UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50163
FRANCISCA CASTILLO; OLIVIA LOPEZ;
JOHN CASTILLO; MARY CARLEEN; FRANCIS
DELGADO; LUIZ CASTILLO; GILBERT CASTILLO;
RAYMOND CASTILLO; RUSSELL CASTILLO; JOE
CASTILLO; PETE CASTILLO; PAT SALAZAR;
VICKI SHAW,
Plaintiffs- Counter Defendants-
Appellees,
versus
CITY OF ROUND ROCK, TEXAS; MICHAEL H.
KINCAIDE, Officer, (4101); THOMAS C.
JACOBS, Corporal; SAMMY LEDESMA, Officer
(4112),
Defendants- Counter Claimants-
Appellants.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
(A-96-CV-863)
- - - - - - - - - -
March 15, 1999
Before HIGGINBOTHAM, JONES, and WIENER, Circuit Judges
Per Curiam:*
This civil rights case brought by the survivors of Jesus
Castillo (collectively, the Castillos) against the City of Round
Rock, Texas and three of its police officers (collectively, the
Defendants), alleging that three of the City’s law enforcement
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
officers used excessive force in seizing Castillo and were
deliberately indifferent to his ensuing medical needs, implicates
42 U.S.C. § 1983, the Texas Wrongful Death Act, the Texas Survivor
Statute, the Texas Tort Claims Act, and Common Law tort law. In
response to motions for summary judgment filed by the Defendants on
grounds of qualified immunity, the district court denied dismissal,
concluding that genuine issues of material fact precluded such a
disposition of the case. Even when we view the summary judgment
evidence in the light most favorable to the Castillos, we are
convinced that the actions of the City’s police officers were
objectively reasonable under the circumstances and were taken in
good faith, within the scope of their authority, thereby entitling
the Defendants to summary judgments of dismissal as to all claims
asserted against them.
I.
Facts Most Favorable to the Castillos
Late one cold January afternoon, the Round Rock Police
Department began receiving 911 reports that a pedestrian was
yelling and interfering with traffic at the intersection of Highway
620 and Interstate Highway 35. Dispatchers relayed the information
to Officers Kincaide and Ledesma, who responded in their separate
patrol cars. As they were proceeding to the scene, the officers
were further advised by a police dispatcher that a man fitting the
same description was reported to be stealing popcorn and beer from
a Texaco station at that location. The subject of the reports
turned out to be Castillo, a relatively short and heavy, 39-year-
2
old Hispanic male with a history of mental illness.1
Officer Kincaide was the first to arrive, spotting Castillo in
the drive-through lanes of an adjacent bank, lightly clad despite
the near-freezing temperature. Officer Kincaide ordered Castillo
to stop where he was, and Castillo complied, placing a pack of beer
on the ground, taking a drink from the bottle of beer he held in
his hand, and then raising both hands while he continued to hold
the beer bottle in one hand. Kincaide approached Castillo and
“attacked him,” knocking the beer bottle out of his hand. Officer
Kincaide and Castillo fought, struggling vigorously on the ground,
as Kincaide attempted to subdue Castillo and citizen bystanders
tried to aid in that effort. Castillo bloodied Officer Kincaide’s
nose in the fracas, and it bled profusely.
Officer Ledesma arrived and assisted Officer Kincaide,
together with citizen bystanders, in restraining Castillo in the
prone position on the ground, eventually handcuffing his hands
behind his back. Corporal Jacobs arrived after Castillo was
handcuffed but while he was still kicking and yelling. Officer
Kincaide and a male bystander climbed atop Castillo as the three
officers put flex cuffs on Castillo’s legs. All told, Officer
Kincaide and the Good Samaritan remained on Castillo’s back for
four to six minutes. During the struggle, Officer Kincaide shoved
his knee in the back of Castillo’s neck and kept it in there for
some five to ten minutes. At one point, Castillo exclaimed in
1
The Castillos allege that Castillo and Officer Kincaide had
been schoolmates but the record does not reflect that the officer
recognized Castillo or was aware of his mental condition.
