Audry Releford, Jr. v. City of Houston , 678 F. App'x 267 ( 2017 )

Case: 16-20193 Document: 00513902697 Page: 1 Date Filed: 03/08/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 16-20193 March 8, 2017
Lyle W. Cayce
Clerk
AUDRY L. RELEFORD, JR., Individually, and as Representative of the
Estate of Kenneth Brian Releford,
Plaintiff - Appellee
v.
JASON ROSEMON,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:14-CV-2810
Before DAVIS, CLEMENT, COSTA, Circuit Judges.
PER CURIAM:*
“Few facts in this case are undisputed.” 1 However, the parties stipulate
to the following. In the pre-dawn hours of October 11, 2012, Kenneth Brian
Releford was accused of breaking into a neighbor’s home and assaulting two of
its occupants. The Houston Police Department dispatched Officer Jason
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
1 Releford v. City of Hous., No. 4:14-CV-2810, 2016 WL 774552, at *1 (S.D. Tex. Feb.
29, 2016).
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No. 16-20193
Rosemon to the scene. When Rosemon encountered Releford – who was
unarmed – a dispute ensued, and Rosemon shot Releford twice, resulting in
Releford’s death.
Releford’s estate filed suit against Rosemon in his individual capacity
pursuant to 42 U.S.C. § 1983. Rosemon filed a motion for summary judgment
based on qualified immunity, the district court denied it, and Rosemon filed
this interlocutory appeal.
Rosemon claims that when he shot and killed Releford, Releford posed
an imminent risk of serious harm. His account reads as follows: Releford was
agitated and aggressive. He was accused of breaking into a neighbor’s home
and assaulting two of its occupants. His left hand was hidden behind his back.
It was dark. He was advancing towards Rosemon. Rosemon begged Releford to
stand down, to show his left hand, and to engage in dialogue rather than
violence. Releford refused. He continued to advance with his left hand behind
his back. When he got within a few feet of Rosemon, Rosemon shot him.
Releford absorbed the bullet and continued to advance — his left hand still
behind his back. So Rosemon shot him again. This time, Releford collapsed,
and Rosemon could see that he was unarmed. But it was too late. Releford was
already dead.
Releford’s estate presents a very different picture of the morning in
question, based in part on unsworn declarations that constitute competent
summary judgment evidence pursuant to 28 U.S.C. § 1746(2). 2 Creola Scott,
for example, claims that it was Rosemon who was animated, not Releford. That
Rosemon got out of his car with his gun drawn, walked toward Releford’s home,
and ordered Releford outside. Releford came outside. That Rosemon then
began backpedaling and ordered Releford to follow him, which Releford did.
2 See Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988).
2
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No. 16-20193
That Releford was not being loud or aggressive. That both of Releford’s hands
were in plain sight. That Releford clearly was not hiding a weapon in his left
hand. That Releford clearly was unarmed. That Rosemon shot and killed
Releford for no reason. That Releford never attempted to run. That Releford
did not charge at Rosemon. That Releford did not provoke Rosemon. That
Releford did not pose a threat to Rosemon. That Releford was compliant in all
respects.
“Where factual disputes exist in an interlocutory appeal asserting
qualified immunity, we accept the plaintiff’s version of the facts as true.” 3 To
the extent that Rosemon argues that he is entitled to qualified immunity under
Releford’s version of the facts, we disagree. The Supreme Court established in
1985 that “[a] police officer may not seize an unarmed, nondangerous suspect
by shooting him dead.” 4
To the extent that Rosemon argues that he is entitled to qualified
immunity under a different version of the facts, we DISMISS his appeal for
lack of appellate jurisdiction. “Where the district court has determined that
genuine issues of material fact preclude a determination of qualified immunity,
we have jurisdiction only to address the legal question of whether the
genuinely disputed factual issues are material for the purposes of summary
judgment.” 5 “Thus, a defendant challenging the denial of a motion for summary
judgment on the basis of qualified immunity ‘must be prepared to concede the
best view of the facts to the plaintiff and discuss only the legal issues raised by
the appeal.’” 6
3 Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 469 (5th Cir. 2014) (alteration
omitted) (quoting Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004)).
4 Tennessee v. Garner, 471 U.S. 1, 11 (1985).
5 Lytle v. Bexar Cty., Tex., 560 F.3d 404, 408 (5th Cir. 2009).
6 Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007) (quoting Gonzales v. Dallas Cty.,
Tex., 249 F.3d 406, 411 (5th Cir. 2001)).
3
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Appeal DISMISSED.
4