Pasco ex rel. Pasco v. Knoblauch

• Decision Date: 28 April 2009
• Docket Number: No. 08-60242.,08-60242.
• Parties: Roy A. PASCO, by and through his grandmother and next friend, Beverly A. PASCO; Brian K. Pasco, by and through his grandmother and next friend, Beverly A. Pasco, Plaintiffs-Appellees, v. Brad KNOBLAUCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

566 F.3d 572

Roy A. PASCO, by and through his grandmother and next friend, Beverly A. PASCO; Brian K. Pasco, by and through his grandmother and next friend, Beverly A. Pasco, Plaintiffs-Appellees, v. Brad KNOBLAUCH, Defendant-Appellant.

No. 08-60242.

United States Court of Appeals, Fifth Circuit.

April 28, 2009.

Jim D. Waide, III (argued), Waide & Associates, Richard Shane McLaughlin, McLaughlin Law Firm, Tupelo, MS, for Plaintiffs-Appellees.

William T. Siler, Jr. (argued), William Brett Harvey, Phelps Dunbar, Jackson, MS, Mark Nolan Halbert, Phelps Dunbar, Tupelo, MS, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Mississippi.

Before GARWOOD, GARZA and OWEN, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant Officer Brad Knoblauch appeals the district court's denial of his motion for summary judgment. For the following reasons, we reverse.

I

On April 29, 2000, Officer Brad Knoblauch ("Knoblauch") of the Holly Springs Police Department was on a routine late-night/early-morning patrol when he observed Roy Pasco ("Pasco") driving erratically. Believing Pasco was intoxicated, Knoblauch followed him. When Pasco failed to observe a stop sign, Knoblauch activated his lights and siren and Pasco pulled over to the side of the road. As Knoblauch exited his patrol car to approach Pasco's vehicle, Pasco sped off. Knoblauch returned to his car and began to chase Pasco. The pursuit took place on a rural, curvy two-lane road at speeds in excess of ninety miles per hour. One minute into the chase, Knoblauch's supervisor radioed an order for Knoblauch to terminate the chase.

Pasco argues that Knoblauch did not back off of the chase and instead bumped Pasco's car from behind, sending it off the road into a ravine. Pasco died from the injuries he suffered in the crash. For the purposes of summary judgment and this appeal, Knoblauch has conceded Pasco's version of events.

This case has a complicated procedural history, and the instant appeal is our third consideration of this set of facts. Plaintiffs, Pasco's surviving family, originally sued the city of Holly Springs under 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth Amendments (Pasco I). This suit did not name Knoblauch as a defendant. The district court granted summary judgment in favor of the city on the grounds that no basis for municipal liability existed and that Pasco had failed to establish a Fourth Amendment claim. On appeal we affirmed the summary judgment because no municipal liability existed, but we did not reach the Fourth Amendment question. Pasco v. Holly Springs, 101 Fed.Appx. 6 (5th Cir.2004) (unpublished). While Pasco I was pending before us, the Plaintiffs brought suit against Knoblauch individually (Pasco II). The district court found that Pasco II raised no new facts or arguments beyond those in Pasco I and granted Knoblauch's motion for summary judgment because Pasco had failed to establish a Fourth Amendment claim. On appeal in Pasco II we reversed the summary judgment, holding that questions of fact existed as to whether Knoblauch intentionally bumped Pasco's car, and remanded. Pasco v. Knoblauch, 223 Fed.Appx. 319 (5th Cir. 2007) (unpublished).

Seven weeks after our decision in Pasco II the Supreme Court decided Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), which established a rule for § 1983 actions against police officers involved in high-speed chases. In light of Scott, Knoblauch moved for summary judgment based on qualified immunity. This was the first time he raised this defense. Pasco moved to strike the affirmative defense as waived. The district court denied summary judgment based on its findings that Knoblauch had waived his qualified immunity defense by failing to raise it in a timely fashion, and that Knoblauch violated clearly established Fourth Amendment law when he ended the chase by bumping Pasco from the road. The district court also granted Pasco's motion to strike. Knoblauch appeals the denial of summary judgment.

II

We review the district court's denial of summary judgment predicated on qualified immunity de novo. Haggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004). In an interlocutory appeal in which the defendant asserts qualified immunity, if the district court found that factual disputes exist we accept the plaintiff's version of the facts as true to the extent supported by the summary judgment record. Id.

