Thompson v. Mercer

• Decision Date: 07 August 2014
• Docket Number: No. 13–10773.,13–10773.
• Citation: 762 F.3d 433
• Parties: Troy THOMPSON, Individually, and as Heir to the Estate of Keith Thompson; Teresa Thompson, Individually, and as Heir to the Estate of Keith Thompson, Plaintiffs–Appellants, v. Sheriff Ira A. MERCER; Palo Pinto County, Texas, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

762 F.3d 433

Troy THOMPSON, Individually, and as Heir to the Estate of Keith Thompson; Teresa Thompson, Individually, and as Heir to the Estate of Keith Thompson, Plaintiffs–Appellants,

v.Sheriff Ira A. MERCER; Palo Pinto County, Texas, Defendants–Appellees.

No. 13–10773.

United States Court of Appeals, Fifth Circuit.

Aug. 7, 2014.

Peter Christian Smythe, Peter Smythe, P.C., Arlington, TX, Bart Behr, Behr Law Firm, San Marcos, TX, for Plaintiffs–Appellants.

Grant David Blaies, Esq., Blaies & Hightower, L.L.P., Fort Worth, TX, for Defendants–Appellees.

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

Before DAVIS, SMITH, and BENAVIDES, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

Keith Thompson (“Keith”) was killed when Palo Pinto County Sheriff Ira Mercer ended a two-hour high-speed chase by firing an assault rifle into the vehicle Keith had stolen. Keith's parents (“the Thompsons”) brought the present action against Mercer and the County pursuant to state law and 42 U.S.C. § 1983, alleging that Mercer used excessive force in apprehending the suspect. The district court granted the defendants' joint motion for summary judgment after granting qualified immunity to Mercer and declining to exercise supplemental jurisdiction over any remaining state claims. The Thompsons filed timely appeal.

We review summary judgment de novo, applying the same standard as the district court. Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir.2011). Summary judgment is appropriate where the record and evidence, taken in the light most favorable to the non-moving party, show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Ibid. (quoting Fed.R.Civ.P. 56(a)). In making this determination, “evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tolan v. Cotton, ––– U.S. ––––, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) (per curiam) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A public official is entitled to qualified immunity unless his conduct violates constitutional law that was “clearly established at the time of the defendant's actions.” Freeman v. Gore, 483 F.3d 404, 411 (5th Cir.2007) (citations omitted). Because we conclude that there was no constitutional violation in Mercer's use of deadly force, we affirm the district court's decision.

I.

“The first step in assessing the constitutionality of [Mercer's] actions is to determine the relevant facts.” Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Review of the record reveals virtually no dispute as to the material facts. Much of the incident, including its unfortunate conclusion, was recorded by video cameras. Although courts must construe evidence in light most favorable to the nonmoving party, we will not adopt a plaintiff's characterization of the facts where unaltered video evidence contradicts that account. Id. at 381, 127 S.Ct. 1769.

The incident occurred on Sunday, December 18, 2011, from approximately 6:45 to 8:50 in the morning.¹ It is undisputed that Keith stole a vehicle, kidnapped its sleeping occupant, and then fled for two hours at speeds in excess of 100 miles per hour. The kidnapping victim—who was later released—furtively dialed 911, allowing dispatchers to overhear Keith state that he would “kill himself” when he “got to where he was going.” The victim also revealed that there was a firearm in the vehicle. While in flight, Thompson ignored traffic laws, did not yield to law enforcement, and was at one point pursued by six vehicles representing four different law enforcement units. Officers made multiple attempts to disable Keith's vehicle, all of which failed. Sheriff Mercer did not participate in the pursuit, but was kept apprised of developments and was aware of these facts.

It is equally uncontested that Sheriff Mercer laid in wait with a semi-automatic “AR–15” assault rifle on the shoulder of FM 4, a rural road running between the towns of Lone Camp and Santo, Texas. He did not position his cruiser as a barricade or employ any device that might have disabled Keith's vehicle. When the vehicle came into view, Mercer fired into its hood, striking the radiator. Mercer believed he had hit the radiator, but the vehicle did not appear to slow down.² Mercer then aimed directly into the windshield, striking Mercer three times in the head and neck after firing a total of twelve rounds. The vehicle passed within three or four yards of Mercer. Mercer concedes that there were no bystanders in the area, and that he had seen no traffic in the vicinity.

