they are material, we lack jurisdiction.

In addition to claiming entitlement to qualified immunity, the Trooper contends the district court erred in accepting affidavits of two witnesses to events preceding the use of deadly force. He claims the affidavits conflict with the witnesses' earlier depositions. Because the facts the district court concluded are genuinely disputed are also material to the reasonableness of the Trooper's conduct, appellate jurisdiction is lacking. DISMISSED.

I.

While in his patrol car close to midnight on 26 August 1993, Trooper Vargas observed a vehicle without headlights skidding into a ditch. Its driver was the decedent, Leonel Bazan, Jr. (Bazan); his brother, Victor Bazan, was in the back; Rogelio Salinas, the front. Following his confrontation with the Trooper at the vehicle, Bazan fled into a field; Trooper Vargas chased him; and, while the two were alone there, the Trooper shot Bazan. He died from the wound.

The accounts of what occurred at the vehicle differ. Therefore, the Trooper's version is presented first, then those of the two witnesses. Next presented is the Trooper's description of events once Bazan fled into the field and he alone followed; finally, the deposition testimony of two post-deadly-force witnesses and the opinion (by affidavit) of the Trooper's expert witness.

A.

1.

Trooper Vargas' version (his deposition and affidavit) follows. Because he was alone in a dark, high-crime area, when his instructions that Bazan exit his vehicle were not obeyed, the Trooper drew his service revolver. He repeated the order, but Bazan did not immediately comply. Bazan suddenly exited; he appeared "excited" and "fidgety", talking loudly and flinging his arms, and did not follow the Trooper's order to "get down on the ground". Trooper Vargas shined his flashlight into Bazan's face; his eyes were bloodshot and glassy. (This observation was corroborated by Victor Bazan's deposition: he and Bazan had smoked marijuana earlier that day, and Bazan had been drinking alcohol throughout the day. Bazan's autopsy revealed a blood-alcohol level of 0.07 and traces of cocaine, but not marijuana.)

Bazan moved toward Trooper Vargas, who placed his foot in Bazan's abdomen and "pushed" him away. After the Trooper did so, Bazan crouched over and asked why the Trooper had "kicked" him.

Bazan told Trooper Vargas he had to urinate. The Trooper reholstered his service revolver; and, while he allowed Bazan to urinate, the Trooper smelled alcohol. Bazan was crying and asked to be left alone, saying he lived "right there", pointing east.

The Trooper reached for Bazan to lead him back to Bazan's vehicle to arrest him. Bazan grabbed the Trooper's flashlight, and asked why he was being arrested. Trooper Vargas replied it was because Bazan was drunk. The Trooper drew his

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baton, because the manner and force with which Bazan had grabbed the Trooper's flashlight showed Bazan would not be arrested willingly. Repeatedly, Bazan asked why the Trooper wanted to hit him. The Trooper replied: he did not want to; Bazan should put his hands on the vehicle.

Next, Bazan grabbed the Trooper's baton. Trooper Vargas said that, if Bazan took the baton, he would have to shoot him. Realizing he could not overpower Bazan, the Trooper released the baton and drew his revolver; Bazan complied, releasing the baton.

Trooper Vargas instructed Bazan to place his hands on the vehicle, and then walked to his patrol car to radio for assistance. Salinas told Bazan to calm down, that the Trooper was not going to hit him. But, before the Trooper called for assistance, Bazan began to run east across a field toward residences.

The Trooper chased him. In doing so, the Trooper left the other two individuals -- Victor Bazan and Salinas -- at his unattended police vehicle; he did so because his "business was with the driver", Bazan.

2.

Victor Bazan's deposition follows. Trooper Vargas instructed Bazan at least twice to exit his vehicle before he did so.1 Upon exiting, Bazan lifted his shirt, saying, "I don't have nothing on me", apparently to show he was unarmed. The Trooper then pushed Bazan back with his foot, and Bazan slipped to his knees. (Victor Bazan initially testified that Trooper Vargas "didn't kick [Bazan] ... [but rather] pushed him back" (emphasis added); later, he and counsel for the Trooper debated the applicability of the word "kick", and Victor Bazan concluded the Trooper "kicked [Bazan] down or pushed him down".)2

The Trooper told Bazan to get on the ground; Bazan refused. At that point, the Trooper pulled out his baton and "kind of, like, you know, psyched him out", so Bazan grabbed the baton.3 Trooper Vargas threatened that, if Bazan did not drop the baton, he would draw his revolver. Bazan dropped the baton.

