Cole v. Carson, No. 14-10228

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: PATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART, Chief Judge, and JAMES L. DENNIS, EDITH BROWN CLEMENT, JENNIFER WALKER ELROD, LESLIE H. SOUTHWICK, CATHARINA HAYNES, JAMES E. GRAVES, STEPHEN A. HIGGINSON, GREGG COSTA, and KURT D. ENGELHARDT, Circuit Judges
• Citation: 935 F.3d 444
• 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
• Docket Number: No. 15-10045,No. 14-10228
• Decision Date: 20 August 2019

935 F.3d 444

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

No. 14-10228
No. 15-10045

United States Court of Appeals, Fifth Circuit.

August 20, 2019
As Revised August 21, 2019

Rowe Jack Ayres, Jr., Christopher Scott Ayres, Esq., Ayres Law Office, P.C., Dallas, TX, Amir H. Ali, Roderick & Solange MacArthur Justice Center, Washington, DC, James Mark Mann, Mann Firm, Henderson, TX, for Plaintiffs - Appellees.

James Thomas Jeffrey, Jr., Esq., Law Offices of Jim Jeffrey, Arlington, TX, Norman Ray Giles, William S. Helfand, Lewis, Brisbois, Bisgaard & Smith, L.L.P., Houston, TX, for Defendant - Appellant.

Clark McAdams Neily, III, Cato Institute, Washington, DC, for Amicus Curiae Cato Institute.

Gregory Todd Butler, Esq., Phelps Dunbar, L.L.P., Jackson, MS, for Amici Curiae International Municipal Lawyers Association, Texas Municipal League, Texas City Attorneys Association, Texas Association of Counties, Combined Law Enforcement Associations of Texas, City of Arlington, Texas, City of Garland, Texas, City of Grand Prairie, Texas, Mississippi Municipal Service Company, National Association of Police Organizations, Houston Police Officers Union.

Before STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH, DENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART, Chief Judge, and JAMES L. DENNIS, EDITH BROWN CLEMENT, JENNIFER WALKER ELROD, LESLIE H. SOUTHWICK, CATHARINA HAYNES, JAMES E. GRAVES, STEPHEN A. HIGGINSON, GREGG COSTA, and KURT D. ENGELHARDT, Circuit Judges:¹

935 F.3d 446

The Supreme Court over several years has developed protection from civil liability for persons going about their tasks as government workers in the form of immunity; not the absolute immunity enjoyed by prosecutors and judges, but a qualified immunity. Today we again repair to issues inherent in the qualification. The doctrine protects at the earliest stage of litigation at which the defense's application is determinable. To that end, courts have developed procedures and pretrial practices, including appellate review of pretrial denials, otherwise interlocutory and unappealable, and a reply to an answer under Rule 7(a) on order of the district court, particularized to address the defense of immunity in a motion to dismiss or for summary judgment. When those processes do not yield pretrial resolution, as with competing factual narratives, the full reach of qualified immunity gives way to a trial, the first point at which its application is determinable. And in obeisance to constitutional mandate, the worker's defense enjoys a right to the protection of a jury—long a bastion interposed between the state and person, and assured by the Founders. And it signifies that today the district judge has multiple ways to present fully the claims and defenses to a jury to ensure the government

935 F.3d 447

worker a full draw upon his immunity defense,² including resolution of the competing factual narratives, one of which—or a meld of both—may foreclose liability.³

In this case, police officers from Sachse, Texas argue that the district court should have sustained their defense of qualified immunity on their pretrial motions to dismiss and for summary judgment. Ryan Cole and his parents Karen and Randy (collectively "the Coles") sue Officer Carl Carson, Lieutenant Martin Cassidy, and Officer Michael Hunter of the Sachse Police Department under 42 U.S.C. § 1983. The Coles allege that the officers violated Ryan Cole's Fourth and Fourteenth Amendment rights during an incident in which Cassidy and Hunter shot Ryan without warning, and then lied about what happened. The officers filed dispositive pretrial motions in the district court, asserting the defense of qualified immunity. The district court denied these motions, concluding that immunity could not be determined at this stage of the proceeding. In Cole I , a panel of our court affirmed the denial of summary judgment as to the Coles' Fourth Amendment excessive-force claim and the denial of the motion to dismiss the Coles' Fourteenth Amendment false-charge claim, but reversed denials of the motion to dismiss the Coles' Fourth Amendment and Brady claims attacking the alleged fabrication of evidence.⁴ The Supreme Court vacated Cole I , and remanded for consideration in light of its intervening decision in Mullenix v. Luna .⁵ On remand, the panel affirmed the denial of summary judgment as to the excessive-force claim. Because the Coles' other claims were unaffected by the reasoning of Mullenix , the panel reinstated Cole I 's holdings on the fabrication-of-evidence claims. We reheard this case en banc to reconsider disposition of the Coles' excessive-force claim in light of Mullenix .

