Manis v. Lawson

• Decision Date: 15 October 2009
• Docket Number: No. 08-30987.,08-30987.
• Citation: 585 F.3d 839
• Parties: Bryce MANIS; Madison Manis, through their natural tutrix, Tonya Plaisance, Plaintiffs-Appellees, v. Arthur LAWSON, in his capacity as Chief of Police for the City of Gretna; Gretna City; Douglass Zemlik, Officer, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

585 F.3d 839

Bryce MANIS; Madison Manis, through their natural tutrix, Tonya Plaisance, Plaintiffs-Appellees, v. Arthur LAWSON, in his capacity as Chief of Police for the City of Gretna; Gretna City; Douglass Zemlik, Officer, Defendants-Appellants.

No. 08-30987.

United States Court of Appeals, Fifth Circuit.

October 15, 2009.

Julian R. Murray (argued), Chehardy, Sherman, Ellis, Murray, Recile, Griffith, Stakelum & Hayes, L.L.P., Metairie, LA, for Plaintiffs-Appellees.

Franz L. Zibilich (argued), Martiny & Associates, Metairie, LA, for Defendants-Appellants.

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

Before JONES, Chief Judge, and PRADO and HAYNES, Circuit Judges.

EDITH H. JONES, Chief Judge:

Police officer Douglass Zemlik ("Zemlik") fatally shot Michael D. Manis, Jr., ("Manis") while responding to a call that Manis's vehicle was idling on railroad tracks at an intersection in Gretna, Louisiana. Manis's surviving children brought a 42 U.S.C. § 1983 action alleging that Zemlik used excessive force in violation of the Fourth Amendment. The district court tersely denied Zemlik's motion to sustain qualified immunity without a written explanation other than to conclude that material fact issues exist.¹ Zemlik has filed this interlocutory appeal. Because the material facts in this case are undisputed and do not establish a constitutional violation, we hold that summary judgment in favor of Zemlik is appropriate. Alternatively, even if Zemlik used excessive force, he is nonetheless entitled to qualified immunity because his conduct was not objectively unreasonable in light of the clearly established law at the time of his actions. We reverse and remand to the district court for entry of summary judgment.

I. BACKGROUND

Around 3:00 a.m. on October 3, 2005, David and Janet Jenkins, a husband-and-wife delivery team operating a tractor-trailer rig, stopped at a red light at the intersection of Gretna Boulevard and Belle Chasse Highway. Directly in front of the rig, Manis's Jeep Cherokee was idling on the intersection's railroad tracks and did not move after two light cycles passed and the Jenkinses sounded their horn. David Jenkins called the Gretna Police Department and two units responded. Sergeant Scott Vinson ("Vinson") parked his cruiser in front of Manis's SUV, approached and observed Manis sleeping or passed out in the driver's seat, and then walked around the back of the car to approach on the passenger's side. Officer Douglass Zemlik parked behind the Jenkinses' rig and approached on the driver's side. At some point, Vinson opened the passenger's side door and placed the Jeep in "park." While identifying themselves as policemen, both officers verbally and physically tried to wake Manis.

The parties dispute what happened after Manis was roused. According to Zemlik and Vinson, Manis immediately began shouting obscenities and flailing his arms aggressively at them. After Zemlik opened the driver's side door and attempted to calm Manis, Vinson turned the ignition off and walked around the front of the vehicle to join Zemlik. Manis, still seat-belted, then began to repeatedly reach underneath the front seat. The officers drew their weapons and ordered Manis several times to show his hands. He ignored them. When Manis appeared to retrieve some object and began to straighten up, Zemlik fired four rounds, killing Manis.

The Appellees contend that Manis did not curse the officers and only moved his arms out of drunken confusion, not combativeness. They state that Manis, oblivious to his fastened seat belt, tried unsuccessfully to get out of the Jeep at Zemlik's instruction. Manis then leaned forward over the front seat in a stupor, leading the officers to order him to show his hands. According to the Appellees, Zemlik shot Manis as he was attempting to straighten up and raise his hands in a display of submission. No weapon was recovered.

An autopsy showed that Manis was drunk and under the influence of cocaine and barbiturates at the time of his death.

