Bazan Ex Rel. Bazan v. Hidalgo County

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 97-41463

JUDITH BAZAN, by next friend Victoria Rose Bazan, individually
and as representative of the Estate of Leonel Bazan, Jr.,
Deceased; VICTORIA ROSE BAZAN, a Minor,

Plaintiffs-Appellees,

ROSE MARIE AVALOS,

Intervenor-Appellee,

versus

HIDALGO COUNTY, ET AL.,

Defendants,

RAUL VARGAS, Individually and in his Official Capacity,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Texas

March 27, 2001

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For this interlocutory appeal from the summary judgment denial

of qualified immunity for Texas Department of Public Safety (TDPS)

Trooper Raul Vargas’ use of deadly force (the Trooper being the

sole surviving witness to such use and the test being whether his

actions were objectively reasonable), the threshold issue is

whether the facts the district judge concluded are genuinely
disputed are also material. If they are material, we lack

jurisdiction.

In addition to claiming entitlement to qualified immunity, the

Trooper contends the district court erred in accepting affidavits

of two witnesses to events preceding the use of deadly force. He

claims the affidavits conflict with the witnesses’ earlier

depositions. Because the facts the district court concluded are

genuinely disputed are also material to the reasonableness of the

Trooper’s conduct, appellate jurisdiction is lacking. DISMISSED.

I.

While in his patrol car close to midnight on 26 August 1993,

Trooper Vargas observed a vehicle without headlights skidding into

a ditch. Its driver was the decedent, Leonel Bazan, Jr. (Bazan);

his brother, Victor Bazan, was in the back; Rogelio Salinas, the

front. Following his confrontation with the Trooper at the

vehicle, Bazan fled into a field; Trooper Vargas chased him; and,

while the two were alone there, the Trooper shot Bazan. He died

from the wound.

The accounts of what occurred at the vehicle differ.

Therefore, the Trooper’s version is presented first, then those of

the two witnesses. Next presented is the Trooper’s description of

events once Bazan fled into the field and he alone followed;

finally, the deposition testimony of two post-deadly-force

2
witnesses and the opinion (by affidavit) of the Trooper’s expert

witness.

A.

1.

Trooper Vargas’ version (his deposition and affidavit)

follows. Because he was alone in a dark, high-crime area, when his

instructions that Bazan exit his vehicle were not obeyed, the

Trooper drew his service revolver. He repeated the order, but

Bazan did not immediately comply. Bazan suddenly exited; he

appeared “excited” and “fidgety”, talking loudly and flinging his

arms, and did not follow the Trooper’s order to “get down on the

ground”. Trooper Vargas shined his flashlight into Bazan’s face;

his eyes were bloodshot and glassy. (This observation was

corroborated by Victor Bazan’s deposition: he and Bazan had smoked

marijuana earlier that day, and Bazan had been drinking alcohol

throughout the day. Bazan’s autopsy revealed a blood-alcohol level

of 0.07 and traces of cocaine, but not marijuana.)

Bazan moved toward Trooper Vargas, who placed his foot in

Bazan’s abdomen and “pushed” him away. After the Trooper did so,

Bazan crouched over and asked why the Trooper had “kicked” him.

Bazan told Trooper Vargas he had to urinate. The Trooper

reholstered his service revolver; and, while he allowed Bazan to

urinate, the Trooper smelled alcohol. Bazan was crying and asked

to be left alone, saying he lived “right there”, pointing east.

3
 The Trooper reached for Bazan to lead him back to Bazan’s

vehicle to arrest him. Bazan grabbed the Trooper’s flashlight, and

asked why he was being arrested. Trooper Vargas replied it was

because Bazan was drunk. The Trooper drew his baton, because the

manner and force with which Bazan had grabbed the Trooper’s

flashlight showed Bazan would not be arrested willingly.

Repeatedly, Bazan asked why the Trooper wanted to hit him. The

Trooper replied: he did not want to; Bazan should put his hands on

the vehicle.

Next, Bazan grabbed the Trooper’s baton. Trooper Vargas said

that, if Bazan took the baton, he would have to shoot him.

Realizing he could not overpower Bazan, the Trooper released the

baton and drew his revolver; Bazan complied, releasing the baton.

Trooper Vargas instructed Bazan to place his hands on the

vehicle, and then walked to his patrol car to radio for assistance.

