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, 935 F.3d 444

Evaluating the qualified immunity defense is thus a two-step process. The first is to determine whether the Fourth Amendment has been violated by conduct that, viewed from the officer's perspective and information at the time, is objectively unreasonable. The second step assesses the objective legal reasonableness of the action, that is, whether every reasonable officer would have known that the conduct in question was illegal. See Pearson , 555 U.S. at 232, 129 S. Ct. at 815-16. The illegality must have been apparent, as held in cases that are factually similar to the situation confronting the officer.

White, 137 S. Ct. at 552. Immunity must be granted to all but the plainly incompetent or those who knowingly violate the law. The Supreme Court has enforced immunity where officers acted negligently, Anderson , 483 U.S. at 641, 107 S. Ct. at 3039-40 ; or when they could have used another method to subdue a suspect, Mullenix , 136 S. Ct at 310 ; or when the law governing their behavior in particular circumstances is unclear. White , 137 S. Ct. at 552. The Court emphasizes that the specificity of the applicable "clearly established" rule is especially important in Fourth Amendment cases. Mullenix, 136 S.

Ct. at 308. By denying plaintiffs their "day in court" at a preliminary stage, qualified immunity operates as a counterintuitive, albeit vital, defense. Thus, the Supreme Court has regularly reversed denials of qualified immunity where lower courts misapplied the standards. See Wesby v. District of Columbia , 816 F.3d 96, 102 (D.C. Cir. 2016) (Kavanaugh, J., dissenting) (citing eleven Supreme Court cases in five years reversing lower courts in the qualified immunity context including Mullenix v. Luna , --- U.S. ----, 136 S. Ct. 305, 193 L.Ed.2d 255 (2015), Taylor v. Barkes , --- U.S. ----, 135 S.

Ct. 2042, 192 L.Ed.2d 78 (2015) ; City and County of San Francisco, Calif. v. Sheehan , --- U.S. ----, 135 S. Ct. 1765, 191 L.Ed.2d 856 (2015) ; Carroll v. Carman , 574 U.S. 13, 135 S. Ct. 348, 190 L.Ed.2d 311 (2014) ; Plumhoff v. Rickard , 572 U.S. 765, 134 S. Ct. 2012, 188 L.Ed.2d 1056 (2014) ; Wood v. Moss , 572 U.S. 744, 134 S. Ct. 2056, 188 L.Ed.2d 1039 (2014) ; Stanton v. Sims , 571 U.S. 3, 134 S. Ct. 3, 187 L.Ed.2d 341 (2013) ; Reichle v. Howards , 566 U.S. 658, 132 S. Ct. 2088, 182 L.Ed.2d 985 (2012) ; Ryburn v. Huff , 565 U.S. 469, 132 S. Ct. 987, 181 L.Ed.2d 966 (2012) ; Messerschmidt v.

Millender , 565 U.S. 535, 132 S. Ct. 1235, 182 L.Ed.2d 47 (2012) ; Ashcroft v. al-Kidd , 563 U.S. 731, 131 S. Ct. 2074, 179 L.Ed.2d 1149 (2011) ). Unfortunately, the majority here has fallen into the trap of "letting the jury sort out the truth" despite the gravity of the situation these officers faced. As explained above, it is undisputed that the two officers confronted and then shot at Cole as he emerged from dense bushes ten to twenty feet from Officer Hunter, unaware of their presence, and began to turn in their direction. This all happened within three to five seconds.

While he turned, Cole held a loaded 9mm semiautomatic pistol, finger on the trigger, pointed in the direction of his own head. The officers knew he was mentally distraught, had ignored other police commands to disarm, had issued threats, and proceeded walking in the direction of nearby schools. For immunity purposes, the question phrased one way is whether any reasonable officers could have believed that Cole's split-second turning toward them posed a life-threatening danger such that lethal force was necessary.

Alternatively, what "clearly established law" held as of October 2010 that under all of the relevant circumstances, deadly force was not justified unless either a warning was given and the suspect allowed a chance to react, or the suspect actually turned his loaded pistol on the officer? The answer here directly parallels the Supreme Court's reasoning in Mullenix , which the majority seriously shortchanged. In Mullenix , this court had denied qualified immunity to a trooper whose shot fatally wounded a suspect fleeing police in a high-speed chase.

