United States Court of Appeals
Fifth Circuit
UNITED STATES COURT OF APPEALS FILED
FOR THE FIFTH CIRCUIT April 2, 2007
Charles R. Fulbruge III
Clerk
No. 05-20764
STENNIE MEADOURS, Individually and as Personal
Representative of the Estate of Robert Meadours; BRUCE
MEADOURS, Individually and as Personal Representative
of the Estate of Robert Meadours; and KATIE RATERINK,
Plaintiffs-Appellees,
versus
STEVEN R. ERMEL, et al,
Defendants,
STEVEN R. ERMEL; JEFFREY DALTON; JEFFREY N. KOMINEK;
STEVEN M. MARTIN,
Defendants-Appellants.
Appeal from the United States District Court
For the Southern District of Texas
Before REAVLEY, DeMOSS, and BENAVIDES, Circuit Judges.
DeMOSS, Circuit Judge:
The Defendants-Appellants, four City of La Porte,
Texas police officers (collectively, “the officers”),
shot and killed Bob Meadours in October 2001. Meadours’
estate, his parents, and sister (collectively,
“Plaintiffs” or “Appellees”) brought a claim under 42
U.S.C. § 1983 asserting that the officers used excessive
force. They also brought state law tort claims. The
officers moved for summary judgment on the basis of
qualified immunity and also official immunity under Texas
law, but the district court denied the motion citing the
existence of genuine issues of material fact. Because we
lack jurisdiction to review the finding that genuine
factual issues exist, and we agree with the district
court that the factual disputes are material, we affirm.
I. BACKGROUND AND FACTS
On the evening of October 29, 2001, Meadours’ sister,
Katie Raterink, contacted 911 to request mental health
assistance for Meadours. Meadours’ mental state had
steadily deteriorated following the September 11, 2001
attacks, and for the week prior to the call he was having
what Raterink described as a “mental episode.” During
that episode Meadours was paranoid and delusional and
thought his neighbors were “out to get him.” In the days
and hours leading up to Raterink’s 911 call, Meadours’
2
behavior had become increasingly bizarre, and Meadours
believed that if his feet touched the ground while the
sun was out, he would die.
In her call Raterink made it clear she was seeking
mental health assistance for her brother and not
reporting a crime. However, Raterink did inform the
dispatcher that Meadours had “flipped out” and she did
not know what he was going to do.
City of La Porte police officers Dalton and Martin,
along with one EMS unit, were dispatched. Officer Kominek
and Sergeant Ermel also responded. The officers and the
EMS unit contacted Raterink at the edge of Meadours’
neighborhood and talked with her for seven to eight
minutes. During that conversation Raterink informed the
officers about some of Meadours’ paranoid and delusional
behavior and she requested that he be taken for
treatment. She also warned the officers that Meadours was
a large and strong man (he was 6 feet 2 inches and
weighed 203 pounds), that he possessed a number of tools
that could be used as weapons, and that Meadours feared
3
the possibility of being involuntarily hospitalized.1 In
her deposition Raterink stated that she informed the
officers of Meadours’ size only so they would not be
surprised by his large frame and hurt him.
After the officers spoke with Raterink, they decided
to contact Meadours and secure the scene prior to the EMS
approaching him. As the officers neared the house, the
interior and exterior house lights turned off, making the
area very dark. Two officers--Dalton and Martin--
approached the front door while Officer Kominek walked
around the side of the house to the backyard.
As Officer Kominek entered the backyard he observed
Meadours sitting in a swing wearing between four and six
baseball caps and a tool belt with a stuffed animal
attached to it. Kominek claims he stated “Hello, Bob,
Police Department.” Shortly thereafter, Meadours stood up
and Kominek stated he could see that Meadours was holding
a large screwdriver, later identified as being 10 3/4
1
In 1988 Meadours spent time in a secure mental hospital in
Lafayette, Louisiana. According to Raterink, Meadours did not
like being held in the hospital and involuntarily medicated. This
prior experience, coupled with his paranoia, apparently made
Meadours extremely reluctant to seek help for his problems.
4
inches long. At this point Officers Martin and Dalton
joined Kominek in the backyard. The officers claim they
repeatedly commanded Meadours to drop the screwdriver.
Meadours refused and Officer Martin radioed Sergeant
Ermel (who was still in front of the house) to join them
and bring a beanbag shotgun.