3
Spanish that he was going to die. Noticing that Officer Kincaide
was bleeding, Corporal Jacobs radioed the dispatcher to send an
ambulance to the scene.
When, after being handcuffed and leg-shackled, Castillo
finally stopped struggling, the officers rolled him over onto his
back. When they did, the officers noticed that Castillo’s face had
turned blue and that he appeared to be unconscious. The ambulance
arrived shortly and took Castillo to a nearby hospital where he
died approximately a week later without having regained
consciousness. Castillo’s tragic death was caused by anoxic
encephalopathy that produced cardiorespiratory arrest during the
positional asphyxia that resulted from his being laid on the
ground, handcuffed and in the prone position, for four to six
minutes with the weight of two adults on his back.2
The Castillos filed state wrongful death and survival claims,
and a federal civil rights claim under 42 U.S.C. § 1983, against
the Defendants. The Castillos alleged violations of the Fourth,
Fifth, Eighth, and Fourteenth Amendments of the United States
Constitution. They also asserted a negligence claim against the
City of Round Rock and both statutory and common law tort claims
against Kincaide, Ledesma, and Jacobs, in their individual and
official capacities.
The parties agreed to proceed before a magistrate judge. The
Defendants filed motions for summary judgment, which the magistrate
2
Castillo suffered from health problems that included
obesity and an enlarged heart, which might have contributed to his
death.
4
judge granted as to the Fifth and Eighth Amendment claims but
denied as to the Fourth and Fourteenth Amendment claims and as to
the state law claims as well. The Defendants timely filed notices
of appeal from the court’s interlocutory refusal to dismiss all
claims on grounds of qualified or official immunity.
II.
Analysis
We conclude that we have jurisdiction to review this case. We
recently clarified our approach to the arcane issues whether and
under what circumstances we can review a district court’s
interlocutory denial of qualified immunity. In Colston v.
Barnhart,3 we stated that:
when a district court denies a motion for
summary judgment on the ground that “genuine
issues of material fact remain,” the court has
made two distinct legal conclusions. First,
the court has concluded that the issues of
fact in question are genuine, i.e., the
evidence is sufficient to permit a reasonable
fact finder to return a verdict for the
nonmoving party. Second, the court has
concluded that the issues of fact are
material, i.e., resolution of the issues might
affect the outcome of the suit under governing
law.4
Thus, an appellate court may not review a district court’s
determination that disputed issues of fact are genuine, but may
review the question of materiality.5 The Defendants maintain that
when we accept as true that Castillo raised his hands to surrender
3
146 F.3d 282 (5th Cir.)(order denying rehearing en banc),
cert. denied, 119 S. Ct. 618 (1998).
4
Id. at 284 (citation omitted).
5
See Id.
5
peacefully and accept the Castillos’ version of how the police
officers’ actions led to Castillo’s death, we have jurisdiction to
consider whether the lower court erred in not granting summary
judgment. In essence, the Defendants argue that the disputed facts
do not affect whether qualified immunity applies; rather that, even
assuming the truth of the Castillos’ version of the facts, the
Defendants have not violated Castillo’s constitutional rights. As
such, any genuine dispute about the facts is not material. We
agree that, under such an approach, we have appellate jurisdiction.
Claims of excessive or deadly force arise under the Fourth
Amendment.6 The “reasonableness” standard requires a “careful
balancing of the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the countervailing
governmental interests at stake.”7 The reasonableness
determination involves a fact-intensive analysis of the case,
including consideration of “the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest” to
determine whether the force used was excessive.8
When, in our de novo review, we consider the otherwise
6
See Graham v. Connor, 490 U.S. 386, 395 (1989)(“[A]ll
claims that law enforcement officers have used excessive force ——
deadly or not —— in the course of an arrest, investigatory stop, or
other single