Meadours Ex Rel. Estate of Meadours v. Ermel

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.

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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.

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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.

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 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.

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