Reyes v. City of Richmond, Tex.

• Citation: 287 F.3d 346
• Decision Date: 28 March 2002
• Docket Number: No. 01-20398.,01-20398.
• Parties: Alex REYES; Virginia Martinez, Plaintiffs-Appellees, v. CITY OF RICHMOND, TEXAS; et al., Defendants, Dan Cox, Sergeant, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

287 F.3d 346

Alex REYES; Virginia Martinez, Plaintiffs-Appellees, v. CITY OF RICHMOND, TEXAS; et al., Defendants, Dan Cox, Sergeant, Defendant-Appellant.

No. 01-20398.

United States Court of Appeals, Fifth Circuit.

March 28, 2002.

Darryl Carter (argued), Glickman & Hughes, Houston, TX, for Plaintiffs-Appellees.

William S. Helfand (argued), Kevin D. Jewell, Magenheim, Bateman & Helfand, Houston, TX, for Defendant-Appellant.

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

Before SMITH and DeMOSS, Circuit Judges, and DUPLANTIER,¹ District Judge.

DeMOSS, Circuit Judge:

Plaintiff Alex Reyes was shot by Defendant Dan Cox of the Richmond Police Department. Reyes, who is now confined to a wheelchair, sued Cox and the City of Richmond alleging violations of Reyes' Fourth and Fourteenth Amendment rights to be free from the use of excessive force. See 42 U.S.C. § 1983. Plaintiff Virginia Martinez, Reyes' wife, also seeks damages for loss of consortium.

Officer Cox moved for summary judgment based on qualified immunity. The magistrate judge denied the motion, positing that "[g]iven the widely different witness accounts of the shooting of Plaintiff Reyes, the case simply cannot be resolved on summary judgment." Officer Cox appealed the magistrate's decision to this Court, arguing: (1) that we have jurisdiction over this interlocutory appeal under the "collateral order doctrine," and (2) that, under the theory of qualified immunity, he is entitled to summary judgment as a matter of law. Because we conclude that Officer Cox's "arguments on appeal depend upon portions of his statement of facts that differ from the facts the district court assumed," White v. Balderama, 161 F.3d 913, 914 (5th Cir.1998), we dismiss Officer Cox's appeal for lack of jurisdiction and remand to the trial court for resolution of the parties' claims.

I. BACKGROUND

A. The Uncontested Facts

On November 7, 1999, Officers Stephen Polinski, Brian Culpepper, and the Defendant Officer Cox attempted to execute an arrest warrant against Plaintiff Reyes for failure to appear on a possession of controlled substance charge. When Reyes saw the officers approaching his apartment, he jumped out the window and fled.

The same officers returned to Reyes' apartment complex later that same day. While there, they saw Reyes climb into the passenger seat of a car. The officers returned to their respective police cars to give chase. Officer Polinski and Officer Cox followed behind Reyes' car, while Officer Culpepper took a different route.

A few blocks away, Reyes jumped out of the passenger side of the car. Officer Polinski, who was closest to Reyes, also jumped out of his car and chased the unarmed Reyes on foot between two houses. Officer Cox observed these events, and advised Officer Culpepper about the chase's status. Officers Cox and Culpepper both parked their cars on the next street over. Officer Cox claims that before he exited his patrol car, he heard someone call out for help. Then, according to his testimony, he followed the voice to a backyard catty-cornered to the yard in which Reyes and Officer Polinski were already struggling. The struggle was taking place next to a chain-link fence on the opposite side of the other backyard from Defendant Cox's position.

Officer Culpepper was across the back fence from, and on the same side of the yard as, Officers Polinski and Reyes. A civilian witness, Jimmy Williams, was in the same backyard as Officer Culpepper. These are the only facts upon which all the parties' versions agree.

B. The Disputed Facts

According to Officer Cox, when he arrived on the scene he called out to Officer Polinski, but received no answer. Officer Cox described the scene as well lit, but he was unable to see if Reyes was armed. Officer Cox claims that he twice called out for Reyes to stop, then fired two warning shots, and then fired a third shot into Reyes' abdomen to protect Officer Polinski. Officer Cox also asserts that, after Reyes was shot, Reyes ran a few steps away from Officer Polinski and then fell. He further testified that, had Reyes already broken free of Officer Polinski's grip and begun to flee the scene, shooting him would be an unreasonable act.

According to Officer Polinski, he caught Reyes by his shirt and the two struggled when Reyes tried to escape. After falling to the ground, Officer Polinski laid on his right side to prevent Reyes from gaining access to his firearm. He held Reyes by his legs as Reyes continued to hit, kick, and bite Polinski. Officer Polinski claims he only heard two shots, and that, after the second one was fired, Reyes jumped from his grip, stumbled a few steps, and then fell to the ground. Officer Polinski described the backyard as dimly lit.

According to Officer Culpepper, he yelled at Reyes to get off of Officer Polinski. He testified that Officer Polinski was the only officer in serious danger from Reyes. He also testified that he only heard two gunshots, and that Reyes had stepped off Officer Polinski and run about five steps before he was shot. His testimony reflected his view that the threat to Officer Polinski was over as soon as Reyes escaped his grip and attempted to flee. In Officer Culpepper's opinion, the backyard was not well lit.

According to Reyes, when Polinski caught up with him, he fought in order to escape. When he escaped Polinski's grip, he ran. After taking about five steps, he felt the bullet hit him. Although his appellate brief concedes that there were three shots fired, he testified that he did not hear warning shots. Reyes also maintains that the officers did not verbally warn him before the shooting.

Finally, according to the witness Williams, his neighbors' dog was biting Officer Polinski during his scuffle with Reyes. Williams also reported hearing three shots, but testified that the third was fired after Reyes had broken free from Polinski's grip and had run at least ten feet.

The parties further dispute the evidentiary effect of Reyes' gunshot wound. Officer Cox claims the point of entry indicates that Reyes was not running away; Reyes argues that the wound is consistent with his fleeing from the scene.

C. The Magistrate Order

The parties agreed to have their claims heard by a magistrate judge pursuant to 28 U.S.C. § 636(c) and FED. R. CIV. PROC. 73. In denying Officer Cox's motion for summary judgment, the Magistrate explained:

[T]he accounts of the five witnesses lend themselves to at least two significantly different fact scenarios, either of which is supported by sufficient evidence to convince a reasonable jury of that version's veracity....

According to one possible reading of the testimony, Plaintiff Reyes was posing a great threat of injury to Officer Polinski by resisting arrest. The poor lighting in the backyard where they fought made it difficult to tell whether Plaintiff Reyes had access to Officer Polinski's gun or to tell how severely Officer Polinski was injured. Although Plaintiff Reyes' outstanding warrant was for a nonviolent offense, his actions against Officer Polinski were violent and posed an immediate danger to Officer Polinski's safety. Defendant Cox could not run the risk of delaying the capture of Plaintiff Reyes by first employing nondeadly means, in part, because Plaintiff Reyes refused to yield in this attack despite the officers' warnings. Defendant Cox shot and hit Plaintiff Reyes while Plaintiff Reyes was in the midst of assaulting Officer Polinski.

According to another possible version, perhaps the closest to an opposite account, an unarmed Plaintiff Reyes was struggling to escape from Officer Polinski's grasp in a well-lighted backyard. Officer Polinski's strong hold on Plaintiff Reyes' leg caused Plaintiff Reyes to kick and stomp Officer Polinski in his effort to break free. The homeowners' dog joined the scuffle, possibly biting Officer Polinski as he was lying on the ground. Finally...