Cole v. Carson

• Decision Date: 25 September 2015
• Docket Number: 15–10045.,Nos. 14–10228,s. 14–10228
• Citation: 802 F.3d 752
• Parties: Randy COLE; Karen Cole; Ryan Cole, Plaintiffs–Appellees v. Carl CARSON, Defendant–Appellant. Randy Cole; Karen Cole; Ryan Cole, Plaintiffs–Appellees v. Michael Hunter; Martin Cassidy, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

802 F.3d 752

Randy COLE;

Karen Cole;

Ryan Cole, Plaintiffs–Appellees

v.Carl CARSON, Defendant–Appellant.

Randy Cole;

Karen Cole;

Ryan Cole, Plaintiffs–Appelleesv.Michael Hunter;

Martin Cassidy, Defendants–Appellants.

Nos. 14–10228

15–10045.

United States Court of Appeals, Fifth Circuit.

Sept. 25, 2015.

Rowe Jack Ayres, Jr., Christopher Scott Ayres, Esq. (argued), Ayres Law Office, Addison, TX, James Mark Mann, Mann Firm, Henderson, TX, for Plaintiffs–Appellees Randy Cole, Karen Cole and Ryan Cole.

James Thomas Jeffrey, Jr., Esq. (argued), Law Offices of Jim Jeffrey, Arlington, TX, Norman Ray Giles, William S. Helfand, Chamberlain, Hrdlicka, White, Williams & Aughtry, Houston, TX, for Defendant–Appellant.

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

Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.

Opinion

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Seventeen-year-old Ryan Cole was severely injured in an armed encounter with police. Ryan and his parents, Karen and Randy Cole (“the Coles”), brought suit against Officers Michael Hunter and Martin Cassidy, alleging that they violated Ryan's Fourth Amendment right not to be subjected to excessive force. They also sued Officer Carl Carson, alleging Carson violated Ryan's rights under the Fourth and Fourteenth Amendments by lying and concealing evidence in order to protect Hunter and Cassidy; that he caused Ryan to be wrongfully charged with aggravated assault of a public servant. The district court denied Carson's motion to dismiss and Hunter and Cassidy's motion for summary judgment, rejecting the officers' immunity defense at the motion stage of the case.

We dismiss defendants' appeal of the district court's order refusing to grant summary judgment on the excessive force claim, and we affirm the district court's refusal to dismiss the due process claim relating to fabrication of evidence. However, we conclude that the district court erred in allowing all other claims to proceed.

I

Seventeen-year-old Ryan Cole was a junior at Sachse High School.¹ Ryan suffered from obsessive-compulsive disorder. The night before the shooting, he quarreled with his parents, and later took guns and ammunition from their gun safe. He visited his friend Eric Reed Jr. late that night carrying weapons. The next morning, October 25, 2010, Ryan visited Eric again carrying two handguns: a revolver and a Springfield 9mm semi-automatic. At around 10:45 in the morning Ryan allowed Eric to take the revolver, and used Eric's cellphone to ask his grandparents to pick him up at a nearby CVS.

During the course of the morning, police were informed that Ryan was carrying at least one gun and acting aggressively, and they began looking for him. After Ryan left Eric's house with his remaining handgun, he was seen by several officers and ordered to stop. He continued to walk away from the officers and placed the gun against his own head. He walked towards a set of train tracks separated by a narrow wooded area and grassy strip from Highway 78, a major road. The CVS where he was to meet his grandparents was located on the other side of the wooded area, across Highway 78.

Three police officers—Hunter, Cassidy, and Carson—were attempting to locate Ryan on the other side of the wooded area, near Highway 78 and the CVS. Ryan crossed the wooded area and backed out of the woods near Officer Hunter, who was some distance from Officers Cassidy and Carson. The officers believed Ryan was unaware of them when he backed out, and remained quiet so as not to alert him. Then Ryan made some turning motion to his left. The officers say that he turned to face Officer Hunter and pointed his gun at him, while the Coles argue that he merely began to turn toward the CVS, still with his gun pointed at his own head. Whether any warning was given is disputed, but Officers Hunter and Cassidy opened fire, hitting Ryan twice. In addition, Ryan's gun discharged, hitting his own head, and leaving stippling—gunpowder residue around the wound due to the gun being fired from less than thirty inches away.