Salinas told Bazan to calm down, that the Trooper was not going to

hit him. But, before the Trooper called for assistance, Bazan

began to run east across a field toward residences.

The Trooper chased him. In doing so, the Trooper left the

other two individuals — Victor Bazan and Salinas — at his

unattended police vehicle; he did so because his “business was with

the driver”, Bazan.

4
 2.

Victor Bazan’s deposition follows. Trooper Vargas instructed

Bazan at least twice to exit his vehicle before he did so.1 Upon

exiting, Bazan lifted his shirt, saying, “I don’t have nothing on

me”, apparently to show he was unarmed. The Trooper then pushed

Bazan back with his foot, and Bazan slipped to his knees. (Victor

Bazan initially testified that Trooper Vargas “didn’t kick [Bazan]

... [but rather] pushed him back” (emphasis added); later, he and

counsel for the Trooper debated the applicability of the word

“kick”, and Victor Bazan concluded the Trooper “kicked [Bazan] down

or pushed him down”.)2

The Trooper told Bazan to get on the ground; Bazan refused.

At that point, the Trooper pulled out his baton and “kind of, like,

you know, psyched him out”, so Bazan grabbed the baton.3 Trooper

1
Victor Bazan’s affidavit states: “Leonel [Bazan] got out as
he was told.”
2
Victor Bazan’s affidavit states: the Trooper kicked Bazan in
the stomach.
3
Victor Bazan’s affidavit states:

[The Trooper] went at Leonel several times
with the baton as if to hit him. He seemed to
be trying to psyche Leonel out. He acted real
aggressive even though Leonel was on his
knees. Leonel crouched down as RAUL VARGAS
swung at him. Finally, Leonel reached up to
stop the baton when it looked like he would
hit him. RAUL VARGAS then reached up with the
flash light to hit Leonel. Leonel reached up
again from his knees to defend himself, asking
“why do you want to hit me?” Leonel was right

5
Vargas threatened that, if Bazan did not drop the baton, he would

draw his revolver. Bazan dropped the baton.

Bazan’s request to urinate was subsequent to the scuffle over

the baton (in contrast to the Trooper’s chronology). The Trooper

reholstered his revolver at that point. Bazan asked why the

Trooper wanted to arrest him; the Trooper replied it was because

Bazan was drunk. Bazan told the Trooper not to hit him. (Victor

Bazan did not recall the Trooper’s replying he was not going to or

did not want to hit him; nor did he recall Bazan’s yelling at the

Trooper.)

The Trooper never said anything rude or improper to the three

men.4 On the other hand, the Trooper was not reasonable in telling

Bazan to lie on the ground before he asked for a driver’s license

or if Bazan had been drinking.

beside me when this happened. He had tears in
his eyes.
4
In his affidavit, Victor Bazan recalled that, as the Trooper
walked to his patrol car, he said in Spanish: “[N]ow you’re gonna
get it”.

It was not so much the words RAUL VARGAS used.
He did not curse or scream. He appeared
enraged from the start. He kept attacking my
brother when he had not said or done anything
aggressive to or disrespectful of the officer.
While my brother was crying he continued to
raise his baton at him and order him to the
ground. We were all afraid of that guy.

6
 3.

Salinas’ deposition follows. He did not remember if the

Trooper asked Bazan to get out of his vehicle more than once. The

Trooper and Bazan used the same tone of voice — “yelling”.

As Bazan walked toward Trooper Vargas, the Trooper put his

foot up and pushed Bazan’s stomach, at which point Bazan fell on

his knees.5 While on his knees, Bazan lifted his shirt to show he

had no weapon.

When Bazan refused to lie on his face, the Trooper swung a

flashlight, which Bazan caught in one hand; Trooper Vargas, with

the other hand, then swung his baton, which Bazan caught as well,

asking what was going on.6 Bazan released both items when the

Trooper threatened to pull his revolver, but the Trooper drew it

anyway and pointed it at Bazan.

The Trooper next allowed Bazan to urinate (same chronology as

Victor Bazan’s). Then, the Trooper went to his patrol car to use

5
Salinas’ affidavit states:

From the time the officer first walked up to
the car he was acting very weird. He was very
aggressive, and only focussed [sic] on Leonel.
He seemed to be taunting Leonel and threatened
him several times as if to try to start
something. It wasn’t what he said but what he
did that was so strange. He kicked Leonel
when Leonel showed him he was unarmed. He
demanded Leonel lie face down on the ground
while he would swing at him with the baton.
6
Salinas’ affidavit states: Bazan was only trying to protect
himself.