The Supreme Court's basic criticism of the panel decision was this: "In this case, the Fifth Circuit held that Mullenix violated the clearly established rule that a police officer may not use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others. Yet this Court has previously considered-and rejected-almost that exact formulation of the qualified immunity question in the Fourth Amendment context." Mullenix , 136 S. Ct. at 308-09 (internal quotation marks and citation omitted).

The majority here posit as clearly established law, indeed an "obvious case," that a police officer may not use deadly force-without prior warning-against an armed, distraught suspect who, with finger in the pistol's trigger, posed "no threat" while turning toward an officer ten to twenty feet away. But in Mullenix, the Supreme Court reversed this court because "[t]he general principle that deadly force requires a sufficient threat hardly settles this matter." Id . at 309. Likewise, here, the majority's "no threat" and "obvious case" conclusions do not settle the matter of clearly established law.

That the majority here purport to extract clearly established law from Tennessee v. Garner was rebuked in Mullenix . The Supreme Court corrected this court by

summary reversal because the Court itself had summarily rejected applying the general standard of Tennessee v. Garner to deny qualified immunity. Mullenix, 136 S. Ct. at 309 (citing Brosseau v. Haugen , 543 U.S. 194, 199, 125 S. Ct. 596, 599, 160 L.Ed.2d 583 (2004) ). Instead, the "correct inquiry" was whether it was clearly established that the Fourth Amendment prohibited the officer's conduct in the precise situation she confronted. Id . Including Mullenix and Brosseau , a series of Supreme Court cases has held that Tennessee v.

Garner does not state "clearly established law" governing the use of deadly force other than in Garner 's precise factual context, the shooting of an unarmed burglary suspect fleeing away from an officer. The confrontation in this case with an armed, ready-to-fire suspect is "obviously" different. We fail to understand how the denial of qualified immunity to Officers Hunter and Cassidy can be rescued simply by intoning that this is an "obvious case" under Garner .

Garner affirmed the constitutionality of deadly force against suspects when necessary to protect the life of officers or others "if, where feasible, some warning has been given." 471 U.S. at 11-12, 105 S. Ct. at 1701. But Garner in no way renders "clearly established" a requirement to give a warning, and await the suspect's response, before shooting. Nor does it mandate that the suspect's weapon be trained on the officer or others.

Like the rest of the calculus surrounding Fourth Amendment reasonableness, the "feasibility" of any such potentially deadly delay or factual nuance must be subjected to case-specific balancing with deference paid to the officer's reasonable perceptions in the midst of a tense situation. Graham, 490 U.S. at 396, 109 S. Ct. at 1872.

Indeed, in describing its holding at the outset, Garner states only that "[deadly] force may not be used unless it is necessary to prevent the escape [of an apparently unarmed suspected felon] and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." 471 U.S. at 3, 105 S. Ct. at 1697. No mention of a warning appears in this introduction, and "probable cause," not a fact-specific test, is the measure of the threat of harm.

Characterizing this case as a "no threat" or "obvious" Fourth Amendment violation is wrong for additional reasons. Whether, under the material undisputed facts, Cole presented "no threat" to a reasonable police officer is the relevant issue to assess a Fourth Amendment violation. But the immunity question, which the majority elides, is whether every reasonable officer in this factual context would have known he could not use deadly force. See Pearson, 555 U.S. at 232, 129 S. Ct. at 815-816. The majority's analysis conflates these inquiries.

Second, the importance of grounding the inquiry in a specific factual context cannot be overstated. In this case, if Officer Hunter had stood a hundred feet away from Cole, or Cole had not been turning toward the officers, or Cole had put the handgun in his pocket and wasn't touching it, the analysis of qualified immunity could be quite different. Third, describing a situation as posing "no threat" is a conclusion, not an explanation or, as the majority seems to think, an exception to defining clearly established law in a specific context.

No doubt there are rare "obvious" cases of Fourth Amendment violations committed by officers who are plainly incompetent or who knowingly violate the law. In the wide gap between acceptable and excessive uses of force, however, immunity serves its important purpose of encouraging officers to enforce the law, in "tense, uncertain and rapidly evolving" split-second situations, rather than stand down and jeopardize community safety.

In their sole, erroneous dependence on Garner, the majority, "can cite no case from [the Supreme] Court denying qualified immunity because officers [entitled to apprehend Cole] selected one dangerous alternative over another." Mullenix, 136 S. Ct. at 310. The Mullenix Court showed that if anything, "clearly established law" was contrary to the plaintiff's position. The Court cited two prior Supreme Court car chase cases that resulted in immunity even though the fugitives-unlike the suspect in Mullenix -had not verbally threatened to kill any officers in their path.

