Aaron Brothers v. Zoss, 091416 FED5, 15-51204

Docket Nº:15-51204
Opinion Judge:JERRY E. SMITH, Circuit Judge:
Party Name:AARON BROTHERS, as Independent Executor of the Estate of William Slade Sullivan; ROSEMARY CLAUS SULLIVAN, Plaintiffs-Appellees, v. OFFICER NATHAN J. ZOSS; OFFICER KRISTEN A. MAYO; OFFICER AARON P. BALLEW, Defendants-Appellants.
Judge Panel:Before KING, SMITH, and COSTA, Circuit Judges.
Case Date:September 14, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

AARON BROTHERS, as Independent Executor of the Estate of William Slade Sullivan; ROSEMARY CLAUS SULLIVAN, Plaintiffs-Appellees,



No. 15-51204

United States Court of Appeals, Fifth Circuit

September 14, 2016

Appeal from the United States District Court for the Western District of Texas

Before KING, SMITH, and COSTA, Circuit Judges. [*]

JERRY E. SMITH, Circuit Judge:

Officers Nathan Zoss, Kristen Mayo, and Aaron Ballew forcibly removed William Sullivan from his pickup truck after he refused to comply with their lawful commands to exit the vehicle. In the process, Sullivan, who was heavily intoxicated, morbidly obese, and handicapped, suffered a serious injury that rendered him a quadriplegic. A few months later, he died.

In the ensuing civil lawsuit, the officers moved for summary judgment based on qualified immunity, which the district court denied, finding that there were genuine disputes of material facts. In so doing, the court erred because, even on plaintiffs' version of the tragic facts, the officers did not violate Sullivan's constitutional rights.


At about 11:30 p.m., Sullivan drove to Rick's Cabaret ("Rick's"), a club, where he drank heavily and by the end of the night had run up a bill of over $400. When he left at about 3:30 a.m., Rick's employees offered to pay for a cab to take him to a nearby hotel. But Sullivan refused, instead asking the employees to drive him and his truck home, as Rick's floor manager had promised at the start of the evening; the manager reneged on his promise. Sullivan therefore demanded his truck keys, which he had entrusted to a Rick's employee earlier in the evening, so that he could charge his cell phone and call a friend to take him home.

Shortly afterward, a Rick's security guard called 911 and requested police assistance to prevent Sullivan from driving under the influence. When Zoss, the first responder, arrived on the scene, Sullivan was in his pickup with the engine running. Zoss approached Sullivan, engaged him in polite conversation, and requested that he exit the truck. Sullivan, however, refused to do so, "because, " he told Zoss, "you're going to arrest me." Zoss then warned Sullivan that he would be arrested if he did not step out of the vehicle. Sullivan slowly opened the door but immediately closed it when Zoss reached for the handle.

Because of Sullivan's noncompliance, Zoss and fellow officers Mayo and Ballew decided to resort to force. Mayo moved Zoss's police cruiser in front of Sullivan's pickup to try to prevent him from driving off, while Ballew drew his gun and pointed it at Sullivan. When Sullivan dropped his hands from view, Zoss also drew his weapon and ordered Sullivan to put his hands on his face. Sullivan eventually moved his hands back into view but, despite Zoss's repeated orders, did not put his hands on his face.

At Zoss's command, Mayo opened the driver's door and told Sullivan to get out. Sullivan told her to "hold on" as he took a phone call. Mayo grabbed onto his left arm and attempted to pull him from the truck, but, because of his great weight, she was unable to move him.1 Zoss came over to help. He reached over Sullivan's body to grab his right arm, and then Zoss and Mayo pulled Sullivan out of the vehicle, which was a large, elevated pickup. In the process, Sullivan fell and slammed hard into the pavement. He did not use his feet to brace his fall; nor could he use his hands, because Zoss and Mayo were holding onto them.

Immediately after Sullivan hit the ground, he yelled, "Ow, oh my back." The officers handcuffed him. When they attempted to sit him up, he informed them that he had broken vertebrae. The officers therefore stopped moving him and called for medical assistance.

Aaron Brothers, to whom Sullivan had conveyed power of attorney, sued the City of Round Rock, Zoss, Mayo, and Ballew under 42 U.S.C. § 1983, alleging excessive force in violation of the Fourth and Fourteenth Amendments.2 The officers moved for summary judgment based on qualified immunity. The district court denied the motion, but disclaimed to rule directly on the defense, stating that it wanted to wait until "the record is fully developed through trial" to rule on qualified immunity.


We review de novo the denial of summary judgment based on qualified immunity. Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010). In denying such a motion, the trial court makes two determinations. First, it "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." Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc). On interlocutory appeal, this court generally has jurisdiction to "review the materiality of any factual disputes, but not their genuineness." Hogan v. Cunningham, 722 F.3d 725, 730-31 (5th Cir. 2013).

The Supreme Court has created a narrow exception to this jurisdictional limitation where the record blatantly contradicts one party's version of events. Curran v. Aleshire, 800 F.3d 656, 663-64 (5th Cir. 2015). In Scott v. Harris, 550 U.S. 372 (2007), the Court rejected the plaintiff's version because it was clearly contradicted by video evidence. Harris authorizes "assign[ing] greater weight . . . to the facts evident from video recordings taken at the scene."3"When one party's description of the facts is discredited by the record, we need not take his word for it but should view 'the facts in the light depicted by the videotape.'"4

The district court ruled that there were genuine disputes as to material facts. The officers urge us to review the genuineness in light of the video evidence and Harris's exception to the jurisdictional limitation. We agree with the plaintiffs, however, that the video evidence does not unequivocally disprove their version of events, which we therefore accept for purposes of this appeal.5


Qualified immunity provides government officials with immunity from suit-not merely a defense to liability for civil damages-"insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."6 It thus involves two inquiries: "A public official is entitled to qualified immunity unless the plaintiff demonstrates that (1) the defendant violated the plaintiff's constitutional rights and (2) the defendant's actions were objectively unreasonable in light of clearly established law at the time of the violation."7 These inquiries can be made in any order. Callahan, 555 U.S. at 227. Both are matters of law for the court.[8]

At the first step of the qualified-immunity inquiry, the record shows that, even accepting (as we do) the plaintiffs' version of the facts, the officers did not violate Sullivan's constitutional rights. Although plaintiffs allege excessive force under the Fourth and the Fourteenth Amendments, 9 we are instructed to analyze "all claims that law enforcement officers have used excessive force- deadly or not-in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen . . . under the Fourth Amendment and its 'reasonableness' standard . . . ." Graham v. Connor, 490 U.S. 386, 395 (1989). We thus consider only whether the officers violated Sullivan's Fourth Amendment right to be "'secure in [his] person[] . . . against unreasonable . . . seizures' of the person." Id. at 394.

To succeed on an excessive-force claim under the Fourth Amendment, plaintiffs must demonstrate "(1) an injury that (2) resulted directly and only from the use of force that was excessive to the need, and that (3) the force used was objectively unreasonable."10 In this procedural posture, though plaintiffs have no trouble satisfying the first two prongs, they are unable to meet the third because, even on the facts alleged and drawing all reasonable inferences in their favor, the...

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