Ermel entered the backyard and observed Meadours with
the screwdriver. The officers claim Meadours’ behavior
became increasingly aggressive and he began kicking
something attached to the ground. The officers have since
stated that based on Meadours’ behavior, they felt that
Meadours was a threat to himself and others, and that the
officers could not simply leave or allow Meadours to
leave. After Meadours again refused to drop his weapon,
Ermel claims he instructed two officers to prepare to
subdue Meadours and one officer to cover him as he fired
the beanbag shotgun. Ermel then fired one beanbag round
that struck Meadours in the upper thigh area.
In response, Meadours ran and jumped over a fence
into a dog pen and climbed atop a doghouse, retaining
possession of the screwdriver. Officers Dalton, Martin,
5
and Kominek followed Meadours into the pen. The officers
again ordered Meadours to drop his weapon, and he again
refused. Ermel shot Meadours with a second beanbag round,
but Meadours remained atop the doghouse with the
screwdriver.
Ermel fired a third beanbag round that the officers
claim knocked Meadours off the doghouse. On this point
there is significant disagreement, as the Plaintiffs
claim that it was bullet, not a beanbag round, that
knocked Meadours from the doghouse.2 After falling/jumping
from the doghouse, Meadours began to run toward a door
leading to the garage with the screwdriver held in what
the officers describe as a “stabbing grip.” According to
the officers, Kominek was standing near that door and
they felt that Meadours was charging at Kominek with the
screwdriver. Responding to the perceived threat, officers
Dalton, Kominek, and Martin stated they repeatedly fired
their service weapons, each a different caliber, killing
Meadours. A total of twenty-three shots were fired, with
2
The Plaintiffs presented expert testimony that a bullet
entered Meadours’ thigh at an upward angle, indicating that
Meadours was shot while on top of the doghouse.
6
fourteen striking Meadours, although the shooting only
lasted a few seconds.
The Plaintiffs brought a 42 U.S.C. § 1983 claim
against the City of La Porte and the officers, alleging
that the officers violated Meadours’ constitutional
rights by subjecting him to excessive force. The
Plaintiffs also brought state law claims against the
officers for gross negligence, assault and battery, and
intentional infliction of emotional distress.
Additionally, Raterink brought a claim for bystander
recovery.
After extensive discovery all defendants moved for
summary judgment. The district court granted the City of
La Porte’s motion, and it is not a party to this appeal.
See Meadours v. Ermel, No. H-04-102, 2005 WL 1923596, at
*5-*6 (S.D. Tex. Aug. 10, 2005). The court also granted
the officers’ motion with regard to Raterink’s bystander
liability claim and the Appellants have not cross-
appealed that ruling. Id. at *10. The district court
denied summary judgment on qualified immunity grounds
because “there does exist a genuine issue of material
7
fact as to whether the force they utilized” was
unreasonable. Id. at *8. Lastly, the court denied the
officers’ motion for summary judgment on the Plaintiffs’
state law claims. Id. at *9-*10. The officers timely
appealed.
II. Discussion
A. Separate Consideration of Each Officer’s Actions
As a threshold matter, the officers argue that in
determining the applicability of qualified immunity we
should consider the conduct of each officer
independently. The district court, however, analyzed the
officers’ actions collectively, because it found they
acted in unison. Id. at *6. In reaching that result the
district court relied on Jacobs v. West Feliciana
Sheriff’s Department, 228 F.3d 388, 395 (5th Cir. 2000).
In Jacobs, we noted that the defendants did not act in
unison, and held that, “[a]ccordingly . . . we examine
each individual defendant's entitlement to qualified
immunity separately.” 228 F.3d at 395. Relying on this
statement, the district court fashioned a rule that if
defendants act in unison, their conduct should be
8
considered collectively.
The district court’s finding that the officers acted
in unison is a finding of fact that we cannot review at
this stage. See Flores v. City of Palacios, 381 F.3d 391,
394 (5th Cir. 2004). But even accepting that factual
finding, we hold that the district court erred in
considering the officers’ actions collectively.
The district court’s decision to consider the
officers’ actions collectively because it found they
acted in unison extends the holding of Jacobs beyond what
prudence and case law allows. See Stewart v. Murphy, 174
F.3d 530, 537 (5th Cir. 1999) (holding that each
defendant’s actions in a § 1983 case must be considered
individually). Further, we have consistently examined the
actions of defendants individually in the qualified
immunity context. See Hernandez v. Tex. Dep’t of
Protective & Regulatory Servs., 380 F.3d 872, 883-84 (5th
Cir. 2004) (examining the culpability of each defendant
individually to determine if they deprived the plaintiff
of a constitutional right); see also Atteberry v. Nocona
Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005) (same);
9
see also Tarver v. City of Edna, 410 F.3d 745, 752-54
(5th Cir. 2005) (examining the conduct of two officers
independently and finding that one was entitled to
qualified immunity while the other was not).
