Luna v. Mullenix

• Decision Date: 19 December 2014
• Docket Number: No. 13–10899.,13–10899.
• Citation: 777 F.3d 221 (Mem)
• Parties: 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.
• Court: U.S. Court of Appeals — Fifth Circuit

777 F.3d 221 (Mem)

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.

No. 13–10899.

United States Court of Appeals, Fifth Circuit.

Dec. 19, 2014.

Robert Smead Hogan, Esq., Hogan Law Firm, P.C., Lubbock, TX, K. Paul Holloway, Law Office of Paul Holloway, Plainview, TX, for Plaintiffs-Appellees.

Andrew S. Oldham, Deputy Solicitor General, Karen Denise Matlock, Assistant Attorney General, Office of the Attorney General Office of the Solicitor General, Austin, TX, for Defendant-Appellant.

Before KING, HAYNES, and GRAVES, Circuit Judges.

ON PETITION FOR REHEARING EN BANC

PER CURIAM:

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).

ENTERED FOR THE COURT:

/s/ James E. Graves, Jr.

JAMES E. GRAVES, JR.

United States Circuit Judge

E. GRADY JOLLY, Circuit Judge, dissenting from the Denial of Rehearing En Banc, joined by KING, DAVIS, JONES, SMITH, CLEMENT and OWEN, Circuit Judges:

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, ––– U.S. ––––, 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 ‘objective legal reasonableness' that is the touchstone of [qualified immunity and plaintiffs] ... would be able to convert the rule of qualified immunity ... into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.”). Furthermore, qualified immunity recognizes that, even where constitutional rights are clearly established, an officer should not be liable for his conduct unless his conduct was unreasonable in the light of the clearly established law. Accord Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (“Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.”).

The initial task here is to define the clearly established law that governs the specific facts of this case. If such law cannot reasonably be defined, the inquiry ends, and the officer is not liable because he had no notice of the rights that he was bound to respect. If there is clearly established law, the qualified immunity analysis then asks: given the factual situation the officer confronted, was his conduct unreasonable in the light of the clearly established law of which he reasonably had notice. This final question acknowledges that, on some occasions, the safety of the public or the safety of the officers and the safety of surrounding lives is so at risk that the officer must make a snap judgment that requires him to act notwithstanding the lapidary principles of the law at issue.

The panel majority regrettably has demonstrated its lack of grasp of these qualified-immunity principles in fundamental ways and has done so from the beginning of its efforts to decide this case, through its present unexplained and puzzling reversal of positions:

• At the outset, the majority was doggedly determined to send this case to a jury against all precedent and notwithstanding Judge King's clear—and unanswered—dissent. My impression is confirmed by the evolution of the majority's approach from its earlier opinion¹ to today's substitute. In the first version, the majority holds that a jury is needed to determine whether Mullenix's conduct was reasonable under the Fourth Amendment. In its new opinion, the majority nods to the need for a jury, but it proceeds to hold that not one of the facts supporting Mullenix's decision to disable Leija's car to prevent his continued threat to the police and the public is legally sufficient to render the shooting objectively reasonable under the Fourth Amendment. The panel's complete turnaround of its earlier dogmatic assertions, with no explanation, leaves the bench and bar to wonder: What is going on here? The confusing nature and unorthodox analysis of the opinion—both initially and on rehearing—will surely befuddle all readers; not the least, those officers who consider themselves familiar with the clearly established law of the Supreme Court and this Court.²

• The majority fails to recite or accept the clearly established law that applies to car-chase cases, and then dismissively states, “We need not dwell on this issue.” “Dwelling” would have led to objective analysis of the relevant standard, articulated by the U.S. Supreme Court in Scott v. Harris, 550 U.S. 372, 386 [127 S.Ct. 1769, 167 L.Ed.2d 686] (2007) (holding in clear, easily understood language, “A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”).³

• The majority irrationally concludes that Trooper Mullenix's conduct was unreasonable—based on its own, subjective predilections, supported by arguments made of straw; in particular, that tire spikes should have been the preferred alternative means for stopping Leija's car.

• The majority fails to heed the Supreme Court's instruction to account for Leija's culpability.⁴ It was Leija, after all, who placed himself and the public in danger when he fled arrest while intoxicated, traveled at excessive speeds for miles and miles, threatened to shoot officers in pursuit, and swerved around numerous vehicles. It was Leija's choices and actions—not Mullenix's—that led to his demise. Leija put innocent lives at risk; Mullenix responded and tried to restore public safety. The majority ignores Leija's culpability, making him an innocuous actor rather than a man bent on escape at all costs.⁵

• The majority views the facts of this case through hindsight, substituting its own notions for controlling precedent. In the Delphic milieu of an appellate court, the majority condemns Mullenix for his real-time decision to shoot at the car's engine block and proceeds to challenge his judgment for not waiting to see what, if any, effect the tire spikes might have on Leija's flight. In so doing, the majority fails to give Mullenix “breathing room to make reasonable but mistaken judgments” and, in so doing, strips him of the qualified immunity to which he is entitled.⁶

• The majority demonstrates a lack of understanding of qualified immunity and its purpose as set out by the Supreme Court: to “protect officers from the sometimes ‘hazy border between excessive and acceptable force,’ ” especially when—as here, because the majority refused to accept the clearly established law governing car chases—officers lack notice that their conduct is clearly established as unconstitutional.⁷ See Carroll v. Carman, [––– U.S. ––––]

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