Id . at 310 (citing Scott, 550 U.S. at 384, 127 S. Ct. at 1778 ; Plumhoff , 572 U.S. at 777, 134 S. Ct at 2022 ). And in Mullenix itself, as here, the trooper had not warned the fugitive before shooting at his speeding car. These cases "reveal[ed] the hazy legal backdrop against which Mullenix acted," Id. at 309. Accordingly, the Court admonished, "[w]hatever can be said of the wisdom of Mullenix's choice, this Court's precedents do not place the conclusion that he acted unreasonably in these circumstances beyond debate." Id . at 311 (internal quotation marks omitted).

Not only do the majority cite "no case" in which the Supreme Court denied qualified immunity to an officer who used deadly force against a mentally distraught individual in circumstances like the present case, but to the contrary, the Court required qualified immunity in two somewhat similar cases. In Sheehan , officers used deadly force to subdue a mentally ill woman during an armed confrontation.

The Court restated that the Fourth Amendment is not violated even if police officers, with the benefit of hindsight, may have made some mistakes, because "[t]he Constitution is not blind to 'the fact that police officers are often forced to make split-second judgments.' " Sheehan, 135 S. Ct. at 1775 (quoting Plumhoff , 572 U.S. at 775, 134 S. Ct. at 2020 ). Even closer to this case is White v. Pauly , where an officer arriving at the scene of an armed confrontation shot and killed a suspect without knowing whether his earlier-arrived colleagues had identified themselves as police. 137 S. Ct. at 550-51.

In White , the Court chastised the lower court for "misunderst[anding]" the "clearly established" analysis by relying on the generalized pronouncements in Graham and Garner . Id. at 552. Whether Officer White should have second-guessed the preceding conduct of fellow officers hardly presented an "obvious case" pursuant to Garner. The Court speculated that perhaps, given the three-minute delay between when he arrived and when shots rang out, Officer White "should have realized that [a warning about police presence] was necessary before using deadly force." Id .

There is a world of difference between three minutes and three seconds, which Officer Hunter had here, and between Officer White's securing himself behind a stone wall fifty feet from the suspect and Officer Hunter's standing fully exposed only ten to twenty feet away from Cole. The majority cannot reconcile the Supreme Court's insistence upon qualified immunity in White with their denial of the defense to Officers Hunter and Cassidy. Kisela v. Hughes, cited in support of the majority, in no way articulates clearly established law concerning the necessity of a warning.

First, the Court in Kisela overturned the Ninth Circuit's denial of qualified immunity without addressing the preliminary Fourth Amendment violation. 138 S. Ct. at 1152.

A decision holding only that there was no "clearly established law" cannot itself have defined "clearly established law." The Court also criticized the Ninth Circuit for failing to implement correctly the rule that an officer has not "violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it." Id. at 1153 (internal quotation marks omitted).

The Court catalogued all the relevant circumstances of the confrontation that provoked the shooting: a knife-armed, threatening suspect, whose bizarre behavior had been called in to 911, disobeyed officers' commands to disarm for up to one minute before they felt compelled to shoot. Id . The Court concluded, "[t]his is far from an obvious case in which any competent officer would have known that shooting Hughes to protect [the third party] would violate the Fourth Amendment." Id .

Also "far from obvious" is the case before us, in which the officers had five seconds, not a whole minute, in which to decide whether to shoot at Cole. Finally, the Supreme Court's decision in Tolan v. Cotton adds nothing to the substance of the qualified immunity discussion. In Tolan, the Court enumerated four critical, disputed evidentiary contentions relating to the officer's perception of danger to himself and thus to qualified immunity. 572 U.S. 650, 657-59, 134 S. Ct. 1861, 1866-67, 188 L.Ed.2d 895 (2014).

Because this court had failed to credit the plaintiff's disputed version of these facts, the Court vacated

summary judgment for the officer and remanded without deciding any merits issue. Id. at 657, 134 S. Ct. at 1866. In contrast, this dissent credits only undisputed material facts and plaintiffs' version of disputable facts. Like this court's panel in Mullenix , the majority here offer no controlling Supreme Court precedent, including Garner, to support that "clearly established law" mandated that the officers hold their fire until they had both warned Cole and given him a chance to drop his gun or until he pointed the loaded weapon directly at them.