Bazan's request to urinate was subsequent to the scuffle over the baton (in contrast to the Trooper's chronology). The Trooper reholstered his revolver at that point. Bazan asked why the Trooper wanted to arrest him; the Trooper replied it was because Bazan was drunk. Bazan told the Trooper not to hit him. (Victor Bazan did not recall the Trooper's replying he was not going to or did not want to hit him; nor did he recall Bazan's yelling at the Trooper.)

The Trooper never said anything rude or improper to the three men.4 On the

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other hand, the Trooper was not reasonable in telling Bazan to lie on the ground before he asked for a driver's license or if Bazan had been drinking.

3.

Salinas' deposition follows. He did not remember if the Trooper asked Bazan to get out of his vehicle more than once. The Trooper and Bazan used the same tone of voice -- "yelling".

As Bazan walked toward Trooper Vargas, the Trooper put his foot up and pushed Bazan's stomach, at which point Bazan fell on his knees.5 While on his knees, Bazan lifted his shirt to show he had no weapon.

When Bazan refused to lie on his face, the Trooper swung a flashlight, which Bazan caught in one hand; Trooper Vargas, with the other hand, then swung his baton, which Bazan caught as well, asking what was going on.6 Bazan released both items when the Trooper threatened to pull his revolver, but the Trooper drew it anyway and pointed it at Bazan.

The Trooper next allowed Bazan to urinate (same chronology as Victor Bazan's). Then, the Trooper went to his patrol car to use the radio. (Salinas did not recall the Trooper's telling Bazan he was under arrest.)

The Trooper never said anything improper, unprofessional, or threatening to Salinas. But, under the circumstances, the Trooper did show improper or unprofessional behavior toward Bazan: "[A]fter they were struggling with a baton and the flashlight, ... I kept wondering why he didn't arrest him instead of just letting him stand there so he could take off running".7 At some point, Salinas told Bazan to calm down, that the Trooper was not going to hit him (consistent with the Trooper's version).

After Bazan ran into the field and the Trooper chased him, Salinas and Victor Bazan could see nothing but a shaking flashlight. After waiting about five minutes, they drove away.

B.

Trooper Vargas' account of the events after Bazan began fleeing follows. In the field, the Trooper paced Bazan, who was not running fast and at times stumbled. The Trooper noted Bazan was larger than he, but probably not in better physical condition. (Bazan and the Trooper were each five feet and 11 inches in height; but, while Bazan weighed approximately 225 pounds, the Trooper weighed only approximately 175 pounds, 50 less than Bazan.) Although he repeatedly encouraged Bazan to surrender, Bazan replied he was almost

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home. Bazan eventually tripped and fell; the Trooper tried to keep him down, but Bazan grabbed his flashlight. The Trooper was about to hit Bazan's arm with his baton; but, as Bazan raised his arm, the Trooper hesitated, not wanting to hit Bazan in the head; Bazan then grabbed the baton as well.

They were both standing, struggling, and the Trooper released his flashlight to try to apply a carotid hold on Bazan from behind. They fell to the ground; the Trooper was on his back, beneath Bazan, with the front of his body to Bazan's back. While on the ground, Trooper Vargas was approximately six to eight inches higher than Bazan, and his left arm was "around and over [Bazan's] head".

Bazan began swinging the flashlight over his head to hit the Trooper on the head. Bazan also reached back and tried to choke the Trooper, making him gag. Then the Trooper realized Bazan was biting his left fingers, such that he thought he might lose them. Trooper Vargas also realized his left arm was being immobilized, a blow to his head with his flashlight could knock him out, and Bazan could then kill him with the Trooper's revolver. Therefore, the Trooper discharged his revolver into Bazan's...

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