7
the radio. (Salinas did not recall the Trooper’s telling Bazan he

was under arrest.)

The Trooper never said anything improper, unprofessional, or

threatening to Salinas. But, under the circumstances, the Trooper

did show improper or unprofessional behavior toward Bazan:

“[A]fter they were struggling with a baton and the flashlight, ...

I kept wondering why he didn’t arrest him instead of just letting

him stand there so he could take off running”.7 At some point,

Salinas told Bazan to calm down, that the Trooper was not going to

hit him (consistent with the Trooper’s version).

After Bazan ran into the field and the Trooper chased him,

Salinas and Victor Bazan could see nothing but a shaking

flashlight. After waiting about five minutes, they drove away.

B.

Trooper Vargas’ account of the events after Bazan began

fleeing follows. In the field, the Trooper paced Bazan, who was

not running fast and at times stumbled. The Trooper noted Bazan

was larger than he, but probably not in better physical condition.

(Bazan and the Trooper were each five feet and 11 inches in height;

but, while Bazan weighed approximately 225 pounds, the Trooper

weighed only approximately 175 pounds, 50 less than Bazan.)

Although he repeatedly encouraged Bazan to surrender, Bazan replied

7
Salinas’ affidavit states: he thought the Trooper was going
to shoot Bazan for asking to urinate; and, as the Trooper walked to
his patrol car, he said: “Now you’re going to get it”.

8
he was almost home. Bazan eventually tripped and fell; the Trooper

tried to keep him down, but Bazan grabbed his flashlight. The

Trooper was about to hit Bazan’s arm with his baton; but, as Bazan

raised his arm, the Trooper hesitated, not wanting to hit Bazan in

the head; Bazan then grabbed the baton as well.

They were both standing, struggling, and the Trooper released

his flashlight to try to apply a carotid hold on Bazan from behind.

They fell to the ground; the Trooper was on his back, beneath

Bazan, with the front of his body to Bazan’s back. While on the

ground, Trooper Vargas was approximately six to eight inches higher

than Bazan, and his left arm was “around and over [Bazan’s] head”.

Bazan began swinging the flashlight over his head to hit the

Trooper on the head. Bazan also reached back and tried to choke

the Trooper, making him gag. Then the Trooper realized Bazan was

biting his left fingers, such that he thought he might lose them.

Trooper Vargas also realized his left arm was being immobilized, a

blow to his head with his flashlight could knock him out, and Bazan

could then kill him with the Trooper’s revolver. Therefore, the

Trooper discharged his revolver into Bazan’s neck.

Trooper Vargas then sat on Bazan, who continued to struggle

even though the Trooper could hear him gurgling. The Trooper

called for help, and Anita Flores heard and called an ambulance.

Trooper Vargas repeatedly told Bazan to rest, that an ambulance was

on its way.

9
 Deputy Roy Quintanilha arrived. (It is unclear why the Deputy

came to the scene or became aware of the incident.) Bazan still

resisted being handcuffed, and it was difficult for the Trooper to

help, because the fingers of his left hand were numb.

C.

1.

In her deposition, Flores characterized the Trooper’s calls

for help as desperate; she noticed he could not use his left hand

to open the gate to the field; and she commented, “I saw his hat

with certain injury” (emphasis added) (an interpreter assisted with

Flores’ deposition, and her meaning is less than clear). Flores

offered to perform CPR on Bazan, but was told he was breathing

well.

2.

As noted, Deputy Quintanilha arrived at the scene after Flores

had called for an ambulance. As stated in his deposition, the

Deputy’s observations on arrival were: Bazan was trying to get up

and looked very combative; and the Trooper was exhausted, barely

able to breathe.

3.

Albert Rodriguez, Commander of the TDPS’ training academy,

opined by affidavit: any reasonable and prudent law enforcement

officer faced with the same or similar circumstances would have

taken the same actions as did Trooper Vargas, perceiving an

10
imminent threat to his life when faced with the totality of the

circumstances created by Bazan.

D.

Later that night, Bazan died in the emergency room as a result

of the gunshot wound. Trooper Vargas and others were sued under

the civil rights act, 42 U.S.C. § 1983, and Texas state law.