Additionally, we have found no sound reason to extend
Jacobs. The relevant part of Jacobs itself cites only the
decision in Stewart, and that case makes only the blanket
statement that “each defendant's subjective . . .
[actions] must be examined separately” and does not
contemplate an exception for defendants acting in unison.
Stewart, 174 F.3d at 537.3
The district court erred in considering the officers’
actions together, and we instruct the court to consider
the officers actions separately on remand.4
B. Qualified Immunity
3
Further, no interest is harmed by considering the officers’
actions separately. Separate consideration does not require
courts to conduct a separate analysis for each officer in those
cases where their actions are materially indistinguishable, it
merely requires them to consider each officer’s actions.
4
Contrary to Plaintiffs’ contention, this argument is not
waived. The officers have consistently urged the district court
to consider their claims for qualified immunity individually. The
district court’s opinion illustrates as much because it expressly
denies the officers’ request to be considered separately. See
Meadours, 2005 WL 1923596, at *6.
10
The denial of a motion for summary judgment based on
qualified immunity is reviewable through an interlocutory
appeal. See Mitchell v. Forsyth, 472 U.S. 511, 530
(1985). However, we only have jurisdiction to review
questions of law. Id. “[W]e are restricted to
determinations of questions of law and legal issues, and
we do not consider the correctness of the plaintiff's
version of the facts.” Atteberry v. Nocona Gen. Hosp.,
430 F.3d 245, 251-52 (5th Cir. 2005) (internal quotation
marks omitted).
As a result, we cannot review the district court's
determination that genuine issues of fact exist about
what happened. See Kinney v. Weaver, 367 F.3d 337, 346-47
(5th Cir. 2004) (en banc). In other words, we may only
review the district court's conclusion that issues of
fact are material (a legal question), but we may not
review the conclusion that those issues of fact are
genuine (a fact question). See Flores, 381 F.3d at 394.
The district court concluded that genuine issues of
material fact exist regarding the reasonableness of the
force used by the officers, and we lack jurisdiction to
11
review whether the those issues of fact are genuine. See
id. We may only review whether the disputed issues are
material to the qualified immunity analysis. See id. We
review this legal question de novo. See Attebery, 430
F.3d at 252.
The doctrine of qualified immunity shields government
officials performing discretionary functions from civil
liability "‘insofar as their conduct does not violate
clearly established . . . constitutional rights of which
a reasonable person would have known.’" Flores, 381 F.3d
at 393-94 (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)).
A two-step analysis applies to reviewing a motion for
summary judgment based on qualified immunity. Id. at 395.
First, we determine whether a constitutional right has
been violated based on the facts Plaintiffs have alleged.
See id.; see also Sacier v. Katz, 533 U.S. 194, 200
(2001). Second, we determine whether the officers'
conduct was objectively reasonable in light of "clearly
established" law at the time of the alleged violation.
Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th
12
Cir. 2000).
Regarding the first prong, Plaintiffs allege that the
officers violated Meadours’ Fourth Amendment right to be
free from excessive force. An excessive force claim
requires Plaintiffs to show, inter alia, that use of
excessive force was objectively unreasonable. Id. at 740.
“To gaug[e] the objective reasonableness of the force
used by a law enforcement officer, we must balance the
amount of force used against the need for force. This
balancing test requires careful attention to the facts .
. . .” Flores, 381 F.3d at 399 (alteration in original)
(citation and internal quotation marks omitted). In order
to determine reasonableness in the case at bar, several
key factual disputes must be resolved--for example,
whether Meadours was first shot while charging at Officer
Kominek or while he was still atop the doghouse, posing
no imminent threat. Given the necessity to determine
these types of facts, this dispute is material to the
outcome of the case and the officers are not entitled to
summary judgment. See id.
Likewise, under the second step, the touchstone is
13
whether the officers’ actions were objectively reasonable
under existing law. As mentioned above, certain factual
disputes must be resolved before we can decide
reasonableness here. See id. Thus, the factual disputes
cited by the district court are material.