Knoblauch appeals the district court's order denying his motion for summary judgment based on qualified immunity. In this order, as well as in the memorandum opinion explaining the reasons for the denial, the district court also granted Pasco's motion to strike the affirmative defense as waived. Despite this somewhat confusing posture, it is clear that the district court denied summary judgment because it found Knoblauch had waived the defense, and also because it concluded that qualified immunity would not protect Knoblauch from suit since he violated clearly established Fourth Amendment law. Importantly, the district court based both determinations on conclusions of law. Therefore, we will review the waiver issue and the Fourth Amendment issue de novo since both form the basis for the denial of summary judgment. See, e.g., Murray v. Crossmark Sales, Inc., 163 Fed.Appx. 339, 341-42 (5th Cir.2006) (unpublished) (reviewing de novo the district court's summary judgment conclusion that an affirmative defense was not waived under FED. R. CIV. P. 8(c)); Eddy v. Virgin Islands Water and Power Auth., 256 F.3d 204, 208-09 (3d Cir.2001) (reviewing de novo the district court's summary judgment conclusion that qualified immunity was waived because it was not raised in the first responsive pleading, and observing that "[i]f we have jurisdiction to review an order rejecting qualified immunity at the summary judgment stage, our review of the order is plenary").

III

A

We first consider our jurisdiction to hear this interlocutory appeal. Generally, denials of summary judgment are not final orders. See Mendenhall v. Riser, 213 F.3d 226, 229 (5th Cir.2000). However, the denial of qualified immunity on summary judgment is immediately appealable under the collateral order doctrine if based on an issue of law. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Mendenhall, 213 F.3d at 229-30. In other words, a denial of summary judgment based on qualified immunity is deemed a final decision under 28 U.S.C. § 1291, and thus our jurisdiction is proper, "to the extent that the question on appeal is whether the undisputed facts amount to a violation of clearly established law." Haggerty, 391 F.3d at 655. If the district court found that genuine factual disputes exist, we must accept the plaintiff's version of the facts as true to the extent supported by the summary judgment record. Id. The Supreme Court has recognized the importance of interlocutory review of orders denying a qualified immunity defense because these orders are effectively unreviewable, since "review after trial would come too late to vindicate one important purpose of qualified immunity—namely, protecting public officials, not simply from liability, but also from standing trial." Johnson v. Jones, 515 U.S. 304, 312, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (internal quotation omitted).

Pasco argues that we lack jurisdiction to hear this appeal because there are material facts in dispute. However, the district court did not base its denial of summary judgment on the existence of material factual disputes.¹ On the contrary, at the outset of its analysis the district court explicitly adopted Pasco's version of the facts and Knoblauch has conceded Pasco's version of the events for purposes of summary judgment.² The district court engaged in a legal analysis of Fourth Amendment case law to reach its conclusion that it was clearly established in 2000 that Knoblauch's conduct was unlawful. It is clear from the district court's order that the denial of summary judgment was based on legal conclusions regarding Fourth Amendment reasonableness, applied to the facts as Pasco alleged them. Where the district court relies on one party's version of the facts to make a ruling of law denying summary judgment based on qualified immunity, our jurisdiction is proper.³ See Haggerty, 391 F.3d at 655.

B

We now address whether the district court properly held that Knoblauch waived his defense of qualified immunity by failing to raise the defense until the motion for summary judgment. This is an issue of law over which we have jurisdiction under the collateral order doctrine. See Eddy, 256 F.3d at 209 (finding that the collateral order doctrine permitted review of the district court's determination that qualified immunity was waived as untimely under Rule 8(c)). We conclude that the district court applied the incorrect legal standard for deciding whether an affirmative defense was waived.

As an affirmative defense, qualified immunity must be pled and proved by the defendant. See Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); FED. R. CIV. P. 8(c). Generally, under Rule 8(c) affirmative defenses must be raised in the first responsive pleading. However, "[w]here the matter is raised in the trial court in a manner that does not result in unfair surprise . . . technical failure to comply precisely with Rule 8(c) is not fatal." Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir.1983). An affirmative defense is not waived if the defendant "raised the issue at a pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond." Id. at 856. We have noted that a failure to plead an affirmative defense in the first response is "especially excusable" where the law on the topic is not clearly settled. See Johnson v. Johnson, 385 F.3d 503, 516 n. 7 (5th Cir.2004).

Despite referencing the above law, ...