United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 24, 2003
Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk _____________________
No. 02-40335 _____________________
DEBERA MACE, Individually and as representative of the Estate of Jacob Vincent Revill, deceased,
Plaintiff-Appellant,
versus
CITY OF PALESTINE; PAT HENDERSON,
Defendants-Appellees.
__________________________________________________________________
Appeal from the United States District Court for the Eastern District of Texas
_________________________________________________________________
Before JOLLY, DUHÉ and WIENER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
After the shooting death of her son in a confrontation with
police, Debera Mace brought suit under 42 U.S.C. § 1983 against the
City of Palestine, Texas and Palestine Police Chief Pat Henderson.
Mace alleges that Henderson used excessive force against her son
and, after shooting her son, he was deliberately indifferent to her
son’s need for medical attention – all in violation of the Fourth
and Fourteenth Amendments. The district court granted summary
judgment for the defendants based on qualified immunity. We find
no reason to disturb the ruling and, accordingly, we affirm. I.
On April 16, 2001, police in the City of Palestine, Texas,
responded to complaints of a disturbance involving two intoxicated
individuals at a mobile home park. Officers arriving on the scene
found Jacob Vincent Revill (“Revill”) inside a mobile home with the
door open, yelling, cursing, brandishing an eighteen to twenty inch
sword and breaking windows. Blood was on his hands and on the
broken windows. The officers, with weapons drawn, told Revill to
drop the sword. Revill told the officers to stay away from him and
threatened to kill himself.1 He claimed to be an expert in martial
arts and made several martial arts motions with the sword in an
effort to keep the officers at bay. Revill demanded to talk to
Chief of Police Pat Henderson.2 Henderson arrived on the scene and
attempted to calm Revill by talking to him.3 Revill remained
agitated, cursing his father and his girlfriend, and continued
yelling and brandishing the sword. Henderson told Revill to drop
the sword and not to advance on the officers. He offered to take
Revill to see a doctor or psychologist.4 While Henderson was
1 The parties dispute whether Revill also threatened to kill the officers. 2 Revill and Henderson apparently knew each other. 3 A trained negotiator, Sergeant Wharton, also tried to talk to Revill, but got no response from him. 4 The dissent makes much of the fact that no psychologist was called to the scene, although we do note that an ambulance had been called. We think that the fact that no psychologist was on the scene is irrelevant to this case.
2 talking to him, Revill exited the mobile home.5 Revill continued
to brandish and make punching motions with the sword. During this
time Revill was between eight and ten feet away from the officers.
When Revill turned, and raised the sword toward the officers,
Henderson shot Revill in his right arm, causing him to drop the
sword.6
Henderson picked up the sword and shouted for a waiting
ambulance while the other officers tried to subdue Revill. Revill
attempted to flee, disobeyed orders to lie down, and fought off a
police dog. The officers finally subdued Revill with pepper spray
and pulled him to the ground. Medical personnel from the ambulance
began treating Revill as soon as he was subdued. Henderson
instructed one of the officers to drive the ambulance so the
medical personnel could continue caring for Revill, which
apparently caused a slight delay in the departure of the ambulance.
Revill died at the hospital.
Mace, Revill’s mother and representative of his estate,
brought this suit against Henderson and the city under 42 U.S.C. §
1983, alleging that Henderson used excessive force when he shot
Revill and that he was deliberately indifferent to Revill’s medical
needs when he had an officer drive the ambulance. She also alleged
5 The parties dispute whether Henderson asked Revill to exit the mobile home. 6 There is a dispute regarding whether Revill actually moved his feet while raising the sword.
3 that Henderson’s actions represented a city policy for responding
to emergency situations. Mace did not survive Henderson’s motion
for summary judgment based on qualified immunity and the City of
Palestine’s motion for summary judgment.
II.
This court reviews a district court’s grant of summary
judgment de novo. Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir.
2002). Summary judgment is appropriate when, viewing the evidence
in the light most favorable to the non-movant, there is no genuine
issue of material fact precluding judgment as a matter of law for
the movant. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994)(en banc).
Qualified immunity protects officers from suit unless their
conduct violates a clearly established constitutional right.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Claims of
qualified immunity require a two-step analysis. First we must
determine “whether the facts alleged, taken in the light most
favorable to the party asserting the injury, show that the
officer’s conduct violated a constitutional right.” Price v.
Roark, 256 F.3d 364, 369 (5th Cir. 2001)(citing Saucier v. Katz, 533
U.S. 194, 200 (2001)). If there is no constitutional violation,
our inquiry ends. However, if “the allegations could make out a
constitutional violation, we must ask whether the right was clearly
established – that is whether ‘it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
4 confronted.’” Id.
III.
Our qualified immunity analysis begins with a determination of
whether Henderson violated Revill’s constitutional right to be free
from excessive force.7 Claims that law enforcement officers used
excessive force are analyzed under the Fourth Amendment. Graham v.
Connor, 490 U.S. 386, 395 (1989). A plaintiff must prove injury
suffered as a result of force that was objectively unreasonable.
Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996). In this
case, the only question in our qualified immunity analysis is
whether Henderson’s use of deadly force was objectively
unreasonable.
