722 F.3d 725 (5th Cir. 2013), 11-41029, Hogan v. Cunningham

Docket Nº:11-41029.
Citation:722 F.3d 725
Opinion Judge:PRISCILLA R. OWEN, Circuit Judge:
Party Name:John Michael HOGAN, Plaintiff-Appellee, v. Robert CUNNINGHAM; Chris Potter, Defendants-Appellants.
Attorney:Christopher John Gale, Gale, Wilson & Sanchez, P.L.L.C., San Antonio, TX, for Plaintiff-Appellee. Eric J.R. Nichols, William R. Peterson, Beck Redden, L.L.P., Houston, TX, Nancy M. Simonson, Canales & Simonson, P.C., Corpus Christi, for Defendants-Appellants.
Judge Panel:Before JOLLY, OWEN, and SOUTHWICK, Circuit Judges.
Case Date:July 12, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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722 F.3d 725 (5th Cir. 2013)

John Michael HOGAN, Plaintiff-Appellee,

v.

Robert CUNNINGHAM; Chris Potter, Defendants-Appellants.

No. 11-41029.

United States Court of Appeals, Fifth Circuit.

July 12, 2013

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Christopher John Gale, Gale, Wilson & Sanchez, P.L.L.C., San Antonio, TX, for Plaintiff-Appellee.

Eric J.R. Nichols, William R. Peterson, Beck Redden, L.L.P., Houston, TX, Nancy M. Simonson, Canales & Simonson, P.C., Corpus Christi, for Defendants-Appellants.

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

Before JOLLY, OWEN, and SOUTHWICK, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Officers Robert Cunningham and Chris Potter (the Officers) appeal the district court's denial of their motion for summary judgment on John Hogan's 42 U.S.C. § 1983 claims of unlawful arrest and excessive force and his state-law assault and battery claims. We reverse the district court's denial of summary judgment on Hogan's excessive-force claim because the Officers are entitled to qualified immunity, but we affirm the district court's denial of summary judgment on Hogan's unlawful-arrest claim. We lack jurisdiction to consider the Officers' interlocutory appeal of the district court's denial of summary judgment on Hogan's state-law assault and battery claims.

I

The Officers are members of the Corpus Christi Police Department. According to

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Officer Cunningham, on the night of the incident, he was dispatched in connection with a child-custody matter. He indicated that he was instructed to meet Hogan's ex-wife at a convenience store, and by the time he arrived, Officer Potter was already speaking to Hogan's ex-wife and examining some paperwork. Officer Cunningham explained:

Officer Potter walked to my unit and let me know where we were going to, and explained to me that [Hogan's ex-wife] had court paperwork, child custody paperwork that appeared to be in order for what we looked for, and that we were going to go ahead and follow her over to [Hogan's] apartment.

The Hogan divorce decree included a standard possession order, which entitled Hogan's ex-wife to possession of their minor son at that time. According to Officer Cunningham, he and Officer Potter were going to " try and resolve the issue of the child custody."

Officer Cunningham indicated that, after arriving at Hogan's apartment, he did not receive an answer to his initial knocks on Hogan's door, but eventually the door was opened by Hogan's roommate, Kevin Loudin. When the door opened, Officer Cunningham placed his foot in the doorway so as to get a better view of the inside of the apartment. After Loudin informed Officer Cunningham that he was not Hogan, Officer Cunningham asked him to wake Hogan, and Loudin agreed. Loudin attempted to close the apartment door as he left to summon Hogan, but he was prevented from doing so because Officer Cunningham had his foot in the doorway. Hogan eventually came to the door and identified himself. The parties presented different versions of what happened next.

According to Officer Cunningham, when Hogan approached the door, he explained to Hogan that he and Officer Potter " were there in reference to his son," and in response, Hogan told him that his son was in the apartment. Officer Cunningham said that he then explained that Hogan's ex-wife was with them and wanted to enforce the custody arrangement contained in the divorce decree. Officer Cunningham asserted that as soon as he explained to Hogan that he and Officer Potter were there to retrieve Hogan's son, " the door was forcefully trying to be closed." Officer Cunningham asserted that the door first hit him in the leg. He explained that once the door hit him in the leg, " I put my hands up to try and stop the door, and at that point a— just a sudden burst of force pushed me back with the door, and at that point the door hit me in the forehead." The Officers subsequently entered Hogan's apartment and arrested him for assault on a peace officer. According to the district court, Officer Potter's version of the events comported with that of Officer Cunningham. Officer Potter alleged that " Mr. Hogan grabbed the door and attempted to slam it shut on us. While slamming the door Mr. Hogan hit Officer Cunningham in the head with the door."

