Baulch v. Johns

Citation70 F.3d 813
Decision Date29 November 1995
Docket NumberNo. 94-10456,94-10456
PartiesMichael BAULCH, individually and on behalf of his deceased son Kenneth Baulch; o/b/o Kyle Wayne Baulch, et al., Plaintiffs-Appellees, v. Robert C. JOHNS, a/k/a Bobby Johns, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

John W. Bickel, II, Michael J. Betz, Richard E. Aubin, Bickel & Brewer, Dallas, TX, Charles M. Hinton, Jr., Brad Neighbor, City Attys., City of Garland, TX, Garland, TX, for appellant.

Andrea Chan, Asst. City Atty., Houston, TX, for amicus curiae--City of Houston.

Karen H. Brophy, City Atty., A. Lynn Nunns, Asst. City Atty., Carrollton, TX, for amicus curiae--City of Carrollton.

Douglas R. Larson, Mesquite, TX, for appellee.

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

Before SMITH and BARKSDALE, Circuit Judges, and BUCHMEYER, District Judge.

JERRY BUCHMEYER, District Judge. *

This is an interlocutory appeal by a Garland police officer from the district court's denial of his motion for summary judgment based on the doctrine of qualified immunity. Because there are disputed issues of material fact concerning the qualified immunity defense, we lack jurisdiction to consider the interlocutory appeal. Accordingly, we dismiss. In addition, because counsel for appellant has multiplied these proceedings unreasonably and vexatiously, we impose sanctions against counsel pursuant to 28 U.S.C. Sec. 1927.

I. The Factual Dispute

It is undisputed that the defendant, Garland Police Officer Robert C. Johns ("Johns"), shot and killed Kenneth Baulch ("Baulch") in Baulch's home on February 14, 1991. However, the material facts underlying this incident are hotly disputed.

According to Johns, he shot and killed Baulch in self-defense. Specifically, Johns claims that he and other members of the Garland Police Department, acting under a valid search warrant, entered Baulch's residence to search for illegal narcotics; that Baulch fled into a bedroom on the south side of the home; that Johns entered the south bedroom in pursuit; but that Baulch ambushed Johns and began pounding him with an unidentified weapon. Johns insists that this attack forced him to shoot and kill Baulch from a defensive, crouching position.

Not surprisingly, Baulch's parents ("plaintiffs") present a decidedly different version. According to them, when Johns and the other Garland police officers raided Baulch's residence, Baulch was sleeping in the south bedroom. As Baulch was awakened by the raid, Johns forcibly entered the south bedroom, ordered Baulch to "freeze," but then immediately shot Baulch before he could comply with this command. Plaintiffs support these allegations with an autopsy report documenting the examination performed on Baulch the following day, February 15, 1991, at the Southwestern Institute of Forensic Sciences under the authority of the Dallas County Medical Examiner ("Autopsy Report"). This Autopsy Report--a copy of which was provided to the plaintiff's attorney by Garland Chief of Police Terry Hensley--concludes that, of the four gunshots that struck Baulch, three bullets entered Baulch's body from the back. Thus, the Autopsy Report creates this obvious factual dispute: did Johns shoot Baulch in the back without justification, or did Johns shoot Baulch to prevent him from continuing a deadly assault on Johns?

II. Procedural Background

Plaintiffs brought suit against Johns individually under 42 U.S.C. Sec. 1983, alleging that Johns employed excessive deadly force in violation of Baulch's rights under the Fourth Amendment. Johns moved for summary judgment, arguing that the doctrine of qualified immunity shielded him from suit. The district court, reasoning that the Autopsy Report alone was sufficient to create fact questions as to whether Baulch was shot in the back three times while he was retreating from Johns, denied the motion for summary judgment. Johns filed this interlocutory appeal from the denial of his qualified immunity defense.

III. Analysis

In substance, Johns urges two points on appeal. First, he claims that the Autopsy Report alone is insufficient to create a genuine issue of material fact as to his qualified immunity defense. Second, Johns argues that the district court abused its discretion in considering the Autopsy Report because that report had not been properly authenticated by the plaintiffs. The first argument is specious, the second is frivolous, and neither merits extended discussion.

