777 F.3d 221 (5th Cir. 2014), 13-10899, Luna v. Mullenix
|Citation:||777 F.3d 221|
|Opinion Judge:||JAMES E. GRAVES, JR., United States Circuit Judge|
|Party Name:||BEATRICE LUNA, Individually and as Representative of the Estate of Israel Leija, Jr.; CHRISTINA MARIE FLORES, as Next Friend of J.L. and J.L., Minor Children, Plaintiffs - Appellees v. CHADRIN LEE MULLENIX, In His Individual Capacity, Defendant - Appellant|
|Attorney:||For BEATRICE LUNA, Individually and as Representative of the Estate of Israel Leija, Jr., CHRISTINA MARIE FLORES, as Next Friend of J.L. and J.L., Minor Children, Plaintiffs - Appellees: Robert Smead Hogan, Esq., Hogan Law Firm, P.C., Lubbock, TX; K. Paul Holloway, Law Office of Paul Holloway, Pl...|
|Judge Panel:||Before KING, HAYNES, and GRAVES, Circuit Judges. E. GRADY JOLLY, Circuit Judge, dissenting from the Denial of Rehearing EnBanc, joined by KING, DAVIS, JONES, SMITH, CLEMENT and OWEN, Circuit Judges. PER CURIAM: E. GRADY JOLLY, Circuit Judge, dissenting from the Denial of Rehearing En Banc, joined...|
|Case Date:||December 19, 2014|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
Petition for certiorari filed at, 03/19/2015
Appeal from the United States District Court for the Northern District of Texas, Amarillo.
ON PETITION FOR REHEARING EN BANC
(Opinion August 28, 2014, 765 F.3d 531)
Treating the petition for rehearing en banc as a petition for panel rehearing, the petition for panel rehearing is DENIED. The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor (FED. R. APP. P. 35 and 5TH CIR. R. 35), the petition for rehearing en banc is DENIED.
In the en banc poll, 6 judges voted in favor of rehearing (Judges Jolly, Davis, Jones, Smith, Clement, and Owen), and 9 judges voted against rehearing (Chief Judge Stewart and Judges Dennis, Prado, Elrod, Southwick, Haynes, Graves, Higginson, and Costa).
Certainly, I have great personal respect for all members of the instant panel. But, I will be candid: My impression is that the panel majority either does not understand the concept of qualified immunity or, in defiance thereof, impulsively determines the " right outcome" and constructs an opinion to support its subjective judgments, which necessarily must ignore the concept and precedents of qualified immunity.
The concept of qualified immunity assumes that law enforcement officers want to respect the constitutional rights of citizens who violate the law or are suspected of violating the law. Accord Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (" Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments" and " protects all but the plainly incompetent or those who knowingly violate the law." (internal quotation marks and citation omitted)). For an officer to respect those constitutional rights, he must know or have reasonable understanding of what the legal standards are that govern his conduct. Presley v. City of Benbrook, 4 F.3d 405, 409 (5th Cir. 1993) (" [T]he essence of qualified immunity [is] that an officer may make mistakes that infringe constitutional rights and yet not be held liable where, given unclear law or uncertain circumstances, it cannot be said that she knew she was violating a person's rights." ). The only means for an officer to have that understanding is by notice of the law through the decisions of the courts. Officers cannot be held liable for a violation of legal standards when there are three or four versions of the law applicable to judging the officers' decisions and responses to criminal suspects, arrestees, or those committing crimes. McClendon v. City of Columbia, 305 F.3d 314, 332 (5th Cir. 2002) (en banc) (Qualified immunity must be granted " if a reasonable official would be left uncertain of the law's application to the facts confronting him." ); Del A. v. Edwards, 855 F.2d 1148, 1150 (5th Cir. 1988) (" When the law is unclear . . . the official . . . require[s] protection [in the form of qualified immunity] so that fear of suit will not cloud the decision-making process." ). Consequently, the constitutional
law must be clearly established so as to provide reasonable notice of an officer's duties to citizens. To give such required notice, the right at issue cannot be defined at a high level of generality if it is to have any meaning that serves the purpose of qualified immunity. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (warning that " if the test of 'clearly established law' were to be applied at [a high] level of generality, it would bear no relationship to the...
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