United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 14, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 05-20807
))))))))))))))))))))))))))
JEANETTE GOODMAN, Individually and as administratrix of the
estate of Michael W. Goodman, Deceased
Plaintiff - Appellant - Cross-Appellee
v.
HARRIS COUNTY, ET AL
Defendants
HARRIS COUNTY; ROBERT ECKELS, Harris County Judge; EL FRANCO
LEE, Harris County Commissioner; STEVE RADACK, Harris County
Commissioner; JERRY EVERSOLE, Harris County Commissioner;
SYLVIA GARCIA, Harris County Commissioner; RON HICKMAN,
Harris County Precinct 4 Constable; TERRY ASHABRANNER,
Deputy Constable; DREW CARTER, also known as Andrew Carter
Defendants - Appellees
TERRY ASHABRANNER, Deputy Constable
Defendant - Appellee - Cross-Appellant
Appeal from the United States District Court
for the Southern District of Texas
No. 4:03-CV-4198
Before DAVIS, DENNIS and PRADO, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
This case concerns the fatal shooting of Michael Goodman
(“Goodman”) by Defendant Terry Ashabranner (“Ashabranner”), a
deputy constable in Harris County. Plaintiff Jeanette Goodman
(“Plaintiff” or “Ms. Goodman”), Goodman’s mother and
administratrix of Goodman’s estate, brought numerous claims
against Ashabranner, Harris County, and other Harris County
officials as a result of the shooting. The defendants moved for
summary judgment, and the district court granted their motion in
part, leaving only the excessive force claim against Ashabranner.
Plaintiff and Ashabranner appealed. For the following reasons,
we dismiss both appeals for lack of jurisdiction.
I. FACTUAL BACKGROUND
As an initial matter, we note that this case is unusual in
that there is only one surviving witness to the events at issue--
Ashabranner. As a result and unless noted otherwise, the
following description of facts comes entirely from the affidavit
of Ashabranner.
On the night of April 14, 2002, Ashabranner was on duty as a
K-9 unit in the Precinct 4 Patrol Division. He was driving a
marked patrol vehicle, equipped with overhead blue and red
emergency lights, and was wearing a duty belt and his officer’s
uniform (a polo shirt with a badge embroidered on it). Around
the 13800 block of Kuykendahl Road, Ashabranner passed Goodman,
RULE 47.5.4.
2
who was riding a bicycle on the wrong side of the road. The
bicycle did not have on it the lights required by Texas
Transportation Code § 551.104 for nighttime operation. After
swerving to avoid Goodman, Ashabranner decided to stop Goodman
and warn him that his actions were dangerous.
Ashabranner drove alongside Goodman and tried to get
Goodman’s attention, but Goodman did not respond. So,
Ashabranner pulled over and got out of his car to talk to
Goodman. According to Ashabranner, Goodman got off his bike, but
still made no response and would not make eye contact.
Ashabranner states that he observed “a tool or object of some
type” in Goodman’s right rear pants pocket. Ashabranner believed
the object was metal and that it posed a threat to his safety, so
he decided to frisk Goodman. Goodman then hit or pushed
Ashabranner to the ground, pushed the bicycle through a nearby
barricade, and rode away. Ashabranner yelled at Goodman to stop
and threatened to release his K-9 Nero if he did not stop.
Goodman continued to flee, so Ashabranner released Nero to
apprehend Goodman while Ashabranner followed on foot.
When Ashabranner caught up with them, Goodman was lying in a
puddle of water and was holding Nero’s mouth and nose underwater
while yelling, “I’m gonna kill your dog, I’m gonna kill your
dog!” Ashabranner responded to Goodman that he would call off
Nero if Goodman would release him, but Goodman did not.
Ashabranner knelt down, grabbed Goodman from behind, and pulled
3
back, lifting Nero’s head out of the water. Ashabranner noticed
at this time that Goodman was bleeding, likely from dog bites.
Goodman eventually released Nero. Ashabranner states that
Goodman then pushed him down with his left hand and “reached back
with his right hand and appeared to be drawing or pulling the
weapon or object” that was in his right rear pants pocket.
Believing he was in danger of serious bodily injury or death,
Ashabranner pulled out his own firearm and shot Goodman three
times.
Ashabranner immediately radioed the Precinct 4 dispatcher to
request backup and medical assistance. Ashabranner remained with
Goodman, but did not handcuff him or attempt any first aid.