For good measure, the Mullenix Court also considered the potential similarity of lower court decisions that dealt with qualified immunity. 136 S. Ct. at 311. Fifth Circuit case law, the Court noted, did not "clearly dictate the conclusion that Mullenix was unjustified in perceiving grave danger and responding accordingly." Id . at 311 (citing Lytle v. Bexar County , 560 F.3d 404, 412 (5th Cir. 2009) ).

But the Court quoted with approval an Eleventh Circuit case that granted immunity to a sheriff's deputy who fatally shot a mentally unstable individual "who was attempting to flee in the deputy's car, even though at the time of the shooting the individual had not yet operated the cruiser dangerously. The court explained that 'the law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect...' " Id . at 311 (quoting Long v. Slaton , 508 F.3d 576, 581-82 (11th Cir. 2007) ).

Here, too, the thrust of Mullenix contradicts the majority's logic and holding. Moreover, to the extent it is relevant , Fifth Circuit law does not support denying qualified immunity to Officers Hunter and Cassidy. The district court and, inferentially, the majority demand that qualified immunity be granted only if the suspect either disobeys immediate commands to disarm or points his weapon at the officers. The district court described such threatening actions as a Manis act.

It is true that in previous deadly force cases, this court approved qualified immunity for officers who reasonably believed that a non-compliant suspect was reaching toward where he could retrieve a weapon. See Manis, 585 F.3d at 842 ; see also Reese v. Anderson, 926 F.2d 494, 500-01 (5th Cir. 1991) ; Young v. City of Killeen, Tx., 775 F.2d 1349, 1352 (5th Cir. 1985). The hitch in these particular cases is that there wasn't actually a weapon, yet the officer's objectively reasonable perception was determinative as a matter of law.

In another such officer shooting case, this court upheld qualified immunity where the suspect, who was being interrogated for drunk driving at the side of a freeway, turned to walk away from the officer, then appeared to turn around toward him while reaching under his shirttail for what the officer thought could be a concealed weapon. Salazar-Limon v. City of Houston, 826 F.3d 272, 278 (5th Cir. 2016). This court added, "[f]urthermore, ...in the context of this case, it is immaterial whether Salazar turned left, right, or at all before being shot.

Specifically, we have never required officers to wait until a defendant turns toward them, with weapon in hand, before applying deadly force to ensure their safety." 826 F.3d at 279 n. 6. While a " Manis act" can sustain qualified immunity even where no weapon is visible, it is not logical for an additional "act" to be mandated where the officers confront a suspect armed, ready to shoot his pistol, and turning toward them. An officer may be forced into shooting an unarmed suspect by a Manis act, and thus obtain qualified immunity.

But it is perverse and inconsistent with Fifth Circuit law to hold that the officer has no qualified immunity because she is constitutionally forbidden to shoot an armed suspect in close quarters without either looking down the barrel of the weapon or awaiting his response to her command. In fact, that is exactly what this court has not held. In Ramirez v.

Knoulton, 542 F.3d 124, 127 (5th Cir. 2008), police shot a suspect they believed to be suicidal as he stood in profile to them, with a handgun in his right hand, and "brought his hands together in front of his waist." He "never raised his weapon nor aimed it at the officers." Id. at 129. The court held that based on the officers' reasonable perception, no Fourth Amendment violation occurred, because the Constitution "does not require police officers to wait until a suspect shoots to confirm that a serious threat of harm exists." Id. at 130.

See also Colston, 130 F.3d at 100 ; Ontiveros , 564 F.3d at 385 (holding no constitutional violation where officer thought suspect was reaching into his boot for a weapon during confrontation in a mobile home). As the Supreme Court put it in Mullenix, "the mere fact that courts have approved deadly force in more extreme circumstances says little, if anything, about whether such force was reasonable in the circumstances here." 136 S. Ct. at 312. The majority describe only one Fifth Circuit police shooting case, out of dozens this court has decided, as an "obvious case." Baker v.

Putnal, 75 F.3d 190 (5th Cir. 1996). Whether that characterization applies to the claimed Fourth Amendment violation in Baker , to qualified immunity analysis, or simply to this court's decision to remand for trial is unclear in the majority opinion. Baker, however, says nothing about the merits of the case or about clearly established law, holding instead that "[t]here are simply too many factual issues to permit the Bakers' § 1983 claims to be disposed of on

summary judgment." Baker, 75 F.3d at 198. Hence, like Kisela , Baker cannot support any rule of clearly established law, much less explain what law is "obvious." Significantly, in Baker, whether the suspect was holding a gun visible to the officer was an important hotly contested issue, with eyewitnesses contradicting the officer's account of the incident. Baker , 75 F.3d at 198. Cole's case, in contrast, does not involve a "chaos on the beach" incident. The undisputed facts are starkly different here.

