David Collie v. Hugo Barron ( 2018 )


Menu:
  •      Case: 17-10935      Document: 00514623644         Page: 1    Date Filed: 08/30/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 17-10935
    Fifth Circuit
    FILED
    August 30, 2018
    DAVID B. COLLIE,                                                      Lyle W. Cayce
    Clerk
    Plaintiff - Appellant
    v.
    HUGO BARRON,
    Defendant - Appellee
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 4:17-CV-211
    Before STEWART, Chief Judge, and JONES and ENGELHARDT, Circuit
    Judges.
    PER CURIAM:*
    This appeal addresses the alleged use of excessive force when an off-duty
    policeman shot Plaintiff-Appellant David Collie (“Collie”) during the response
    to a robbery call. The district court granted the officer’s motion for summary
    judgment on the basis of qualified immunity and dismissed the claims against
    him. Although this tragic case exemplifies an individual’s being in the wrong
    place at the wrong time, under current governing law, we must AFFIRM.
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 17-10935     Document: 00514623644     Page: 2   Date Filed: 08/30/2018
    No. 17-10935
    I.
    On the night of July 27, 2016, Officer Hugo Barron (“Barron”) and his
    colleague Deputy Vanessa Flores were working a 7 p.m. to 3 a.m. shift
    patrolling a private apartment complex at 3000 Las Vegas Trail in Fort Worth,
    Texas. This part-time work was sanctioned by the police department, and
    Barron and Flores were both wearing their police uniforms, driving a marked
    patrol car, and monitoring the local dispatch alerts.
    Just before midnight, a robbery was reported at a gas station three
    blocks from where Barron and Flores were working. The two suspects fled on
    foot toward a nearby apartment complex. The Fort Worth Police Department
    issued an alert across the police radios and in-car computers. The report
    advised the two black men were shirtless and one was armed with a silver gun.
    The report stated in full:
    ACTORS ARE 2 BM’S WHO LEFT ON FOOT TO AN APT
    COM[P]LEX ON NORMANDALE. CP HAD MET THESE
    ACTORS ON FACEBOOK TO BUY SHOES. ACTORS BM NO
    SHIRT BASKETBALL SHIRT AND BM NO SHIRT KHAKI
    PANTS. 1 ACTOR HAD A SMALL SILVER HANDGUN ...
    MEDSTAR REF.
    Barron and Flores responded to the call and began searching the area.
    They pulled into a nearby apartment complex where Collie, wearing shorts and
    no shirt, was walking.
    According to Officer Barron, although the area was lit by a nearby street
    light and the beam of his headlights, it was still relatively dark. Because Collie
    fit the description of one of the suspects, and Officer Barron knew one robber
    was armed, Barron drew his handgun. There is no audio of the encounter.
    Collie claims the officers were calling conflicting commands. Barron’s affidavit
    states, and video confirms, that Collie continued to walk away from the officers
    with his hands in his pockets. Officer Barron stated that when Collie removed
    2
    Case: 17-10935    Document: 00514623644     Page: 3   Date Filed: 08/30/2018
    No. 17-10935
    his hand from his pocket and swung it upward and over in the direction of
    Officer Flores, he thought he saw the glint of a gun. Officer Barron fired two
    shots, one of which struck Collie, who immediately fell to the ground. Collie
    had no gun, but a silver box cutter was retrieved from the grass nearby. The
    bullet left Collie paralyzed from the waist down.
    Collie sued Fort Worth Police Department Officers Barron, Harrington,
    and Rohloff; Chief of Police Fitzgerald; Tarrant County Sheriff’s Deputy
    Vanessa Flores; the City of Fort Worth; Tarrant County; and 11 Doe
    Defendants. Collie voluntarily dismissed his claims against Deputy Flores and
    the Chief of Police, and the district court dismissed all remaining claims except
    for the excessive force claim against Officer Barron. Officer Barron moved to
    stay the civil proceeding while the grand jury deliberated on the possibility of
    criminal action. The court denied the request for a stay, but did grant a stay
    on discovery to allow Officer Barron to move for summary judgment on the
    ground of qualified immunity.     The district court granted Officer Barron’s
    motion, and Collie appeals the decision and the district court’s denial of
    discovery before summary judgment.