II. JURISDICTION AND STANDARD OF REVIEW

"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.'" Flores v. City of Palacios, 381 F.3d 391, 393 (5th Cir.2004) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985)). Where, as here, the district court finds that genuinely disputed, material fact issues preclude a qualified immunity determination, this court can review only their materiality, not their genuineness. Wagner v. Bay City, Tex., 227 F.3d 316, 320 (5th Cir.2000) (citing Colston v. Barnhart, 130 F.3d 96, 98 (5th Cir. 1997)). If a factual dispute must be resolved to make the qualified immunity determination, that fact issue is material and we lack jurisdiction over the appeal. See Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 483 (5th Cir.2001).

In this case, the district court held without explanation that "there are disputed issues of material fact as to whether the defendant's conduct was objectively reasonable in light of the legal rules clearly established at the time of the incident." When the district court

denies the motion simply because "fact issues" remain, this Court has two choices. We can either scour the record and determine what facts the plaintiff may be able to prove at trial and proceed to resolve the legal issues, or remand so that the trial court can clarify the order.

Thompson v. Upshur County, TX, 245 F.3d 447, 456 (5th Cir.2001) (citations omitted). Given the limited record here, and because we are cognizant that qualified immunity entitles a defendant to avoid the "burdens of litigation" as well as liability, Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815, we have reviewed the record, rather than remand, and thus "resolv[e] immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991) (per curiam).

Whether there are material issues of fact is reviewed de novo. Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 382 (5th Cir.2009) (citing Freeman v. Gore, 483 F.3d 404, 410 (5th Cir.2007)). The plaintiff's factual assertions are taken as true to determine whether they are legally sufficient to defeat the defendant's motion for summary judgment. Freeman, 483 F.3d at 410. "To negate a defense of qualified immunity and avoid summary judgment, the plaintiff need not present `absolute proof,' but must offer more than `mere allegations.'" Ontiveros, 564 F.3d at 382 (quoting Reese v. Anderson, 926 F.2d 494, 499 (5th Cir.1991)).

III. DISCUSSION

After Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (overruling in part Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)), a court may conduct the two-pronged qualified immunity inquiry — whether (1) defendant's conduct violated a constitutional right and (2) that right was clearly established at the time of the misconduct — in any sequence. Here, the summary judgment record supports a finding in favor of Officer Zemlik on both prongs.

A. Constitutional Violation

To prevail on an excessive force claim, a plaintiff must show "(1) an injury, (2) which resulted directly and only from the use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable." Ontiveros, 564 F.3d at 382 (quoting Freeman v. Gore, 483 F.3d 404, 416 (5th Cir.2007)). An officer's use of deadly force is not excessive, and thus no constitutional violation occurs, when the officer reasonably believes that the suspect poses a threat of serious harm to the officer or to others. Id. (citing Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir.2003)). The question is one of "objective reasonableness," not subjective intent, and an officer's conduct must be judged in light of the circumstances confronting him, without the benefit of hindsight. Id. at 382-83 (citing Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989)).

This court has found an officer's use of deadly force to be reasonable when a suspect moves out of the officer's line of sight such that the officer could reasonably believe the suspect was reaching for a weapon. See Ontiveros, 564 F.3d at 385; Reese v. Anderson, 926 F.2d 494, 501 (5th Cir. 1991); Young v. City of Killeen, TX., 775 F.2d 1349, 1352-53 (5th Cir.1985). In Ontiveros, the suspect ignored the officer's commands to show his hands and was shot when he reached into a boot for what the officer believed could have been a weapon. 564 F.3d at 381. In Reese, the suspect repeatedly disobeyed the officer's instructions to raise his hands, drawing fire when he tipped his shoulder and reached below the officer's line of sight to the floorboard of his vehicle. 926 F.2d at 500. In Young, the suspect responded to the officer's order to step out of his car by reaching down to the floorboard instead, also drawing fire. 775 F.2d at 1351. In this case, Zemlik testified in his deposition that Manis ignored approximately five commands to show his hands and repeatedly reached under the front seat. Zemlik stated that he fired his weapon when Manis "made a bigger lunge like he had retrieved something." Vinson's deposition corroborated Zemlik's testimony,² as did the statements of David and Janet Jenkins, the only other eyewitnesses.³

The Appellees do not dispute the only fact material to whether Zemlik was justified in using deadly force: that Manis reached under the seat of his vehicle and then moved as if he had obtained the object he sought. The Appellees state in passing that Manis was "supposedly reaching" under the driver's seat and that he "allegedly had his hand" there, but they nowhere offer evidence calling into question whether Manis actually reached under the seat in defiance of the officers' commands. At...