Trooper Vargas and TDPS moved for summary judgment. The

Trooper claimed, inter alia, entitlement to qualified immunity for

the excessive force claim. Plaintiffs’ motion to dismiss their

state law claims was granted. And, summary judgment was granted

the Trooper and TDPS on all remaining claims except the federal

excessive force claim.

On an interlocutory appeal by Trooper Vargas, based on his

qualified immunity claim, from the summary judgment denial for the

excessive force claim, our court stated: the lack of specificity

in the district court’s order made it unclear whether our court had

jurisdiction over the appeal; and the record did not include a

statement by the district court of its reasons for denying

qualified immunity. Our court remanded with instructions that the

district court either identify which portion of the transcript

contained those reasons or, by supplemental order, state “the

factual scenario that it assumed in construing the summary judgment

in the light most favorable to” Plaintiffs. Bazan v. Hidalgo

11
County, No. 97-41463, slip op. at 2 (5th Cir. 11 Mar. 1999)

(unpublished).

On remand, the district court, by minute entry, stated that,

at the summary judgment hearing, it had “[found] that in applying

summary judgment standards under the totality of the circumstances

in relationship to the alleged incident, there was a fact issue as

to whether Defendant Raul Vargas was entitled to qualified immunity

on the excessive force claim[]”, and it cited the transcript of

that hearing. There, as discussed in detail infra, the district

judge concluded: Plaintiffs raised issues regarding what happened

at the vehicle; what occurred in the field was undisputed simply

because no one else was present; and, based on the entire incident,

a jury should consider what occurred. In other words, the

transcript reflects that the district court concluded material

facts were genuinely disputed.

II.

Trooper Vargas maintains: we have jurisdiction over this

interlocutory appeal; and he is entitled to summary judgment on the

basis of qualified immunity. Among other things, he asserts

material facts are not disputed.

Concerning the summary judgment record, the Trooper contends

the district court erred in accepting affidavits by Victor Bazan

and Salinas; he claims they contradict, rather than supplement,

their earlier depositions. See, e.g., S.W.S. Erectors, Inc. v.

12
Infax, Inc., 72 F.3d 489, 495-96 (5th Cir. 1996) (“When an

affidavit merely supplements rather than contradicts prior

deposition testimony, the court may consider the affidavit when

evaluating genuine issues in a motion for summary judgment.”

(emphasis added)). We need not reach this issue; even aside from

the contested affidavits, facts the district court concluded are

genuinely disputed are also material.

“[A]ll claims that law enforcement officers have used

excessive force — deadly or not — in the course of an arrest,

investigatory stop, or other ‘seizure’ of a free citizen should be

analyzed under the Fourth Amendment and its ‘reasonableness’

standard”. Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in

original).

It is clearly established law in this circuit
that in order to state a claim for excessive
force in violation of the Constitution, a
plaintiff must allege (1) an injury, which (2)
resulted directly and only from the use of
force that was clearly excessive to the need;
and the excessiveness of which was (3)
objectively unreasonable.

Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996) (internal

quotation marks, citation, and footnotes omitted). Deadly force is

a subset of excessive force, Gutierrez v. City of San Antonio, 139

F.3d 441, 446 (1998); deadly force violates the Fourth Amendment

unless “the officer has probable cause to believe that the suspect

poses a threat of serious physical harm, either to the officer or

13
to others”, Tennessee v. Garner, 471 U.S. 1, 11 (1985).

Qualified immunity protects government officials performing

discretionary functions from civil damages liability if their

actions were objectively reasonable in the light of then clearly

established law. E.g., Anderson v. Creighton, 483 U.S. 635, 638

(1987); Glenn v. City of Tyler, No. 00-40133, 2001 WL 102270, *4

(5th Cir. 22 Feb. 2001); Fraire v. City of Arlington, 957 F.2d

1268, 1273 (5th Cir.), cert. denied, 506 U.S. 973 (1992). “This

means that even law enforcement officials who reasonably but

mistakenly commit a constitutional violation are entitled to

immunity.” Glenn, 2001 WL 102270, at *4 (internal quotation marks

and brackets omitted). Such immunity strikes a balance between two

conflicting concerns:

[On the one hand, w]hen government officials
abuse their offices, action[s] for damages may
offer the only realistic avenue for
vindication of constitutional guarantees. On
the other hand, permitting damages suits
against government officials can entail
substantial social costs, including the risk
that fear of personal monetary liability and
harassing litigation will unduly inhibit
officials in the discharge of their duties.