    II.
    This court reviews a district court’s grant of summary judgment de novo,
    viewing the evidence in the light most favorable to the non-movant. Cantrell
    v. City of Murphy, 
    666 F.3d 911
    , 922 (5th Cir. 2012) (citation omitted).
    Judgment is proper if there are no genuine issues of material fact and the
    movant is entitled to judgment as a matter of law. Hanks v. Rogers, 
    853 F.3d 738
    , 743 (5th Cir. 2017) (citation omitted). In cases where qualified immunity
    is raised as a defense “the burden shifts to the plaintiff, who must rebut the
    defense by establishing a genuine fact issue as to whether the official’s
    allegedly wrongful conduct violated clearly established law.”        
    Id. at 744
    (internal quotation marks and citation omitted).
    3
    Case: 17-10935      Document: 00514623644        Page: 4    Date Filed: 08/30/2018
    No. 17-10935
    A denial of the right to take discovery before entering summary
    judgment is reviewed for abuse of discretion. Resolution Trust Corp. v. Sharif-
    Munir-Davidson Dev. Corp., 
    992 F.2d 1398
    , 1401 (5th Cir. 1993).
    III.
    Qualified immunity is a defense available to government officials to
    provide them some shield from “undue interference with their duties and from
    potentially disabling threats of liability.” Harlow v. Fitzgerald, 
    457 U.S. 800
    ,
    806, 
    102 S. Ct. 2727
    , 2732 (1982).         A plaintiff must show that an official
    (1) violated a clearly established constitutional right, and (2) “that right was
    clearly established at the time of the misconduct[.]” Manis v. Lawson, 
    585 F.3d 839
    , 843 (5th Cir. 2009).
    Under the first prong, 1 claims of excessive force made against law
    enforcement officers are subject to the Fourth Amendment’s “reasonableness”
    standard, which calls for “a careful balancing of the nature and quality of the
    intrusion . . . against the countervailing governmental interests at stake.”
    Graham v. Connor, 
    490 U.S. 386
    , 395, 
    109 S. Ct. 1865
    , 1871 (1989) (internal
    quotation marks and citations omitted).           There is no doubt that innocent
    citizens have a clearly established right not to be shot by police officers, but
    the questions for summary judgment purposes are whether the officer acted
    “unreasonably” under the circumstances, and whether reasonable officers
    could differ on the lawfulness of an officer’s actions.            Mullenix v. Luna,
    
    136 S. Ct. 305
    , 308 (2015).
    A.       Officer Barron’s actions were objectively reasonable.
    Collie argues that under the first prong of the qualified immunity
    defense, there is a genuine, material fact issue that Officer Barron violated his
    1The two-pronged inquiry may be conducted in any sequence. 
    Manis, 585 F.3d at 843
    (citations omitted).
    4
    Case: 17-10935     Document: 00514623644      Page: 5   Date Filed: 08/30/2018
    No. 17-10935
    Fourth Amendment right to be free of objectively unreasonable excessive force.
    A plaintiff must show “(1) an injury, (2) which resulted directly and only from
    the use of force that was clearly excessive, and (3) the excessiveness . . . was
    clearly unreasonable.” 
    Manis, 585 F.3d at 843
    (internal quotation marks and
    citations omitted).    Collie attempts to rely on his own affidavit and the
    testimony of his expert witness in photogrammetry to argue that there is a
    genuine dispute over the reasonableness of Officer Barron’s action. Based on
    these pieces of evidence, Collie asserts that, contrary to the officer’s affidavit,
    he did not point directly at Flores, and he was not holding a box-cutter when
    he was shot. Even if Collie’s evidence is accurate, however, it would not
    preclude summary judgment. The district court noted that Collie did not
    “dispute that he kept moving or that he raised and pointed his arm,” and the
    dash cam footage supports those facts. Because “the test is whether Barron
    acted reasonably in light of what he perceived,” and “both Flores and Barron
    perceived” that Collie had a gun (as supported by Collie’s concession), the
    district court correctly viewed his proffer as immaterial to the constitutional
    issue.