The briefs reveal only one plausible factual dispute: the parties disagree as to how many third parties were endangered by Keith's flight. Mercer emphasizes the inherently dangerous nature of the driving, and points to the passing cars seen in the video recordings. The Thompsons argue that—irrespective of how many third parties had already safely bypassed the chase—their son never actually hurt anyone and was driving in an empty rural area at the time he was shot. They contend that on a Sunday morning it was particularly unlikely that additional driving would endanger anyone, and thus that Mercer's conduct was objectively unreasonable.

The Thompsons did not dispute any other facts before the district court, but instead objected to “all of the evidence” as “bias[ed]” and “irrelevant and prejudicial.” Op. at 437. The district court overruled those objections, ibid., and the Thompsons do not appeal that decision.

II.

After reviewing the record and the relevant law, we conclude that the court correctly awarded summary judgment to the defendants. We begin with the § 1983 claim against Sheriff Mercer. Even construing the facts in favor of the Thompsons, it seems clear that Mercer acted within the bounds of the Constitution, and is entitled to qualified immunity even if we assume that he did not. “The doctrine of qualified immunity protects government officials ‘from 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.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “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.’ ” Ashcroft v. al–Kidd, ––– U.S. ––––, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). In order to overcome a qualified immunity defense, a plaintiff must allege a violation of a constitutional right, and then must show that “the right was clearly established ... in light of the specific context of the case.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson, 555 U.S. 223, 129 S.Ct. 808. Courts may address these two elements in either order, and need not proceed to the second where the first is resolved in the negative. See Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 409–10 (5th Cir.2009) (citing Pearson, 555 U.S. at 231, 129 S.Ct. 808).

A.

The district court correctly concluded that the Thompsons have not alleged a constitutional violation. A plaintiff does not overcome qualified immunity by merely alleging “that a violation arguably occurred.” Connelly v. Comptroller of the Currency, 876 F.2d 1209, 1212 (5th Cir.1989) (emphasis original). “Rather, the court must be certain that if the facts alleged by plaintiff are true, notwithstanding any credibility disputes with defendants, then a violation has clearly occurred.” Ibid. (emphasis original). Here, even construing the facts in the Thompsons' favor, there was no Fourth Amendment violation.

The Fourth Amendment guarantees the right to be free from “unreasonable searches and seizures.” U.S. Const. amend. IV. It is undisputed that the apprehension of Keith Thompson by deadly force was a seizure. Therefore, to prevail on their excessive force claim, the Thompsons need only show that the use of deadly force was excessive, and “that the excessiveness of the force was unreasonable.” Carnaby, 636 F.3d at 187 (citing Freeman, 483 F.3d at 416). In making that argument, the Thompsons recognize that “ ‘[u]se of deadly force is not unreasonable when an officer would have reason to believe the suspect poses a threat of serious harm to the officer or others.’ ” Id. at 188 (quoting Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir.2003)) (alteration original). They dispute whether the requisite threat of serious harm existed at the time Keith was killed. We find that it did.

In Scott v. Harris, the Supreme Court addressed the extent of reasonable force in the context of law enforcement's need to curtail vehicular flight. See generally 550 U.S. 372, 127 S.Ct. 1769. Officer Scott ended a high-speed chase by using his police cruiser to bump the suspect's vehicle. Id. at 376, 127 S.Ct. 1769. The ensuing collision rendered that suspect a paraplegic. Ibid. Even so, the Supreme Court ultimately rejected the suspect's allegations of excessive force, holding that “[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.” Id. at 386, 127 S.Ct. 1769. In so holding, the Court established the framework by which courts should evaluate the reasonableness of the force used:

In determining the reasonableness of the manner in which a seizure is effected,“[w]e must balance the nature and quality of the intrusion on the individual's Fourth...