Anderson, 483 U.S. at 638 (internal quotation marks and citation

omitted; all but initial brackets in original); see, e.g.,

Richardson v. McKnight, 521 U.S. 399, 408 (1997); Harlow v.

Fitzgerald, 457 U.S. 800, 816 (1982). “[E]ven such pretrial

matters as discovery are to be avoided if possible, as [i]nquiries

14
of this kind can be peculiarly disruptive of effective government”.

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (internal quotation

marks and citation omitted; all but initial brackets in original);

cf. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (noting importance

of deciding qualified immunity as early as possible).

Obviously, the salutary purposes served by qualified immunity

can be greatly enhanced by summary judgment, which can serve to

promptly end litigation. See FED. R. CIV. P. 56 advisory

committee’s note (1937) (“Summary judgment procedure is a method

for promptly disposing of actions in which there is no genuine

issue as to any material fact.” (emphasis added)); Celotex Corp. v.

Catrett, 477 U.S. 317, 327 (1986) (“Summary judgment procedure is

... an integral part of the Federal Rules ..., which are designed

to secure the just, speedy and inexpensive determination of every

action.” (emphasis added; internal quotation marks omitted)).

However, if entitlement to qualified immunity at the summary

judgment stage is denied but later, at trial, the official is found

so entitled, or even if summary judgment on that basis is granted,

but only after lengthy discovery, then obviously, one of the

primary functions of qualified immunity is lost.

Summary judgment decisions are reviewed de novo, applying the

same test as does the district court. E.g., Skotak v. Tenneco

Resins, Inc., 953 F.2d 909, 912 (5th Cir.), cert. denied, 506 U.S.

832 (1992). Such judgment under Federal Rule of Civil Procedure 56

15
is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law”. FED. R. CIV. P. 56(c) (emphasis added).

An issue is “genuine” if it is real and substantial, as

opposed to merely formal, pretended, or a sham. See Wilkinson v.

Powell, 149 F.2d 335, 337 (5th Cir. 1945) (“The very object of a

motion for summary judgment is to separate what is formal or

pretended in denial or averment from what is genuine and

substantial, so that only the latter may subject a suitor to the

burden of a trial.” (emphasis added; footnote omitted)); see also

Bryant v. Kentucky, 490 F.2d 1273, 1275 (6th Cir. 1974) (“The

objective is to separate the sham and insubstantial from the real

and genuine issues of fact.” (emphasis added)).

A fact is “material” if it “might affect the outcome of the

suit under the governing law”. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986) (emphasis added); see International

Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264 (5th Cir.

1991) (“[F]actual disputes over issues not germane to the claim are

simply irrelevant because they are not outcome determinative. The

court may grant a [summary judgment] motion, immaterial facts

16
notwithstanding”. (emphasis added)), cert. denied, 502 U.S. 1059

(1992).

“The movant has the burden of showing that there is no genuine

issue of [material] fact.” Liberty Lobby, 477 U.S. at 256

(emphasis added); see Celotex, 477 U.S. at 325 (“[T]he burden on

the moving party may be discharged by ‘showing’ — that is, pointing

out to the district court — that there is an absence of evidence to

support the nonmoving party’s case”). However,

the plaintiff is not thereby relieved of his
own burden of producing in turn evidence that
would support a jury verdict. Rule 56(e)
itself provides that a party opposing a
properly supported motion for summary judgment
may not rest upon mere allegation or denials
of his pleading, but must set forth specific
facts showing that there is a genuine issue
for trial.

Liberty Lobby, 477 U.S. at 256 (emphasis added).

The movant has the initial burden of
demonstrating the absence of a material fact
issue. If it satisfies that burden, the non-
movant must identify specific evidence in the
summary judgment record demonstrating that
there is a material fact issue concerning the
essential elements of its case for which it
will bear the burden of proof at trial.

Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.) (citation omitted),

cert. denied, 513 U.S. 871 (1994). Of course, the summary judgment

record/evidence is viewed in the light most favorable to the

nonmovant, with all factual inferences made in the nonmovant’s

17
favor. See, e.g., Behrens v. Pelletier, 516 U.S. 299, 309 (1996);

Liberty Lobby, 477 U.S. at 255.