    Collie renews his objection on appeal that reality trumps Barron’s
    perception, and disputed interpretations of the dash cam video create genuine
    issues that should preclude summary judgment.           But in Scott v. Harris,
    
    550 U.S. 372
    , 380-81, 
    127 S. Ct. 1769
    , 1776 (2007), the Supreme Court held
    that dash cam footage was so clear no reasonable jury could accept the
    plaintiff’s version of events. Here, too, a review of the video confirms that even
    without sound or metadata, Officer Barron’s actions were reasonable under the
    circumstances. Unlike the video at issue in Ramirez v. Martinez, 
    716 F.3d 369
    ,
    374 (5th Cir. 2013), which began after the altercation had started and was
    cluttered and confused by multiple, indistinguishable people, Officer Barron’s
    dash cam footage clearly shows Collie moving away from the officers, with his
    5
    Case: 17-10935       Document: 00514623644    Page: 6   Date Filed: 08/30/2018
    No. 17-10935
    hands initially in his pockets before he raised and pointed them in the direction
    of Officer Flores.
    An officer’s use of deadly force is justified when the officer reasonably
    perceives an immediate threat of serious bodily harm or death to themselves
    or to others. See Rockwell v. Brown, 
    664 F.3d 985
    , 991 (5th Cir. 2011) (internal
    quotation marks and citation omitted). Neither post-incident proof that Collie
    carried no weapon, nor the fact that Collie never directly pointed at Flores
    changes this analysis. Nor do the stop-action shots made by Collie’s expert
    from the dash cam video change this analysis, because they give a false
    perspective on events that transpired in a few seconds. The district court
    properly focused on whether Officer Barron’s actions were justified in the heat
    of the moment. See Ramirez v. Knoulton, 
    542 F.3d 124
    , 130 (5th Cir. 2008)
    (“The Fourth Amendment does not require police officers to wait until a suspect
    shoots to confirm that a serious threat of harm exists.”) (quoting Elliott v.
    Leavitt, 
    99 F.3d 640
    , 643 (4th Cir. 1996)); Salazar-Limon v. City of Houston,
    
    826 F.3d 272
    , 278-79 (5th Cir. 2016) (finding no other issues were important
    in a case where an officer shot a combative, drunk suspect who was walking
    away because the suspect reached for his waistband; thus, the officer’s decision
    to shoot was not a use of unreasonable or excessive deadly force.). The district
    court’s determination that Officer Barron acted reasonably in light of the facts
    before him is well supported.
    B.      Collie failed to show Officer Barron               violated clearly
    established law.
    Under the second prong of the qualified immunity analysis, Collie must
    show the law was clearly established, and to do this he was required to produce
    cases where the qualified immunity defense has failed under similar
    circumstances.       White v. Pauly, 
    137 S. Ct. 548
    , 552 (2017).   Collie fails to
    6
    Case: 17-10935     Document: 00514623644     Page: 7   Date Filed: 08/30/2018
    No. 17-10935
    address the Supreme Court’s explicit directive in Pauly that although claims
    of excessive force do not require a case that is directly on point, the standard
    hugs the line closely by requiring a case “under similar circumstances.” 
