Reese v. Anderson

Decision Date21 March 1991
Docket NumberNo. 90-8247,90-8247
Citation926 F.2d 494
PartiesIrene REESE, etc., et al., Plaintiffs-Appellees, v. Steve ANDERSON, et al., Defendants-Appellants. Summary Calendar.
CourtU.S. Court of Appeals — Fifth Circuit

James Ludlum, Ludlum & Ludlum, Austin, Tex., for defendants-appellants.

El-Hadi T. Shabazz, Shabazz & Assoc., Waco, Tex., Glenn O. Lewis, Lewis & Haley, Ft. Worth, Tex., for plaintiffs-appellees.

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

Before GOLDBERG, HIGGINBOTHAM and BARKSDALE, Circuit Judges.

GOLDBERG, Circuit Judge:

This is an interlocutory appeal from denial of summary judgment in a Sec. 1983 action.

A robbery suspect was shot and killed by a Waco police officer. His mother sued the officer, police chief, city manager, and the City of Waco, alleging lack of justification and failure to train and supervise. Defendants sought summary judgment on the grounds of qualified immunity. The district court denied the motion, and defendants appealed. We reverse as to the individual defendants but dismiss the City's appeal for want of jurisdiction.

Facts

On June 14, 1989, a robbery occurred at a convenience store in Waco. Responding to a radio call, Waco police officer Steve Anderson spotted the suspected getaway car and gave chase at speeds of forty to sixty miles per hour. During the chase, according to Anderson and not disputed by Reese, the front-seat passenger twice discarded beige objects that appeared to be portions of a cash register. Eventually the car spun out of control and came to stop with the passenger side directly in front of Anderson's now-stopped patrol car. The driver and his three passengers remained inside. The front-seat passenger, it was later learned, was Richard Crawford, Jr., age twenty, plaintiff's decedent. The driver was Crawford's sixteen year-old brother.

The parties agree that Officer Anderson drew his gun and repeatedly ordered the occupants to raise their hands. Crawford repeatedly raised and then lowered his hands. After this occurred several times, Anderson shot Crawford once in the head, from a distance of about ten feet, killing him. However, the parties differ as to precisely how this transpired.

Defendant Anderson's narrative, set out in his affidavit, is as follows: Anderson opened his car door and leaned out halfway. He drew his service weapon and pointed it at the driver and front-seat passenger (Crawford). Anderson's patrol-car siren, which he had activated during the chase, continued to sound; shutting off the siren would have meant diverting his attention, switching his gun from hand to hand, and placing himself in danger. Above the noise of the siren, Anderson repeatedly yelled for the driver and Crawford to raise their hands. They complied, and each time he yelled, Crawford nodded. Anderson inferred from these actions that the occupants heard and understood his commands despite the siren.

As Anderson continued to yell, Crawford started reaching down with his right hand, lowering it out of Anderson's sight behind the still-closed car door. Anderson yelled again for Crawford to raise his hands, and he complied immediately, replying with words that looked like "Okay" or "Alright." After a couple of seconds, Crawford again started reaching down. Again Anderson yelled, and again Crawford complied. All the while, Anderson had his gun pointed at Crawford.

At this point in his narrative, Anderson notes that "The passenger in the front seat [Crawford] looked to me like a black male known as Bennie Sanders [who] I knew ... had been arrested ... several months back for armed robbery."

After a couple more seconds, Crawford again began reaching down. This time he turned slightly to his left, away from Anderson, leaning over and tipping his right shoulder downward. He reached further down toward the floorboard and to the left side of his seat.

"At this point," Anderson recites, "I felt strongly the subject had picked up a gun and was going to shoot me as soon as he raised his hands up above the closed door." Anderson was ten feet away from Crawford and feared he would be shot before having time to react. Nearby was Officer Mary Crook, who had joined in the pursuit, and Anderson feared that she too was in danger. When Crawford started to sit up, raising his right hand, Anderson shot him once in the head, killing him.

Crawford's mother, plaintiff Reese, sets out a significantly different account in her complaint. 1 As she describes it, approximately nine police officers with guns drawn surrounded the suspect car after the chase ended. Anderson stood behind his patrol car door, less than ten feet from the stopped car, and ordered the car's occupants to raise their hands. Crawford lowered his left hand to shut off the ignition, then raised it with nothing in his hand. Anderson began to shout abusively. Crawford lowered his left hand again, placing it on his brother's shoulder. At no time did Crawford bend or lean over, reach down with or lower his right hand, make any sudden movements, or display any weapons or other objects in his hands.