Ryan fell, and the officers ceased firing. He was picked up by an ambulance and taken for treatment of his severe injuries. Over time, Ryan has made a significant recovery, but lives with profound disabilities. He has incurred extensive medical bills and continues to require care. After the shooting, the three officers had an opportunity to confer before making their statements to police investigators—statements which conveyed that Ryan was given a warning and that he pointed his gun at Officer Hunter prior to being shot. The Coles argue that these statements are lies contradicted by recordings and physical evidence.

The officers' statements resulted in Ryan being charged with aggravated assault on a public servant—a felony. As a result of the assault charge, Ryan was placed under house arrest. The assault charge was dismissed by the District Attorney on May 8, 2012, and Ryan received deferred adjudication for an unlawful carrying charge. The Coles incurred substantial legal fees in order to confront the aggravated assault charge, which they allege was concocted by the officers to justify the shooting.

II

The Coles brought suit in the Eastern District of Texas. The appellant officers² moved to transfer; answered, asserting absolute and qualified immunity defenses; and moved to dismiss or alternatively for the court to order a reply to their immunity defenses under Federal Rule of Civil Procedure 7(a).³ After transfer to the Northern District of Texas, the district court ordered the Coles to notify it whether they would file additional documents in the form of a Rule 7(a) Reply or an amended Complaint.

The Coles filed their First Amended Complaint which, as relevant here, includes § 1983 claims against Officers Cassidy and Hunter for excessive force and against all three officers for manufacturing and concealing evidence in order to get Ryan falsely charged with assault. The defendants moved to dismiss, with the appellant officers asserting absolute and qualified immunity defenses. The court then issued a Memorandum Opinion and Order denying the Motion to Dismiss with respect to the § 1983 claims based on both excessive force and conspiracy to conceal and manufacture evidence to bring a false charge. Officer Carson appealed that order with regard to the latter claim; Officers Cassidy and Hunter did not. The district court stayed the false charge claim as to Cassidy and Hunter pending the result of Carson's appeal. We heard argument on that appeal.

Meanwhile, the district court allowed limited discovery focused on Officers Cassidy and Hunter's qualified immunity defense to the excessive force charge. Those two officers then moved for summary judgment on that charge, which the district court denied. Officers Cassidy and Hunter appealed, and we consolidated their appeal with Carson's.

III

Following the chronology of the underlying events, we turn first to the excessive force claim. The district court denied Officers Cassidy and Hunter's motion for summary judgment, finding they were not entitled to qualified immunity because, under the plaintiffs' evidence, their use of force violated clearly established law.

a. Qualified immunity inquiry at summary judgment

The officers are protected “from liability for civil damages” by qualified immunity “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”⁴ Qualified immunity is an immunity from suit and thus should be resolved as early as possible.⁵ At summary judgment, it is the plaintiff's burden to rebut a claim of qualified immunity once the defendant has properly raised it in good faith.⁶

“District court orders denying summary judgment on the basis of qualified immunity are immediately appealable ... when based on a conclusion of law.”⁷ We may not review the district court's determination that a genuine fact dispute exists,⁸ but we are called to determine whether, resolving all fact disputes in the plaintiffs' favor, the defendants are nonetheless entitled to qualified immunity as a matter of law.⁹ Within the limited scope of our inquiry, review is de novo.¹⁰ We must:

engage in a two-pronged inquiry. The first asks whether the facts, “[t]aken in the light most favorable to the party asserting the injury ... show the officer's conduct violated a [federal] right....” The second prong ... asks whether the right in question was “clearly established” at the time of the violation.¹¹

We may address either prong first.¹²

b. Fourth Amendment violation

To show a violation of the Fourth Amendment's prohibition against excessive force, the Coles must prove that “the force used was objectively unreasonable.”¹³ In assessing the reasonableness of the force, we examine:

the facts and circumstances of the particular case—the need for force determines how much force is constitutionally permissible. The court should consider “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”¹⁴

In deadly force cases, “the severity and immediacy of the threat of harm to officers or others are paramount to the reasonableness analysis.”¹⁵ Additionally, we bear in mind both that “[t]he intrusiveness of a seizure by means of deadly force is unmatched,”¹⁶ and that the use of force “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”¹⁷

Accepting the Coles' best version of the evidence, as they must, Officers Cassidy and Hunter argue that shooting Ryan was not objectively unreasonable—that he presented an immediate threat of serious harm when they fired.¹⁸ Accordingly, we recount the version of events most favorable to the Coles.

Just before the shooting, Officer Hunter was in an exposed position between...