A. An interlocutory appeal must present an issue of law, not a dispute about the facts

It is well-settled that "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. Sec. 1291 notwithstanding the absence of a final judgment." 1 However, as the Supreme Court made clear in Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), "a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a 'genuine' issue of fact for trial." 2 Indeed, even before Johnson, we had consistently held that a district court's denial of a qualified immunity summary judgment is not appealable when there are disputed issues concerning the immunity claim. Tamez v. City of San Marcos, Texas, 62 F.3d 123 (5th Cir.1995); Johnston v. City of Houston, 14 F.3d 1056, 1060 (5th Cir.1994); Lampkin v. City of Nacogdoches, 7 F.3d 430, 431 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1400, 128 L.Ed.2d 73 (1994).

This appeal does not present an issue of law. Instead, Johns merely argues that the district court was wrong in concluding that the Autopsy Report creates a genuine issue of material fact concerning this central issue: did Johns shoot Baulch in self-defense or did he shoot Baulch without provocation? In his affidavit, Johns claims that Baulch attacked him, struck him repeatedly with an unidentified object, and forced Johns to shoot Baulch in self-defense. In stark contrast, the Autopsy Report indicates that the fatal shots struck Baulch in the back while Baulch was retreating. Faced with conflicting evidence, the district court determined that there was a genuine issue of material fact concerning the lawfulness of the force employed by Johns. We agree. Accordingly, under Johnson, Tamez and Hale, we lack jurisdiction over Johns' interlocutory appeal from the denial of his qualified immunity motion for summary judgment.

B. The Autopsy Report was properly authenticated

It is undisputed that the Autopsy Report concerning Baulch's death was provided to the plaintiffs, in response to a deposition subpoena duces tecum, by Garland Chief of Police Terry Hensley, the supervisor of officer Johns. Despite this, Johns' attorney argues before us, as he did before the district court, that the Autopsy Report was not properly authenticated by the plaintiffs. While the district court did not explain why it rejected this argument by Johns' attorney, we hold that the Autopsy Report is clearly admissible under Rule 901, Fed.R.Evid.:

Rule 901. Requirement of Authentication or Identification

(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.

(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be ...

* * * * * *

(4) Distinctive Characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

We do not require district courts to find that authenticity is conclusively established before allowing the admission of disputed evidence. United States v. Lance, 853 F.2d 1177, 1181 (5th Cir.1988); United States v. Whittington, 783 F.2d 1210, 1215 (5th Cir.), cert. denied, 479 U.S. 882, 107 S.Ct. 269, 93 L.Ed.2d 246 (1986). For example, in United States v. Lopez, 873 F.2d 769, 772 (5th Cir.1989), we held that the district court did not abuse its discretion when it admitted a document "which appear[ed] on its face and by its contents to be a record of conviction of illegal entry into the United States." The document at issue in Lopez was not under seal, and it was not supported by testimony of the document's custodian. However, the document was supported by testimony that "provided circumstantial evidence to support the conclusion that the document was an official record," including the signature of a United States Magistrate Judge and a clerk of that court. Together, "internal indicia of reliability within the document" and testimony concerning the chain of custody of the document after it was provided to a border patrol agent authenticated the document under Rule 901.

In this case, the Autopsy Report is clearly admissible under the same Rule 901 analysis. As submitted to the district court, the Autopsy Report is an eight page, single-spaced document containing an in-depth forensic analysis of Baulch's organ weights, the gunshot entrance and exit wounds, toxicology, etc. The Autopsy Report is signed by the Medical Examiner, Dr. Charles Odem, and by the Acting Chief Medical Examiner, Dr. Jeffrey Barnard. It is also supported by the affidavit of Heather Harvey, 3 which establishes that the Autopsy Report was provided to plaintiffs' counsel by Garland Police Chief Terry Hensley in response to the plaintiffs' subpoena duces tecum. While Harvey was not the record custodian of the Autopsy Report, her testimony regarding its chain of custody after it was...

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