    Id. Instead, Collie
    relies on Graham v. Connor for the general rule that an officer’s
    actions must be objectively reasonable. He then contends that because he did
    not fit more complete descriptions of the suspects, did not point in the direction
    of Deputy Flores, and did not have a weapon in his hand, Officer Barron’s claim
    to believe his partner’s life was in danger should be given no more weight than
    Collie’s own testimony. We note that the summary judgment evidence does
    not show that the officers had received the height/weight/age descriptions of
    the suspects at the time they encountered Collie. Collie’s position also excludes
    the relevant facts that he was a shirtless black male on foot in the near vicinity
    of the robbery who encountered the officers in a dimly lit area and did not stop
    in response to their commands.        Accordingly, Collie’s argument failed to
    discharge his legal burden to “find a case in his favor that does not define the
    law at a ‘high level of generality.’” Vann v. City of Southaven, Miss., 
    884 F.3d 307
    , 310 (5th Cir. 2018) (quoting Cass v. City of Abilene, 
    814 F.3d 721
    , 732-33
    (5th Cir. 2016)). Indeed, the Supreme Court recently reiterated: “Although
    this Court’s caselaw does not require a case directly on point for a right to be
    clearly established, existing precedent must have placed the statutory or
    constitutional question beyond debate.” Kisela v. Hughes, 
    138 S. Ct. 1148
    ,
    1152 (2018) (internal quotation marks and citation omitted). The district court
    correctly pointed out this deficiency in Collie’s argument.
    C.     The district court did not abuse its discretion in denying
    Collie the right to take discovery.
    Contending that the district court abused its discretion in denying him
    the opportunity to take discovery before it entered summary judgment, Collie
    decries that practice.    He fears it will furnish “rogue officers and poorly
    7
    Case: 17-10935    Document: 00514623644     Page: 8   Date Filed: 08/30/2018
    No. 17-10935
    managed police departments” a “virtual how-to booklet” to shield themselves
    from accountability. Collie asserts other Fort Worth Police officers had more
    information about the events that took place before Officer Barron shot Collie.
    Thus, discovery would have permitted him to prove Officer Barron either knew
    or should have known Collie did not fit the description of the robbery suspects
    and could not be the armed suspect.
    As relevant here, the goals of qualified immunity counsel no more than
    a minimum of necessary discovery before the court determines whether the
    defense attaches:    “Until this threshold immunity question is resolved,
    discovery should not be allowed.” 
    Harlow, 457 U.S. at 818
    , 102 S. Ct. at 2738.
    This court has previously recognized “[o]ne of the most salient benefits of
    qualified immunity is protection from pretrial discovery.” Backe v. LeBlanc,
    
    691 F.3d 645
    , 648 (5th Cir. 2012) (citation omitted). The Supreme Court has
    emphatically directed, “qualified immunity is an immunity from suit rather
    than a mere defense to liability.” Pearson v. Callahan, 
    555 U.S. 223
    , 231,
    
    129 S. Ct. 808
    , 815 (2009) (internal quotation marks and citation omitted).
    Collie’s position fails in several ways – beginning with the fact that he
    failed to preserve this argument for appeal.           Federal Rule of Civil
    Procedure 56(d) requires a non-movant to present affidavits and evidence if he
    feels he needs discovery to properly defend against a summary judgment
    motion. Adams v. Travelers Indem. Co. of Conn., 
    465 F.3d 162
    (5th Cir. 2006)
    (“[A] party may not simply rely on vague assertions that additional discovery
    will produce needed, but unspecified, facts.” (internal quotation marks and
    citation omitted)). Collie never sufficiently invoked Rule 56(d) in the trial
    court. Further, “[w]hen a defendant pleads the defense of qualified immunity,
    the district court may ban discovery at this threshold pleading stage and . . .
    need not allow any discovery unless it finds that plaintiff has supported his
    claim with sufficient precision and factual specificity to raise a genuine issue
    8
    Case: 17-10935   Document: 00514623644     Page: 9   Date Filed: 08/30/2018
    No. 17-10935
    as to the illegality of defendant’s conduct at the time of the alleged acts.”
    Brown v. Manning, 
    244 F.3d 133
    , at *4 (5th Cir. 2000) (unpublished) (quoting
    Schultea v. Wood, 
    47 F.3d 1427
    , 1434 (5th Cir. 1995) (en banc)). Here, the
    parties’ competing evidence convinced the court that Collie could not overcome
    the defense of qualified immunity. The court did not abuse its discretion or
    misapply the law when denying additional discovery.
    For these reasons, the district court’s judgment is AFFIRMED.
    9