According to Hogan, when he approached the door, he told the Officers that they could not come inside the apartment. He could not remember if the Officers said anything to him, but he indicated that he attempted to close the door. At his deposition, Hogan was asked whether the door hit one of the Officers. He stated, " I don't remember because I got tackled immediately as soon as I tried to close it." When asked if it was possible, he said, " I don't know." Based on the conflicting evidence, the district court determined that there was " a genuine issue of material fact as to whether [Hogan] did in fact hit Officer Cunningham with the door."

What happened inside the apartment was also disputed. Officer Cunningham

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asserted that he attempted to perform a " controlled take-down." After the door hit him, he " pushed the door back to get it open to attempt to arrest Mr. Hogan." Officer Cunningham asserted that Hogan " started stepping backwards into his apartment" and that he instructed Hogan " to turn around, put his hands behind his back because he was being placed under arrest." According to Officer Cunningham, Hogan rejected his instructions, which eventually prompted Officer Cunningham to attempt the controlled take-down. Officer Cunningham stated:

While I was trying— while Mr. Hogan was in the process of losing his balance and going down to the floor, he grabbed on to my arms as well, and that caused me to lose my balance and I fell on the ground with Mr. Hogan as he went down.

Hogan claimed that " as soon as [he] attempted to close the door [he] got tackled." Hogan related that two officers tackled him, causing him to fall on his back. Hogan initially said the Officers fell on top of him, but when asked if both fell on him, he responded, " To the best of my knowledge. I mean, I don't know for sure." Hogan could not remember how long the Officers were on top of him. Hogan suffered two broken ribs. The district court noted that the parties did not contest that Hogan suffered an injury, but the court determined that there was " a factual dispute as to whether [the Officers] purposefully tackled [Hogan] or Defendant Cunningham accidentally fell on [Hogan] while attempting a controlled take-down."

Hogan filed suit against the Officers, bringing 42 U.S.C. § 1983 claims of excessive force, unlawful arrest, and malicious prosecution as well as Texas state-law claims of assault, battery, and malicious prosecution. Hogan also asserted claims against the City of Corpus Christi, but all of these claims were dismissed voluntarily. Eventually, the Officers moved for summary judgment, and the district court granted their motion in part and denied it in part. The court denied the Officers' motion with respect to Hogan's § 1983 claims of unlawful arrest and excessive force and his state-law claims of assault and battery. The court granted the Officers' motion with respect to Hogan's § 1983 and state-law malicious prosecution claims. The Officers then filed notice of the present appeal.

II

Ordinarily the denial of a defendant's motion for summary judgment is not appealable, but we have " limited jurisdiction to conduct an interlocutory review of a district court's order denying a motion for summary judgment based upon qualified immunity." 1 Our jurisdiction " extends to these appeals only ‘ to the extent that [the denial of summary judgment] turns on an issue of law.’ " 2 The district court makes two distinct determinations when it denies an official's motion for summary judgment predicated upon qualified immunity: " First, the district court decides that a certain course of conduct would, as a matter of law, be objectively unreasonable in light of clearly established law. Second, the court decides that a genuine issue of fact exists regarding whether the defendant(s) did, in fact, engage in such conduct." 3 While " we lack jurisdiction

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to review conclusions of the second type on interlocutory appeal, ... [w]e do ... have jurisdiction to ... review the first type of determination, the purely legal question whether a given course of conduct would be objectively unreasonable in light of clearly established law." 4 " In other words, ‘ we can review the materiality of any factual disputes, but not their genuineness.’ " 5

Because we lack the authority to review the district court's decision that a genuine factual dispute exists, we do not apply the ordinary summary judgment standard.6 Instead, 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." 7 " Where factual disputes exist in an interlocutory appeal asserting qualified immunity, we accept the plaintiffs' version of the facts as true." 8 " In reviewing the district court's conclusions concerning the legal consequences— the materiality— of the facts, our review is of course de novo. " 9

III

The Officers argue that the district court erred in denying them qualified immunity with respect to Hogan's unlawful-arrest and excessive-force claims. " Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." 10

A

We first address the Officers' claim that they are entitled to qualified immunity with respect to Hogan's unlawful-arrest claim. " It is well established that under the Fourth Amendment a...

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