In sum, the district court found that issues of fact
exist. The district court found that both sides presented
evidence to support their version of events and thus, the
issues of fact were genuine. While we lack jurisdiction
to review that finding, we may review the district
court’s determination that the factual issues are
material. The question of when and where Meadours was
shot is integral to determining whether the officers’
actions were reasonable, and consequently, we conclude
that the dispute is material.5 Because genuine issues of
5
Of course, if we were able to conclude that the officers’
actions were objectively reasonable even under existing law and
the facts alleged by the Plaintiffs, the dispute would not be
material and they would be entitled to qualified immunity. See
Kinney, 367 F.3d at 357. We cannot find that here. See Tennessee
v. Garner, 471 U.S. 1, 11 (1985) (holding that an officer cannot
use deadly force unless a suspect poses an imminent threat of
serious physical harm). We also note that Meadours was not a
criminal suspect. Although we have not had the occasion to
consider qualified immunity in the context of the police killing
a mentally ill individual, we note that the Ninth Circuit has
held “the governmental interest in using [deadly] force is
14
material fact exist, summary judgment is not appropriate
and we remand for a trial on the merits.6
We express no opinion about the ultimate
reasonableness of the officers’ actions. It is for a jury
to decide the factual disputes, and at this stage we
cannot say the officers are entitled to qualified
immunity. See Kinney, 367 F.3d at 347 n.8 (noting that
because of our limited review in this context “officials
may sometimes be required to proceed to trial even though
the ultimate resolution of th[e] factual disputes may
show that they are entitled to qualified immunity”).
C. State Law Claims
The officers moved for summary judgment on
diminished by the fact that the officers are confronted, not with
a person who has committed a serious crime against others, but
with a mentally ill individual.” Deorle v. Rutherford, 272 F.3d
1272, 1283 (9th Cir. 2001). Further, the City of La Porte’s
policy for using force against a mentally ill individual states
that “[i]f an officer must control and restrain a mentally ill
person, he shall use the least amount of force.”
6
The officers argue that because Sergeant Ermel did not
actually shoot Meadours with a bullet, he should be entitled to
summary judgment on his qualified immunity defense. However, the
district court found that Ermel’s use of the beanbag gun
constituted deadly force, and while we may doubt that conclusion,
it is a finding of fact we cannot review at this stage. See
Flores, 381 F.3d at 399. Because questions of fact exist whether
deadly force was reasonable, Ermel is not entitled to summary
judgment.
15
Plaintiffs' state law claims, arguing that (1) they are
entitled to official immunity under Texas law; (2) the
Texas Civil Practice and Remedies Code bars Plaintiffs'
tort claims; and (3) Raterink could not prove her
bystander claim. The district court granted the motion as
to part three but denied the rest.
The “good faith” test applied by Texas law in
determining official immunity is evaluated under
substantially the same standard used for qualified
immunity determinations in § 1983 actions. See Mowbray v.
Cameron County, 274 F.3d 269, 280 (5th Cir. 2001); see
also City of Lancaster v. Chambers, 883 S.W.2d 650, 656
(Tex. 1994) (equating the good faith test to a test of
objective legal reasonableness). But see Hernandez v.
Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d
872, 883-84 (5th Cir. 2004) (highlighting minor
differences between the two standards). Any difference
between the qualified immunity standard and the official
immunity standard is immaterial here, and we reach the
same result on this claim as we do on the § 1983 claim:
the officers are not entitled to summary judgment.
16
Furthermore, we find that Texas Civil Practice and
Remedies Code § 101.106(a) does not bar Plaintiffs’ suit
in this case.7 That statute, barring suits against
governmental employees if plaintiffs bring suit against
the governmental unit, does not apply to intentional
torts. See TEX. CIV. PRAC. & REM. CODE § 101.057(2)
(excluding from the entire chapter claims “arising out of
assault, battery, false imprisonment, or any other
intentional tort”).
We recognize that some Texas courts have extended
section 101.106 to include intentional torts, relying on
the fact that the Texas Supreme Court, albeit without
discussion, applied section 101.106 to an intentional
tort in Newman v. Obersteller, 960 S.W.2d 621, 622-23
(Tex. 1997). However, Newman stands for the proposition
that section 101.106 is an immunity statute, and not a
bar. See 960 S.W.2d at 622-23. The Court held the “bars
7
That section reads: “The filing of a suit under this
chapter against a governmental unit constitutes an irrevocable
election by the plaintiff and immediately and forever bars any
suit or recovery by the plaintiff against any individual employee
of the governmental unit regarding the same subject matter.”
TEXAS CIV. PRAC. & REM. CODE § 101.106(a).
17
any action” language of the former version of section
101.106 “is an unequivocal grant of immunity in this
context.” Id. at 622. Newman never explicitly held that
section 101.106 should be applicable to intentional
torts. In addition, Newman relied on the language of the
prior version of section 101.106. Given the uncertainty
of Newman’s applicability here, we feel compelled to
follow the plain language of section 101.057(2). Thus,
section 101.106 does not apply to these intentional tort
claims.
III. Conclusion
For the foregoing reasons we affirm the district
court’s order denying summary judgment for the
Defendants, and remand for a trial on the merits.
AFFIRMED.
18