We conclude that it will be for a jury, and not judges, to resolve the competing factual narratives as detailed in the district court opinion and the record as to the Coles' excessive-force claim. Limited by our jurisdiction to the materiality of factual disputes, we AFFIRM the denial of summary judgment on this claim and DISMISS Cassidy and Hunter's appeal. The Coles' remaining claims are unaffected by the reasoning of Mullenix , and so, as in Cole I , we AFFIRM denial of the motion to dismiss the Coles' Fourteenth Amendment false-charge claim; REVERSE denial of the motion to dismiss the Coles' Fourth Amendment and Brady fabrication-of-evidence claims based on qualified immunity; and return the case to the district court for trial and resolution of issues consistent with this opinion.

I

A.

On October 25, 2010, at around 10:30 a.m., the Sachse Police Department called

935 F.3d 448

available units to the neighboring town of Garland, Texas. There police were searching for Ryan Cole, a seventeen-year-old white male, reported to be walking in the neighborhood with a handgun. Officer Michael Hunter responded by proceeding immediately to the Garland neighborhood. In a statement given on the day of the incident, Hunter related that on arriving in the neighborhood, he overheard a civilian stating that Ryan had given up one of his guns, and that he had unsuccessfully tried to persuade Ryan to not keep his handgun. Hunter searched the area, and saw two officers following Ryan, who was walking away from them holding his gun to his head, approaching a wooded area along Highway 78. Although told by officers that things were under control, Hunter volunteered to go behind the wooded area and possibly intercept Ryan, and suggested that Officer Carl Carson, who was also present, join him.

Four years later, after this litigation had commenced, Hunter for the first time recalled that the civilian he had overheard had described an altercation with Ryan in which Ryan had threatened him. He also then for the first time recalled hearing police-radio transmissions indicating that officers were protecting nearby schools because of "[Ryan]'s dangerous conduct which posed a risk of serious harm to a great many innocent in the vicinity." Hunter otherwise learned nothing "that would cause [him] to believe [Ryan] was violent or wanted to hurt anyone."⁶ Hunter understood that Ryan was suicidal, and, four years after the incident, he also raised the possibility that Ryan was using suicide as a pretext to evade the police.

Meanwhile, Lieutenant Martin Cassidy had also heard the original dispatcher's summons. Cassidy called the Sachse Police Department for more information. On the day of the incident, Cassidy swore that he learned "this subject had shown up at [a] residence with a handgun and had just recently been seen walking away." But, four years later, after this litigation had commenced, like Hunter, Cassidy remembered learning more, including that Ryan "had threatened to shoot anyone who tried to take his gun"; had refused an order to drop his weapon; and might be headed for Sachse High School "to possibly engage in violence." Cassidy also decided to intercept Ryan on Highway 78.

The three officers separately arrived at the side of Highway 78 at around the same time. Hunter parked his motorbike and drew his duty weapon; Cassidy also drew his firearm and advised Carson to be ready to use his taser. The officers started walking along the tree line. A steep embankment rose from railroad tracks to the area along Highway 78. Ryan would have to climb this embankment to approach the tree line. Cassidy and Hunter used both the edge of the embankment and the vegetation to conceal themselves as they walked. Hunter also removed his white motorcycle helmet in order to be less conspicuous. Cassidy soon heard a message over the police radio: Ryan was ascending to the tree line. Hunter heard movement in the brush, and signaled to his colleagues.

What occurred next is disputed. Viewing the summary judgment evidence and drawing reasonable inferences in the light most favorable to the non-movant Coles, the district court determined that a reasonable jury could find the following: Ryan backed out from the tree line in front of Hunter and Cassidy, "unaware of the Officers'

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