Deputy Constable Steve Cupit (“Cupit”) arrived shortly
thereafter. He noted that Goodman was attempting to turn on his
left side, at which time Cupit observed a pair of pliers in
Goodman’s right rear pants pocket. Goodman was taken by Life
Flight to a nearby hospital where he was pronounced dead.
Plaintiff disputes Ashabranner’s version of events, although
her ability to do so is limited due to the fact that she was not
present at the shooting. In support of her belief that Goodman
did not pose a serious threat to Ashabranner, she claims that
Goodman had received a gun shot wound to his dominant right arm
less than four months prior to the incident in question and had
almost no use of his right arm. Ms. Goodman claims that her son
was very clumsy as a result of having to use his left arm and
4
certainly could not have overpowered a deputy.
II. PROCEDURAL HISTORY
Ms. Goodman filed suit in Harris County Probate Court #1 on
September 12, 2003, against Harris County; Harris County Judge
Robert Eckels; Harris County Commissioners El Franco Lee, Steve
Radack, Jerry Eversole, and Sylvia Garcia; Constable Ron Hickman;
and Ashabranner (collectively, “Defendants”). The causes of
action included claims of excessive force, failure to train,
illegal arrest, and illegal seizure in violation of the Fourth
and Fourteenth Amendments and brought pursuant to 42 U.S.C.
§ 1983; violations of due process and equal protection under both
the Texas and United States Constitutions; wrongful death and
survival actions brought pursuant to sections 71.002 and 71.021
of the Texas Civil Practice and Remedies Code; and common law
negligence. Defendants removed the case to federal court on
October 7, 2003.
Plaintiff later filed an amended complaint which added as
defendants Texas Ranger Andrew Carter and the Texas Department of
Criminal Justice (“TDCJ”). Plaintiff also added causes of action
under the Texas Tort Claims Act (“TTCA”), TEX. CIV. PRAC. & REM.
CODE ANN. §§ 101.001-.109 (Vernon 1997 & Supp. 2006), against all
Defendants. Carter, the TDCJ, and Plaintiff reached an agreed
stipulation of dismissal with prejudice on October 14, 2004. The
remaining Defendants filed a motion for summary judgment on
5
December 15, 2004, and on August 26, 2005, the district court
granted summary judgment on all claims except for the excessive
force claim against Ashabranner.
Plaintiff filed an appeal on September 9, 2005. While her
notice of appeal was not specific to any particular claim, she
has only briefed before this court (1) the TTCA claim against
Harris County; (2) the failure to train claim against Hickman;
and (3) the failure to provide immediate life-saving care claim
against Ashabranner. Ashabranner cross-appealed the district
court’s decision that he was not entitled to summary judgment on
Plaintiff’s excessive force claim on the basis of qualified
immunity.
III. DISCUSSION
A. Ashabranner’s Appeal
We turn first to Ashabranner’s appeal, in which he asserts
that the district court erred when it denied him summary judgment
on the basis of qualified immunity for Plaintiff’s excessive
force claim. Although interlocutory orders are typically not
immediately appealable, the denial of qualified immunity is
immediately appealable under the collateral order doctrine to the
extent the decision turns on an issue of law. Gobert v.
Caldwell, 463 F.3d 339, 344 (5th Cir. 2006); see also Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985) (classifying the denial of
qualified immunity, to the extent it turns on an issue of law, as
6
a “final judgment” under 28 U.S.C. § 1291).
Our jurisdiction over and scope of review of such appeals is
limited, however, to issues of law. See Gobert, 463 F.3d at 344;
see also Kinney v. Weaver, 367 F.3d 337, 346-47 (5th Cir. 2004)
(en banc). We, therefore, lack jurisdiction to the extent
Ashabranner challenges the district court’s determination that
the fact issues described in the summary judgment order are
genuine. See Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d
481, 490 (5th Cir. 2001); see also Reyes v. City of Richmond, 287
F.3d 346, 351 (5th Cir. 2002). Ashabranner may challenge the
materiality of the fact issues identified by the district court,
but the presence of a genuine issue of material fact precludes us
from exercising jurisdiction. See Glenn v. City of Tyler, 242
F.3d 307, 312 (5th Cir. 2001). Therefore, we must accept
Plaintiff’s version of facts as true and review de novo the
purely legal question of whether the district court erred in
concluding as a matter of law that Ashabranner is not entitled to
qualified immunity on that set of facts. See Gobert, 463 F.3d at
345; see also Reyes, 287 F.3d at 351 (noting that a defendant
challenges materiality when he contends that “taking all the
plaintiff’s factual allegations as true[,] no violation of a
clearly established right [i]s shown.” (internal citations and
quotation marks omitted)).