Along this line, the burden of proof for qualified immunity —

including for summary judgment purposes — shifts.

The defendant official must initially plead
his good faith and establish that he was
acting within the scope of his discretionary
authority. Once the defendant has done so,
the burden shifts to the plaintiff to rebut
this defense by establishing that the
official’s allegedly wrongful conduct violated
clearly established law.

Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992) (citations

omitted); see, e.g., Pierce v. Smith, 117 F.3d 866, 872 (5th Cir.

1997) (“We do not require that an official demonstrate that he did

not violate clearly established federal rights; our precedent

places that burden upon plaintiffs.” (emphasis added; internal

quotation marks omitted)).

Pursuant to the foregoing, because Trooper Vargas pleaded

qualified immunity as an affirmative defense, the burden of

negating the defense lies with Plaintiffs. Again, they cannot rest

on the pleadings; instead, they must show genuine issues of

material fact concerning the reasonableness of Trooper Vargas’

conduct.

The procedure for evaluating qualified immunity is well-known.

The first step is to determine whether plaintiff alleged a

violation of a clearly established constitutional right. E.g.,

18
Glenn, 2001 WL 102270, at *4; Harper v. Harris County, 21 F.3d 597,

600 (5th Cir. 1994). The parties do not dispute this prong; as

noted supra, “apprehension by the use of deadly force is a seizure

subject to the reasonableness requirement of the Fourth Amendment”.

Garner, 471 U.S. at 7.

The second step requires determining whether, as discussed

supra, the official’s conduct was objectively reasonable under

clearly established law existing at the time of the incident.

E.g., Glenn, 2001 WL 102270, at *4; Harper, 21 F.3d at 600; cf.

Graham, 490 U.S. at 397 (“the ‘reasonableness’ inquiry in an

excessive force case is an objective one” (emphasis added)). Of

course, on summary judgment, the objective reasonableness inquiry

is a question of law; in other words, this question of law cannot

be decided if there are genuine issues of material fact. Pierce,

117 F.3d at 871; see FED. R. CIV. P. 56(c).

The controlling jurisdictional rule for this interlocutory

appeal comports with this: “A denial of [a motion for summary

judgment based on] qualified immunity is immediately appealable

under the collateral order doctrine, when based on an issue of

law”. Rodriguez v. Neely, 169 F.3d 220, 222 (5th Cir. 1999)

(emphasis added); see Glenn, 2001 WL 102270, at *3 (“This court has

jurisdiction to review the district court’s decision to the extent

that it turns on an issue of law.” (emphasis added)). Accordingly,

19
we have jurisdiction for this interlocutory appeal if it challenges

the materiality of factual issues, but lack jurisdiction if it

challenges the district court’s genuineness ruling — that genuine

issues exist concerning material facts. See Glenn, 2001 WL 102270,

at *3; White v. Balderama, 153 F.3d 237, 240 (5th Cir. 1998).

Colston v. Barnhart aptly states this firmly established rule

for such interlocutory appeals:

Johnson [v. Jones, 515 U.S. 304 (1995),]
makes clear that an appellate court may not
review a district court’s determination that
the issues of fact in question are genuine....
Behrens, on the other hand, makes clear that
an appellate court is free to review a
district court’s determination that the issues
of fact in question are material.

146 F.3d 282, 284 (5th Cir. 1998) (emphasis added), denying reh’g

in 130 F.3d 96 (5th Cir. 1997); see Johnson, 515 U.S. at 313-18

(discussing factors — such as delay, lack of finality, and

comparative expertise of trial and appellate judges in ruling on

existence vel non of triable issues of fact — underlying allowance

of interlocutory appeals from immunity-denial only for issues of

law, not for whether genuine issues exist concerning material

facts). It is helpful to retrace the reasons for this

jurisdictional rule.

Johnson held, simply, that determinations of
evidentiary sufficiency at summary judgment
are not immediately appealable merely because
they happen to arise in a qualified-immunity
case; if what is at issue in the sufficiency

20
 determination is nothing more than whether the
evidence could support a finding that
particular conduct occurred, the question
decided is not truly “separable” from the
plaintiff’s claim, and hence there is no
“final decision” under Cohen [v. Beneficial
Industrial Loan Corp., 337 U.S. 541 (1949),]
and Mitchell. Johnson reaffirmed that summary
judgment determinations are appealable when
they resolve a dispute concerning an “abstract
issue of law” relating to qualified immunity,
typically, the issue whether the federal right
allegedly infringed was “clearly established”.

