United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 9, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 06-30019
_______________________
CHIARRA CARRIERE BACQUE, INDIVIDUALLY AND ON BEHALF OF
KARTER BACQUE, ON BEHALF OF KASE BACQUE,
ON BEHALF OF LINSEY BACQUE,
Plaintiff-Appellee,
versus
CHAD LEGER, ETC; ET AL.,
Defendants;
CHAD LEGER, IN HIS OFFICIAL CAPACITY AS
CHIEF OF POLICE; CITY OF SCOTT, ON BEHALF OF
POLICE DEPARTMENT CITY OF SCOTT;
BYRON ROMERO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
DAVID SONNIER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY,
Defendant-Appellants.
Appeal from the United States District Court
Western District of Louisiana
No. 6:04-CV-1427
Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.
EDITH H. JONES, Chief Judge:*
This court has carefully considered the appeal of
Officers Sonnier and Romero, which asserts that the district court
erred in denying qualified immunity from § 1983 liability for the
events that led to the death of suspect Ken Bacque.
*
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opinion should not be published and is not precedent except under the limited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.
This court has interlocutory jurisdiction over issues of
law related to qualified immunity. Atteberry v. Nocona Gen. Hosp.,
430 F.3d 245, 251 (5th Cir. 2005) (citing Behrens v. Pelletier,
516 U.S. 299, 311, 116 S. Ct. 834, 841 (1996)). If the appeal
turns, however, on disputed material issues of fact, we lack
jurisdiction. Johnson v. Johnson, 385 F.3d 503, 523 (5th Cir.
2004). In this case, the issues subject to appeal are, first, the
materiality of fact disputes, and second, the objective reason-
ableness of the officers’ conduct. Because the officers properly
supported their motion for summary judgment on qualified immunity,
the Plaintiffs bore the burden of negating the defense. Johnson v.
Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293,
300 (5th Cir. 2004). Consequently, Plaintiffs were required to
demonstrate genuine issues of material fact that, if believed,
established that the officers used deadly force clearly excessive
to the need to restrain Ken Bacque. See Tennessee v. Garner, 471
U.S. 1, 105 S. Ct. 1694, (1985) (use of deadly force not excessive
if officer reasonably believed the suspect posed a threat to
others). To rebut the officers’ claim of qualified immunity,
Plaintiffs were further required to demonstrate that the illegality
of the officers’ conduct was plain, such that it was objectively
unreasonable, under the facts and circumstances confronting them,
for the officers to have used deadly force. Ikerd v. Blair, 101
F.3d 430, 433 (5th Cir. 1996) (citing Graham v. Connor, 490 U.S.
386, 395, 109 S. Ct. 1865, 1871 (1989)).
2
Having reviewed the parties’ contentions in light of
these standards, we conclude that Plaintiffs have not overcome
Officer Sonnier’s assertion of qualified immunity. No material
facts are in dispute. The only relevant fact to this inquiry is
that Officer Sonnier “froze” during the confrontation with Ken
Bacque. There are neither allegations nor evidence that Sonnier
exerted any force, much less excessive force, against Ken Bacque.
Plaintiffs have cited no authorities, and we are aware of none,
where an officer’s inaction during a police-suspect confrontation
resulted in his liability for use of excessive force. The district
court erred in denying immunity to Officer Sonnier.
As for Officer Romero, however, it appears that the facts
surrounding his shooting of Ken Bacque are highly controverted.
There is evidence, if believed, that Officer Romero shot Ken Bacque
while he stood motionless with his knife at his side and had ceased
to menace anyone; that Officer Romero stood at least ten to forty
feet away from Ken Bacque; that Ken Bacque was not threatening
anyone at this time; that no officer warned Ken Bacque to drop his
knife; and that Ken Bacque no longer posed a physical threat to
Officer Romero, or to anyone else at the time he was shot. Because
material facts surrounding the shooting are in dispute, we lack
jurisdiction over Romero’s appeal and cannot conclude as a matter
of law that he did not violate Bacque’s Fourth Amendment rights or
that he is entitled to qualified immunity.
3
Each qualified immunity case must be analyzed according
to its peculiar facts. Consequently, the cases cited on behalf of
Officer Romero are of little assistance here, principally because
the suspects in those cases were charging toward or fighting with
the officers and the suspects possessed or were thought to possess
guns.
For the foregoing reasons, the judgment denying qualified
immunity to Officer Sonnier is REVERSED; the appeal of Officer
Romero is DISMISSED. This matter is REMANDED for further
proceedings as appropriate.
REVERSED in part, DISMISSED in part, and REMANDED.
4