1. Qualified Immunity
7
Ashabranner has asserted the defense of qualified immunity
to Plaintiff’s claim that he used excessive force when he shot
Goodman. The defense of qualified immunity shields government
officials such as Ashabranner from liability when they are acting
within their discretionary authority and their conduct does not
violate clearly established statutory or constitutional law of
which a reasonable person would have known. Wallace v. County of
Comal, 400 F.3d 284, 289 (5th Cir. 2005). The qualified immunity
analysis is a two-step inquiry. Michalik v. Hermann, 422 F.3d
252, 257 (5th Cir. 2005). First, the court must decide whether
the plaintiff has alleged a violation of a clearly established
constitutional right. Id.; see also Siegert v. Gilley, 500 U.S.
226, 231-32 (1991). A right is clearly established when its
contours are “sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Wooley v.
City of Baton Rouge, 211 F.3d 913, 919 (5th Cir. 2000) (internal
citations and quotation marks omitted). If there is no
constitutional violation, the inquiry ends. Saucier v. Katz, 533
U.S. 194, 201 (2001). If, however, the plaintiff has alleged a
violation of a clearly established right, the court must then
determine whether the defendant’s conduct was objectively
reasonable under the law at the time of the incident. Michalik,
422 F.3d at 258.
In the summary judgment context, a government official need
only plead qualified immunity, which shifts the burden to the
8
plaintiff. Id. at 262. The plaintiff must then rebut the
defense by establishing that the official’s allegedly wrongful
conduct violated clearly established law and that a genuine issue
of material fact exists regarding the reasonableness of the
official’s conduct. Id. We now consider whether the district
court correctly ruled that Plaintiff met this burden.
2. Analysis
Under the first step in the qualified immunity analysis,
Plaintiff must allege that Ashabranner violated a clearly
established constitutional right. Here, Plaintiff has alleged
that Ashabranner violated Goodman’s rights under the Fourth and
Fourteenth Amendments when Ashabranner used excessive force to
apprehend Goodman.
An excessive force claim requires the plaintiff to
demonstrate (1) an injury; (2) resulting directly and only from
the use of force that was excessive to the need; and (3) the
force used was objectively unreasonable. Flores v. City of
Palacios, 381 F.3d 391, 396 (5th Cir. 2004). It is objectively
unreasonable for an officer to use deadly force unless he has
probable cause to believe that the suspect poses a significant
threat of death or serious physical injury to the officer or
others. Id. at 399 (citing Tennessee v. Garner, 471 U.S. 1, 3
(1985)); see also Ballard v. Burton, 444 F.3d 391, 402 (5th Cir.
2006). In this case, Plaintiff claims that Ashabranner’s use of
9
deadly force against Goodman was objectively unreasonable because
Goodman, due to his physical limitations, did not pose a
significant threat of death or serious physical injury, as
claimed by Ashabranner. Plaintiff has, thus, alleged the
violation of a clearly established constitutional right. See
Bazan, 246 F.3d at 490 (finding similar allegations sufficient to
satisfy first step in qualified immunity analysis).
We, therefore, move to the second step in the qualified
immunity analysis, which requires us to determine whether
Ashabranner’s conduct was objectively reasonable under the law
existing at the time. See Michalik, 422 F.3d at 258.
Ashabranner asserts that his conduct was objectively reasonable
because Goodman appeared to pose a significant threat of death or
serious physical injury to Ashabranner when Goodman reached for
the metal object in his back pocket after pushing Ashabranner
down. On appeal, Ashabranner claims that Plaintiff has not
produced any evidence to contradict Ashabranner’s own statement
of the facts leading to the shooting.
As previously noted, this case is somewhat unusual in that
the only surviving witness to the incident in question is
Ashabranner, which makes it difficult for Plaintiff to create a
genuine issue of material fact. This court has, however, dealt
with such a situation before in Bazan ex rel. Bazan v. Hidalgo
County, 246 F.3d 481 (5th Cir. 2001). In Bazan, state trooper
Raul Vargas confronted a car containing Leonel Bazan and several
10
other individuals. Id. at 483. After interacting with Vargas
for several minutes, Bazan fled into a field. Id. at 483-85.