Behrens, 516 U.S. at 313 (“are” emphasized in original; citations

and brackets omitted). Therefore, in general, “we adopt the

district court’s articulation of genuinely disputed facts when

determining whether these disputes are material to a finding of

qualified immunity”. Lemoine v. New Horizons Ranch & Center, Inc.,

174 F.3d 629, 634 (5th Cir. 1999) (emphasis added).

Trooper Vargas asserts that the denial of summary judgment is

immediately appealable; in his view, although some immaterial facts

are admittedly disputed, all material facts are undisputed. Bazan

responds material facts are genuinely at issue.

In essence, the district judge found genuine issues of

material fact as to the events in the field, both because the

Trooper was the sole surviving witness for his use of deadly force

and also because of questions arising from the varied testimony as

to what occurred shortly before at the vehicle. Relevant excerpts

from the summary judgment hearing follow.

21
 THE COURT: [Plaintiffs] create[] possibly a
fact issue here when you consider the whole
situation before [the shooting].

DEFENDANT’S COUNSEL: Your Honor, ... the
evidence as to what occurred ... immediately
prior to the shooting [in the field] is
undisputed....

THE COURT: Well, it’s undisputed because there
was nobody else physically present except the
[Trooper].

...

THE COURT: And [Trooper] Vargas’s actions in
his mind had to go back from the very start
[of the confrontation at the vehicle]. He
didn’t — couldn’t have made the decision to
shoot this person just with what was going on
right there [in the field]. He had a whole
history of what had gone on and — and this
man’s behavior. And I’m not saying [Trooper]
Vargas isn’t telling the truth. I’m not
saying that. But the whole scenario becomes
important as to what’s in your mind when you
decide to take out your gun and shoot somebody
as to what his behavior has been during this
limited period of time that you’ve had with
him here.

...

THE COURT: Based on the whole incident I think
a jury has to decide if this is the way this
occurred, if there is a fact issue as to what
occurred here and how it occurred here....

...

THE COURT: [T]hat fact issue even becomes more
apparent when the only witness is somebody
who’s had [an interest in the outcome] — and,
granted, they’re interested witnesses, too, on
[Plaintiffs’] side. But that’s why we have a
jury.

(Emphasis added.)

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 In short, in stating that “a jury has to decide if this is the

way this occurred”, the district judge concluded that the Trooper’s

credibility was at issue and thus that a real — genuine — dispute

existed as to material facts — what occurred in the field, when

deadly force was employed. This is consistent with the Supreme

Court’s recent statement that, in deciding whether to grant

judgment as a matter of law, a “court should give credence to the

evidence favoring the nonmovant as well as that evidence supporting

the moving party that is uncontradicted and unimpeached, at least

to the extent that that evidence comes from disinterested

witnesses”. Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S.

133, 151 (2000) (emphasis added; internal quotation marks omitted).

(Although the Court so stated in the context of a Rule 50 motion

(judgment as a matter of law), it pointed out “the analogous

context of summary judgment under Rule 56”. Id. at 150.) In the

case at hand, the evidence the Trooper claims is uncontradicted and

unimpeached comes for the most part, if not exclusively, from an

interested witness — Trooper Vargas. Cf. Abraham v. Raso, 183 F.3d

279, 287 (3d Cir. 1999) (“Cases that turn crucially on the

credibility of witnesses’ testimony in particular should not be

resolved on summary judgment.” (emphasis added)); Gooden v. Howard

County, Md., 954 F.2d 960, 971 (4th Cir. 1992) (Phillips, J.,

dissenting) (“[B]ecause inevitably — liability being disputed — the

23
officer’s account will be favorable to himself, the credibility of

that account is crucial.”).

Again, as explained in Garner, 471 U.S. at 11, use of deadly

force for an arrest violates the Fourth Amendment unless “the

officer has probable cause to believe that the suspect poses a

threat of serious physical harm, either to the officer or to

others”. Accordingly, deciding what occurred when deadly force was

employed obviously will control whether the Trooper’s conduct was

objectively reasonable; therefore, those facts are material.