At this point, Crawford either raised his left hand, then lowered it again to his brother's shoulder, or else he simply continued resting it on his brother's shoulder; Reese's pleading is somewhat unclear. Crawford turned his head towards his brother with an expression indicating " 'I'm sorry to have gotten you into this.' " Crawford then turned his head towards Anderson. Anderson took careful aim, and shot Crawford in the head, killing him. Crawford was in fact unarmed. 2

The district court provides a third, somewhat more general account of this incident. The court's description is styled as a background statement in its ruling on a motion to dismiss, rather than as findings of fact, and its evidentiary foundation is unclear. Nonetheless, we set out this account here for the sake of completeness:

[W]hen the car came to a stop approximately nine police officers were on the scene. The officers surrounded the car with their guns drawn.... At this point, Anderson got out of his car, stood behind his car door and told the suspects to put their hands up. However, Richard Crawford, Jr. disobeyed Anderson's command and lowered his left hand. Anderson continued to caution and threaten Crawford of the consequences of not cooperating, but Crawford failed to raise both hands and follow the commands of the officer. Finally, Anderson shot Richard Crawford, Jr. once, hitting the right side of his head, killing him. Crawford was later determined to have been unarmed.

R. 196--195 (Order of Dec. 20, 1989).

We should also note that Reese's complaint alleges various acts and omissions on the part of Anderson, the police chief, and the city manager in support of her contention that the shooting resulted in part from a failure by supervisory personnel and the city to properly train and supervise officers in the use of deadly force. The three individual defendants dispute the allegations and contentions in their affidavits.

Proceedings Below

Following the shooting, Crawford's mother, Irene Reese, sued Officer Anderson, Waco Police Chief Larry Scott, Waco City Manager John Harrison, and the City of Waco. She alleged violations of 42 U.S.C. Sec. 1983 and various other federal and state constitutional and statutory provisions, and sought damages and injunctive relief.

Anderson moved to dismiss for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). He argued that Reese had not pled facts with sufficient particularity to overcome the individual defendants' qualified immunity, see Jacquez v. Procunier, 801 F.2d 789, 791-93 (5th Cir.1986) (enunciating heightened pleading requirement), nor alleged an actionable policy, custom, or practice under which the City could be held liable. The district court denied the motion.

Anderson then filed a similar motion for summary judgment under Rule 56, arguing that Reese had not adequately supported her claims with summary judgment evidence. Reese responded that Anderson was "attempt[ing] to try the case by 'Affidavits'," that the motion was "premature on the grounds that discovery has not been completed," and that the motion was a "rehash" of the earlier motion to dismiss.

The court agreed with Reese, and denied the motion with the following language:

On December 20, 1989, this Court denied Defendants' Second Motion to Dismiss on essentially the same grounds upon which Defendants now request a summary judgment. In that Order, the Court found that Plaintiff's allegations are sufficient to overcome Officer Anderson's immunity defense, and that the suit against the City of Waco should not be dismissed for failure to state a policy. Defendants appear to have simply converted the original motion to dismiss to a motion for summary judgment by attaching three affidavits and changing the title.... Accordingly, IT IS ORDERED that Defendants' Motion for Summary Judgment is DENIED[.]

R. 460-459 (District Court Order of April 9, 1990).

Jurisdiction

As a threshold matter, we must decide if this appeal is properly before us. Ordinarily, a district court's denial of summary judgment is an interlocutory order not appealable as of right. However, the Supreme Court has established a limited exception in cases where the denial defeats a claim of qualified immunity. 3 Accordingly, the appeal of the individual defendants is properly before us.

The city's appeal is not, however. As we have recently explained, municipalities do not have the right of interlocutory appeal under these circumstances. See McKee v. City of Rockwall, 877 F.2d 409, 412-13 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 727, 107 L.Ed.2d 746 (1990). Accordingly, the City's appeal must be dismissed for want of appellate jurisdiction.

Standard and Scope of Review

As we have noted, the district court denied summary judgment, reasoning that the ...

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