381 F.3d 391 (5th Cir. 2004), 03-40863, Flores v. City of Palacios

Docket Nº:03-40863.
Citation:381 F.3d 391
Party Name:Erika FLORES, Plaintiff-Appellee, v. CITY OF PALACIOS, et al., Defendants, Wilbert Kalina, also known as Billy Kalina, Defendant-Appellant.
Case Date:August 10, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 391

381 F.3d 391 (5th Cir. 2004)

Erika FLORES, Plaintiff-Appellee,


CITY OF PALACIOS, et al., Defendants,

Wilbert Kalina, also known as Billy Kalina, Defendant-Appellant.

No. 03-40863.

United States Court of Appeals, Fifth Circuit

August 10, 2004

Page 392

[Copyrighted Material Omitted]

Page 393

Bobby Dewayne Brown (argued), Law Offices of Bobby D. Brown, Victoria, TX, for Plaintiff-Appellee.

William S. Helfand (argued), Norman R. Giles, Chamberlain, Hrdlicka, White, Williams & Martin, Houston, TX, for Defendant-Appellant.

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

Before KING, Chief Judge, and BENAVIDES and CLEMENT, Circuit Judges.

BENAVIDES, Circuit Judge:

Officer Wilbert Kalina appeals the district court's denial of his motion for summary judgment. On the evening of July 16, 2002, Kalina sought to detain Erika Flores because she was parked on the wrong side of the road and because, when he shined a spotlight on her car, several people fled from the vicinity. Flores did not respond to Kalina's repeated commands that she stop and instead drove away. Kalina shot her car to prevent her escape. When Flores stopped, Kalina arrested her for evading detention.

Flores sued Kalina and the City of Palacios pursuant to 42 U.S.C. § 1983. She claimed Kalina subjected her to an excessive use of force, unlawful arrest, and malicious prosecution in violation of the Fourth Amendment. Flores also claimed that Kalina's conduct violated the Fourteenth Amendment by depriving her of her good name, reputation, and personal property without due process of law.

The district court found there were genuine issues of material fact as to each of the Fourth Amendment claims and therefore denied Kalina's motion for summary judgment on those claims. Flores v. City of Palacios, 270 F.Supp.2d 865, 872-73 (S.D.Tex.2003). The district court dismissed the Fourteenth Amendment substantive due process claims because it found those claims were properly brought under the Fourth Amendment. Id. at 873. Kalina timely appealed the partial denial of summary judgment on the Fourth Amendment claims.

We hold that the district court properly denied summary judgment on the excessive force claim. The district court erred, however, in denying summary judgment on the unlawful arrest and malicious prosecution claims. We therefore affirm in part, and reverse and render in part.


The denial of a motion for summary judgment based on qualified immunity is immediately appealable under the collateral order doctrine "to the extent that it turns on an issue of law." Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Under the doctrine of qualified immunity, government

Page 394

officials performing discretionary functions are shielded from civil liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

When a defendant appeals a denial of summary judgment based on qualified immunity, we "have interlocutory jurisdiction to determine whether [the plaintiff's] summary judgment facts state a claim under clearly established law." Nerren v. Livingston Police Dep't, 86 F.3d 469, 472 (5th Cir. 1996).

We review de novo the scope of clearly established law and the objective reasonableness of the defendant government official's actions. Thompson v. Upshur County, Tex., 245 F.3d 447, 456 (5th Cir. 2001). Because our jurisdiction is limited to a review of questions of law, we "consider only whether the district court erred in assessing the legal significance of the conduct that the district court deemed sufficiently supported for purposes of summary judgment." Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004) (en banc). We may review the district court's conclusion that issues of fact are material, but not the conclusion that those issues of fact are genuine. Reyes v. City of Richmond, Tex., 287 F.3d 346, 350-51 (5th Cir. 2002).


When a district court fails to set out the factual disputes it deems genuine, "we may be required to review the record in order to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed."1 Kinney, 367 F.3d at 348 (internal quotation marks omitted).

In this case, the district court generally identified the relevant factual disputes, but the parties identified further factual disputes. We therefore accept without review those facts identified by the district court and determine which other facts the district court likely assumed. Id. at 348 n. 12. We begin by identifying those facts we must accept for purposes of this appeal. We consider first the undisputed facts, next the facts alleged by Flores, and last the facts alleged by Kalina.

The district court laid out the following undisputed facts: Kalina's shot entered Flores's bumper just above the tailpipe and continued through the bumper and the muffler. The bullet ultimately became lodged in the back of the muffler. Flores suffered no immediate physical injury when her car was shot, though her car was damaged. Flores, who was sixteen years old at the time, violated an 11:00 p.m. weeknight curfew for minors. Later investigation revealed alcohol in the area surrounding where she had parked her car, though there is no evidence to suggest that she had been drinking. Kalina charged Flores with evading detention in a motor vehicle, but the charge was later dismissed.

We assume that the district court most likely accepted all of the facts alleged by Flores as sufficiently supported for summary judgment purposes. Flores's factual allegations, which we assume the district court accepted, are as follows: On the evening of July 16, 2002, she visited her cousin and some friends at her aunt's house. At approximately 11:00 p.m., she got into her car, which was parked on the edge of her aunt's property just next to

Page 395

the driveway. She noticed a police car drive past her, but she did not see any officers exit the car or hear an officer say anything. As she pulled away from the house and onto the road, she heard a loud bang and felt something hit her car. She immediately stopped and got out of the car to investigate the noise. Kalina ran up to her and exclaimed, "I almost killed you!" He then forced her to the ground, handcuffed her, and told her she was under arrest. As a result of this incident, Flores suffers from post-traumatic stress disorder, mental anguish, headaches, and nightmares.

Absent any language specifically suggesting otherwise, we do not assume that the district court accepted any facts alleged by Kalina. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ("[T]he court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that the evidence comes from disinterested witnesses.") (internal quotation marks omitted). The only facts adopted by the district court in support of Kalina's claim of qualified immunity are included in its analysis of Flores's false arrest claim:

Kalina alleges that he shined a spotlight on Flores's car; that people began to flee from the area around the car; that he called, "Police. Stop," but a person running toward the car did not stop; and that as he ran up behind the car, still calling out, "Police. Stop," Flores drove away. Flores does not directly contest these allegations: she admits seeing the patrol car drive past her, having her music too loud for her to have heard Officer Kalina shout, "Police. Stop," and beginning to drive away. Under this factual scenario, a reasonable officer in Kalina's position could have believed he had probable cause to arrest Flores.

Flores, 270 F.Supp.2d at 871 (internal citations omitted).2

We assume the district court accepted all the facts mentioned above for purposes of this summary judgment motion.


In reviewing a government official's motion for summary judgment based on qualified immunity, we undertake a two-step analysis. First, we assess whether a statutory or constitutional right would have been violated on the facts alleged. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If we find a violation is properly alleged, we proceed to the second step, in which we determine whether the defendant's actions violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quoting Harlow, 457 U.S. at 818, 102 S.Ct. 2727).3

Page 396


Kalina argues that he is entitled to qualified immunity on the excessive force claim because Flores did not satisfy the elements of the claim and because his actions were objectively reasonable in light of clearly established law. The district court denied Kalina's motion for summary judgment on Flores's excessive force claim because it found a genuine issue of material fact regarding the objective reasonableness of Kalina's use of deadly force.


To bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must first show that she was seized. See Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Next she must show that she suffered (1) an injury that (2) resulted directly and only from the use of force that was excessive to the need...

To continue reading