664 F.3d 985 (5th Cir. 2011), 10-11053, Rockwell v. Brown

Docket Nº:10-11053.
Citation:664 F.3d 985
Opinion Judge:PRADO, Circuit Judge:
Party Name:Richard ROCKWELL, Individually and as Co-Administrator of the Estate of Scott Rockwell, Deceased; Cindy Rockwell, Individually and as Co-Administrator of the Estate of Scott Rockwell, Deceased, Plaintiffs-Appellants, v. Lieutenant William H. BROWN; Officer David J. Scicluna; Officer Dustin D. Raley; Officer Colleen Ohlde; Officer Billy Burleson; Of
Attorney:Christopher Lee Barnes (argued), Michael F. Pezzulli, Pezzulli Barnes, L.L.P., Dallas, TX, for Plaintiffs-Appellants. Scott Douglas Levine (argued), Baxter Banowsky, Banowsky & Levine, P.C., Dallas, TX, for Defendants-Appellees.
Judge Panel:Before JOLLY, DeMOSS and PRADO, Circuit Judges. DeMOSS, Circuit Judge, specially concurring:
Case Date:December 15, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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664 F.3d 985 (5th Cir. 2011)

Richard ROCKWELL, Individually and as Co-Administrator of the Estate of Scott Rockwell, Deceased; Cindy Rockwell, Individually and as Co-Administrator of the Estate of Scott Rockwell, Deceased, Plaintiffs-Appellants,

v.

Lieutenant William H. BROWN; Officer David J. Scicluna; Officer Dustin D. Raley; Officer Colleen Ohlde; Officer Billy Burleson; Officer Mario Garcia, Defendants-Appellees.

No. 10-11053.

United States Court of Appeals, Fifth Circuit.

December 15, 2011

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Christopher Lee Barnes (argued), Michael F. Pezzulli, Pezzulli Barnes, L.L.P., Dallas, TX, for Plaintiffs-Appellants.

Scott Douglas Levine (argued), Baxter Banowsky, Banowsky & Levine, P.C., Dallas, TX, for Defendants-Appellees.

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

Before JOLLY, DeMOSS and PRADO, Circuit Judges.

PRADO, Circuit Judge:

On February 14, 2006, six police officers from the Garland, Texas police department breached the locked door to the private bedroom of Richard and Cindy Rockwell's 27-year-old son, Scott, to arrest him for threatening his mother. Scott attacked the officers with two knives, and in the ensuing melee, the officers shot and killed him. The Rockwells sued the officers for excessive force, assault and battery, and unlawful entry. The district court granted summary judgment to the officers on the basis of qualified immunity and state-law official immunity. The Rockwells appealed. We affirm the district court's grant of summary judgment on all claims.

I. BACKGROUND

The magistrate judge's report and recommendation, which was adopted by the district court, sets forth the relevant facts.1

In February 2006, Plaintiffs Richard and Cindy Rockwell lived with their son Scott Rockwell at [their home] in Garland, Texas. Scott had his own bedroom and contributed to the rent. Scott suffered from both bipolar disorder and schizophrenia. Scott had also been diagnosed as suicidal and had attempted suicide on more than one occasion. His mental condition and stability began to deteriorate in early February. He had quit taking his prescribed medication and refused to see a doctor. He began hearing voices and was behaving " unpredictably." His parents believed he may have been under the influence of illegal drugs.

On the evening of February 14, 2006, Scott was in his room hitting the walls and cursing through the door. At one point during the evening, Scott came out of his room and raised his fist as if to hit his mother. At approximately 8:38 p.m., Scott's parents called 911 because they believed that Scott ha[d] become a danger to himself and others. The 911 dispatcher dispatched Officers Ohlde and Raley to the Rockwell home. The dispatcher told the officers that Scott was bi-polar, schizophrenic, off his medication, and that he was pounding the walls of his room and refusing to come out. Officer Burleson offered over the radio to come " since there was a potentially dangerous subject there." Officer Ohlde accepted Burleson's offer of assistance.

Officer Burleson was the first to arrive at the scene, arriving at approximately

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8:45 p.m. Officers Ohlde and Raley arrived soon thereafter. At the Rockwell home, Mrs. Rockwell told the police that Scott had schizophrenia, was talking to himself, hadn't taken his medication for several days, refused to come out of his room, and that she believed that Scott was taking illegal drugs. When the officers asked Mrs. Rockwell what Scott would likely do if they were to leave without detaining Scott, she answered that she did not know.

