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.)
22
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
27
Bazan Ex Rel. Bazan v. Hidalgo County
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