Trooper Vargas’ appellate brief repeatedly states Plaintiffs

do not dispute material fact issues, such as Bazan’s choking the

Trooper, biting his fingers, and hitting him on the head with the

Trooper’s flashlight. In support of this position, he references

dicta from an opinion by the Seventh Circuit, Plakas v. Drinski, 19

F.3d 1143, 1147 (7th Cir.) (emphasis added) (two officers witnessed

use of deadly force), cert. denied, 513 U.S. 820 (1994):

The award of summary judgment to the defense
in deadly force cases may be made only with
particular care where the officer defendant is
the only witness left alive to testify. In
any self-defense case, a defendant knows that
the only person likely to contradict him or
her is beyond reach. So a court must
undertake a fairly critical assessment of the
forensic evidence, the officer’s original
reports or statements and the opinions of
experts to decide whether the officer’s
testimony could reasonably be rejected at a
trial.

24
 As stated, for the case at hand, the district court concluded

that material facts are genuinely disputed. No doubt, it reached

that conclusion in large part because little evidence corroborating

the Trooper’s version exists. For example, although Flores

commented that the Trooper said his hand was injured, there is no

testimony as to treatment the Trooper received for a bite wound, or

as to the teeth marks that probably would have been imprinted on

his hand if Bazan were biting so hard the Trooper thought he would

lose his fingers. Deputy Quintanilha remarked the Trooper was

breathing heavily; but, there is no evidence of a violent scuffle

in the field. Likewise, there is no evidence of head wounds to the

Trooper or of his blood on his flashlight. And, although Bazan’s

autopsy reflects a gunshot wound to the right side of the base of

the neck, a right lung upper lobe contusion and hematoma, along

with a heart contusion, no expert testimony links this with the

Trooper’s recitation of the facts or opines on the distance or

angle from which the shot was fired. The opinion of the Trooper’s

expert that the Trooper acted reasonably suffers from the same

defects as Trooper Vargas’ testimony, because that expert had only

the Trooper’s testimony on which to base his opinion. Therefore,

contrary to the assertion by Trooper Vargas, the case at hand is

not analogous to the Plakas dicta; there is neither the forensic

evidence nor expert opinions with which to compare the Trooper’s

testimony.

25
 The excessive force inquiry is confined to whether the Trooper

was in danger at the moment of the threat that resulted in the

Trooper’s shooting Bazan. See Fraire, 957 F.2d at 1276

(“[R]egardless of what had transpired up until the shooting itself,

[the suspect’s] movements gave the officer reason to believe, at

that moment, that there was a threat of physical harm.” (citing

Young v. City of Killeen, 775 F.2d 1349, 1353 (5th Cir. 1985)

(finding no liability where “only fault found against [the officer]

was his negligence in creating a situation where the danger of such

a mistake would exist”)). Nevertheless, as the district court

concluded, the events at the vehicle, in part, set the stage for

what followed in the field.

Although the depositions of Salinas, Victor Bazan, and Trooper

Vargas, along with the Trooper’s affidavit, are essentially in

agreement, discrepancies exist in details and in characterization.

For example, in his deposition, Victor Bazan questioned whether it

was reasonable for the Trooper to order Bazan to lie on the ground,

and both he and Salinas recalled Bazan’s showing the Trooper he was

unarmed. Furthermore, in his deposition, Victor Bazan contemplated

the words “push” and “kick”; Salinas, in his deposition, referred

to both “push” and “hit”; and Trooper Vargas himself testified

that, when he “pushed back” Bazan, Bazan asked why the Trooper had

“kicked” him.

26
 In short, such contrasting characterizations could affect the

outcome of the case; therefore, they are also material. Again, as

to these material facts, the district court concluded there is a

genuine dispute.

We emphasize the narrow factual situation which this case

addresses – one in which the sole surviving witness to the central

events is the defendant himself, an interested witness. Obviously,

summary judgment vel non for a case of this type turns on the

summary judgment record. And, based on this summary judgment

record, the district court concluded genuine issues exist as to

material facts. Again, that genuineness conclusion is not

reviewable on interlocutory appeal from a summary judgment denial

of qualified immunity; only issues of law are.

III.

For the foregoing reasons, because the district court

concluded that the events that occurred in the field are genuinely

disputed, in the light of both the Trooper’s being the sole

surviving witness and the evidence regarding events at the vehicle,

and because these factual issues control the outcome of the case

(are material), we lack jurisdiction to consider the propriety of

the summary judgment denial.

DISMISSED

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