Vargas pursued him, a scuffle ensued, and Vargas shot and killed
Bazan. Id. at 485-86. On appeal, this court affirmed the
district court’s denial of qualified immunity at the summary
judgment stage. In so doing, we noted the lack of forensic
evidence and expert opinions to back up Vargas’s version of
events, such as the lack of evidence that Vargas’s hand was
injured despite his contention that Bazan bit it so hard Vargas
thought he might lose some fingers; the lack of a head wound to
Vargas or blood on his flashlight despite his contention that
Bazan had beaten him about the head with the flashlight; the lack
of evidence of a scuffle in the field; and the lack of expert
testimony regarding the distance and angle of the gunshot. Id.
at 492-93. We also took into account the discrepancies between
Vargas’s description of the events prior to Bazan’s flight and
the descriptions of other witnesses. Id. at 493.
Thus, in Bazan, this court looked to all the surrounding
circumstances to see if they supported the officer’s story.
Other circuits have taken this same approach, examining the
surrounding circumstances and forensic evidence to determine
whether material fact issues exist. See Blossom v. Yarbrough,
429 F.3d 963, 968 (10th Cir. 2005); Hernandez v. Jarman, 340 F.3d
617, 623-24 (8th Cir. 2003); O’Bert ex rel. O’Bert v. Vargo, 331
F.3d 29, 38-40 (2d Cir. 2003); Garvin v. Wheeler, 304 F.3d 628,
11
634 (7th Cir. 2002). As stated by the Second Circuit, in cases
where the officer is the only surviving witness, “the court must
. . . consider circumstantial evidence that, if believed, would
tend to discredit the police officer’s story, and consider
whether this evidence could convince a rational factfinder that
the officer acted unreasonably.” O’Bert, 331 F.3d at 37
(internal citation and quotation marks omitted).
In its opinion below, the district court determined that
there was a genuine issue of material fact as to whether
Ashabranner’s use of deadly force was objectively reasonable.
The district court specifically cited Ms. Goodman’s statements
that Goodman had almost no use of his right arm and was very
clumsy with his left arm. As a result, the district court found
that a fact issue existed as to whether Goodman could have taken
the threatening actions alleged by Ashabranner. As noted above,
we cannot consider on interlocutory appeal the district court’s
determination that these fact issues are genuine. See Bazan, 246
F.3d at 490.
Accepting these fact issues as genuine, we must also draw
the conclusion that they are material. Ms. Goodman’s evidence,
if believed, casts doubt on Ashabranner’s claim that Goodman
overpowered a police dog, pushed Ashabranner to the ground on at
least two occasions, and reached for his back pocket. Because
Goodman’s actions, as alleged by Ashabranner, provide the
justification for Ashabranner’s decision to shoot, whether
12
Goodman was, in fact, physically capable of taking and did take
those actions is indeed material. Consequently, there is a
genuine issue of material fact as to the second prong of the
qualified immunity analysis--whether Ashabranner’s use of force
was objectively reasonable because he believed Goodman posed a
significant threat of death or serious physical injury.
Therefore, because there is a genuine issue of material fact, we
lack jurisdiction over Ashabranner’s interlocutory appeal and
must dismiss it. See id.
B. Ms. Goodman’s Appeal
Ms. Goodman appeals the district court’s decision to grant
Defendants’ motion for summary judgment on some of her claims.
Defendants assert that this court lacks jurisdiction over Ms.
Goodman’s interlocutory appeal because the district court has not
entered a final judgment, as the summary judgment order did not
resolve all of the claims in this case. Ms. Goodman’s counsel
conceded the lack of jurisdiction at oral argument, and we agree
that we are without jurisdiction to hear Ms. Goodman’s appeal.
See 28 U.S.C. § 1291; Marshall v. Kansas City S. Ry. Co., 378
F.3d 495, 499 (5th Cir. 2004) (per curiam) (“Generally, all
claims and issues in a case must be adjudicated in the district
court, and a final judgment or order must be issued, before our
jurisdiction can be invoked under § 1291.”). Therefore, we
dismiss Ms. Goodman’s appeal for lack of jurisdiction.
13
IV. CONCLUSION
For the foregoing reasons, we conclude that we lack
jurisdiction over both appeals and DISMISS them.
DISMISSED.
14