It is undisputed, at a minimum, that Cole was holding a loaded weapon, his finger in the trigger, as he emerged from the woods; he was turning toward the officers; and they had five seconds to react. Baker does not show that the officers' conduct in Cole violated clearly established law. To sum up, the majority opinion here repeats every error identified by the Supreme Court when it granted

summary reversal in Mullenix and sent the instant case back for reconsideration. The majority's "clearly established" rule has changed, but not its errors. Tennessee v. Garner does not formulate "clearly established law" with the degree of specificity required by the Supreme Court's decisions on qualified immunity. The majority's "no threat" and "obvious case" statements pose the issues here at an excessive level of generality.

The majority has no Supreme Court case law demonstrating that Officers Hunter and Cassidy were either plainly incompetent or had to know that shooting at Cole was unconstitutional under the circumstances before them and with the knowledge they possessed-he was mentally distraught; he was armed with his finger in the pistol's trigger; he was very close to Hunter; he had been walking in the direction of schools for which extra police protection had been ordered; and he had ignored other officers' commands to stop and drop his weapon. And they had three to five seconds to decide how dangerous he could be to them.

The majority cites not one case from this court denying qualified immunity under similar circumstances. Mullenix aptly summed it up for our purposes: "qualified immunity protects actions in the hazy border between excessive and acceptable force." 136 S. Ct. at 312 (internal quotation marks omitted). "[T]he constitutional rule applied by the Fifth Circuit was not 'beyond debate.' " Id .

It is not "clearly established" that police officers confronting armed, mentally disturbed suspects in close quarters must invariably stand down until they have issued a warning and awaited the suspects' reaction or are facing the barrel of a gun. "This was not a belief in possible harm, but a belief in certain harm. The fact that they would later discover this to be a mistaken belief does not alter the fact that it was objectively reasonable for them to believe in the certainty of that risk at that time." Carnaby v. City of Houston, 636 F.3d 183, 188 n.4 (5th Cir. 2011).

That is the law in the Fifth Circuit, and the majority has pointed to no clearly established law otherwise. Shooting at Cole may not have been the wisest choice under these pressing circumstances, but the officers' decision, even if assailable, was at most negligent. Hunter and Cassidy were neither plainly incompetent nor themselves lawbreakers. While we are confident a jury will vindicate their actions, they deserved qualified immunity as a matter of law. We dissent. Corbitt v. Vickers , 929 F.3d 1304, 1307-08 (11th Cir. 2019). Id. at 1323.

Zadeh , 928 F.3d at 479-80 (Willett, J., concurring in part, dissenting in part). Four sitting Justices "have authored or joined opinions expressing sympathy" with assorted critiques of qualified immunity. Joanna C. Schwartz, The Case Against Qualified Immunity , 93 Notre Dame L. Rev. 1797, 1800 (2018) (including Justices Thomas, Ginsburg, Breyer, and Sotomayor, plus recently retired Justice Kennedy); see, e.g. , Ziglar v. Abbasi , --- U.S. ----, 137 S.

Ct. 1843, 1872, 198 L.Ed.2d 290 (2017) (Thomas, J., concurring in part and concurring in the judgment) ("In an appropriate case, we should reconsider our qualified immunity jurisprudence."); see also Kisela v. Hughes , --- U.S. ----, 138 S. Ct. 1148, 1162, 200 L.Ed.2d 449 (2018) (per curiam). Doe v. Woodard , 912 F.3d 1278 (10th Cir. 2019), cert. denied , --- U.S. ----, 139 S.Ct. 2616, ----, 204 L.Ed.2d 265 (2019). As for congressional reform, Congress's refusal to revisit § 1983 suggests

Article I acquiescence. 555 U.S. at 236, 129 S.Ct. 808. As observers have cautioned, unfettered Pearson discretion contributes to "constitutional stagnation" by impeding the development of precedent. Aaron L. Nielson & Christopher J. Walker, The New Qualified Immunity , 89 S. Cal. L. Rev. 1, 23-24 (2015). Id. at 7.