Officers Ohlde, Burleson, and Raley attempted to communicate with Scott through his bedroom door. Scott was threatening the officers from his room and had indicated that " he thought someone had put ‘ cum’ in his mouth." The Officers believed that Scott was suggesting he had been sexually assaulted. Officer Raley advised Officers Ohlde and Burleson that the SWAT team had been called to respond to Scott on at least one prior occasion and had taken Scott into custody for threatening and assaulting his parents. At about this time, Officer Ohlde called Lieutenant Brown (" Lt. Brown" or " Brown" ) who then came to the scene. At some point after Lt. Brown was called, but before he arrived, Officer Raley called for another unit. Officers Garcia and Scicluna responded to this call. While Officers Burleson, Raley, and Ohlde waited for the additional units, Scott continued to bang on the walls, shake his door, and make threats to the officers.

At some point after Lt. Brown arrived, the decision was made to arrest Scott. The decision was made based on the assault by threat made earlier in the evening, Scott's history of violent and suicidal behavior, his unstable mental state, the possibility that Scott was high on drugs, and concern that Scott would harm his parents or himself if left in the residence. When the Officers told Cindy Rockwell that they may have to breach the door to effectuate an arrest, she suggested that she would wait until morning to get a mental-health warrant. The Officers, having determined that Scott was a threat, decided that it would be unsafe to leave him in the home until morning. The Officers had determined that Scott had barricaded himself inside of his room. After making repeated unsuccessful attempts to convince Scott to come out of the room, the police decided to breach the door.

At the time that the breach was made, Officer Scicluna was positioned at the door to kick it in. Lt. Brown ordered Scicluna to get low to stay out of the line of possible gunfire. Lt. Brown was holding a pepperball gun, and stood in the doorway to the bathroom across the hall from Scott's bedroom, behind Officer Scicluna. From the perspective of somebody facing the door into Scott's room from the hallway, Officers Burleson and Ohlde were positioned on the right side of the door, and Officer Raley was positioned on the left side of the door, near Lt. Brown. Officer Garcia was positioned by the back door. Richard and Cindy Rockwell were in the converted garage. One of the officers had his gun drawn at the time of the breach. The door was breached sometime between 9:12 and 9:16 p.m.

Once the door was breached, Scott, holding two eight-inch serrated knives, rushed towards Lt. Brown and attacked him with the knives. Officer Burleson saw the knives and yelled " knives" to warn his fellow officers. Lt. Brown began to fire multiple rounds at Scott with the pepperball gun. Lt. Brown was able to deflect a number of these attacks with his pepperball gun. During the scuffle, Scott pushed Lt. Brown back into the bathroom with enough force that the commode broke. Scott then turned and

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began to run after Officer Scicluna while still swinging his knives. Scott swung the knives at Officer Scicluna, injuring him. At about this time, the officers shot at Scott.

Officer Burleson fired one shot which hit Scott in the abdomen. Officer Raley fired three shots, two of which hit Scott. One of Officer Raley's shots created stip[p]ling on Scott's neck, which is generally indicative of a shot fired two feet or less from the target. Scott fell down in front of Officer Scicluna. Officer Scicluna fired one shot, which hit Scott in the chin and neck. Officer Garcia fired either once or twice, but did not hit Scott. Officers Ohlde and Lt. Brown did not fire any shots from their firearms. In total six or seven shots were fired. The shots were mostly fired in rapid succession. Four of the shots hit Scott, and one hit Officer Raley. No party suggests that Scott had a gun or shot Officer Raley. Scott received wounds to the chin, neck, forearm, and abdomen.

At approximately 9:16, the Officers called for EMS and reported that Scott had been shot. Scott was pronounced dead at 10:04 p.m. On February 13, 2008, the Rockwells, individually and on behalf of their son's estate, sued the officers for excessive force, and assault and battery. The Rockwells later amended their complaint to add claims against the officers for unlawful entry. On June 10, 2008, the magistrate judge recommended to the district court that the officers' motion for summary judgment be granted. On August 26, 2008, the district court adopted the magistrate judge's report and recommendation, overruled the Rockwells' objections, and entered summary judgment in favor of the officers. The Rockwells timely appealed.

II. JURISDICTION & STANDARD OF REVIEW

This Court has jurisdiction under 28 U.S.C. § 1291 and reviews a grant of summary judgment de novo, applying the same standard as the district court. Quality Infusion Care, Inc. v. Health Care Serv. Corp., 628 F.3d 725, 728 (5th Cir.2010). Summary judgment is proper when " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine issue of material fact exists...

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