Applying the Fourth Amendment’s objective reasonableness
standard, we must determine the reasonableness of Henderson’s use
of deadly force in the light of the facts and circumstances
confronting him at the time he acted, without regard to his
7 Mace argues that Saucier requires us to make this determination based on the pleadings alone, and urges us to take her conclusory allegations of constitutional violations as definitive on this point. We do not read the Supreme Court’s decision in Saucier to have changed the rules governing summary judgment. In ruling on a summary judgment motion of any kind, courts must consider “the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any”. Fed. R. Civ. P. 56(c). To limit a summary judgment inquiry based on qualified immunity to a consideration of the pleadings alone would destroy the central purpose of granting immunity from suit. Saucier, 533 U.S. at 200-01 (noting the nature of immunity and the importance of early rulings on qualified immunity). Finally, it is well established that a nonmovant cannot overcome summary judgment with conclusory allegations and unsubstantiated assertions. Little, 37 F.3d at 1075.
5 underlying intent or motivation.8 Graham, 490 U.S. at 396. In
making this determination, we must be mindful that police officers
are “forced to make split-second judgments – in circumstances that
are tense, uncertain, and rapidly evolving – about the amount of
force that is necessary in a particular situation.” Id. at 396-97.
Use of deadly force is not unreasonable when an officer would
have reason to believe that the suspect poses a threat of serious
harm to the officer or others. Tennessee v. Garner, 471 U.S. 1
(1985). It is undisputed that Revill was intoxicated, agitated,
breaking windows, shouting, and brandishing an eighteen to twenty
inch sword. Revill did not respond to commands to drop his sword
or to stop moving toward the officers. He continued to make
punching motions with his sword while no more than ten feet away
from the officers. The record evidence is uncontradicted that when
he was shot, Revill was raising his sword toward the officers. The
record further shows that this event took place in the close
quarters of a mobile home park, which limited the officers’ ability
to retreat or to keep Revill from harming others in the area. Mace
8 The dissent contends that we must consider Henderson’s subjective intent -- that he shot to wound Revill and prevent his death. We disagree. As the Supreme Court has noted, “[a]n officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.” Graham, 490 U.S. at 397. We do not think it is proper, as the dissent suggests, to consider the subjective intent of the officer as evidence of whether an officer could have perceived a threat of danger to himself or others in the circumstances before him.
6 urges us to find that two disputed issues of fact are material to
whether Henderson’s actions were unreasonable: first, the parties
dispute whether Revill verbally threatened the officers and,
second, the parties dispute the reason that Revill exited the
mobile home. A resolution of these disputed issues in favor of
either party would not change our analysis because we have viewed
these facts in the light most favorable to Mace as is required for
summary judgment.9
Henderson was faced with an intoxicated, violent and
uncooperative individual who was wielding a sword within eight to
ten feet of several officers in a relatively confined space. It is
not objectively unreasonable for an officer in that situation to
believe that there was a serious danger to himself and the other
officers present. Although, in retrospect, there may have been
alternative courses of action for Henderson to take, we will not
use “the 20-20 vision of hindsight” to judge the reasonableness of
Henderson’s use of force. Graham, 490 U.S. at 396. Henderson’s use
of force against Revill was not objectively unreasonable;
therefore, it was not in violation of the Constitution. Because
Henderson did not violate Revill’s constitutional right to be free
from excessive force, he is entitled to qualified immunity from
9 The dissent argues that the opinion testimony of Forest Frix that he thinks that Revill posed no danger to the officers creates a dispute of fact that precludes the grant of qualified immunity on summary judgment. These are statements of opinion and conclusion, not fact, and are therefore irrelevant to our inquiry in this case.
7 suit on Mace’s excessive force claim and the City of Palestine is
entitled to summary judgment on this claim.10 City of Los Angeles
v. Heller, 475 U.S. 796, 799 (1986)(holding that a municipality may
not be held liable under § 1983 where no constitutional deprivation
has occurred).
IV.
We now turn to Mace’s claim that Henderson showed deliberate
indifference to Revill’s medical needs. The constitutional right
of a pretrial detainee to medical care arises from the due process
guarantees of the Fourteenth Amendment. Wagner v. Bay City, 227
F.3d 316, 324 (5th Cir. 2000). That right is violated if an officer
10 Because we find no constitutional violation, we do not need to address the second prong of the qualified immunity analysis. We do note that a determination that the force used by Henderson was excessive and thus violated Revill’s constitutional rights would not end the qualified immunity inquiry. The Supreme Court has expressly held that the qualified immunity reasonableness inquiry is separate from the Fourth Amendment’s objective reasonableness inquiry in excessive force cases. Saucier, 533 U.S. at 197. The second prong of the inquiry would require us to determine whether “it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted.” Saucier, 533 U.S. at 202.
The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.... Qualified immunity operates in this case, then, just as it does in others, to protect officers from the sometimes ‘hazy border between excessive and acceptable force.’
Saucier, 533 U.S. at 205-06 (citations omitted). Henderson’s use of force in this case was not unreasonable under this standard.
8 acts with deliberate indifference to a substantial risk of serious
medical harm and resulting injuries. Id. Deliberate indifference
requires that the official have subjective knowledge of the risk of
harm. Id. Mere negligence or a failure to act reasonably is not
enough. The officer must have the subjective intent to cause harm.
Id.
Mace does not dispute the basic facts relating to the medical
attention received by Revill. There was an ambulance at the scene,
which Henderson summoned. The medical personnel present attended
Revill immediately after he was subdued by police. Chief Henderson
ordered one of the officers to drive the ambulance so that both
medical personnel could attend to Revill during the drive. The
medical personnel continued to attend to Revill as they transported
him to the hospital. He died at the hospital. Mace offers two
items of evidence in support of her claim of deliberate
indifference: first, testimony that Henderson knew Revill’s
injuries were serious and, second, the ambulance “run sheet”
indicating extended time at the scene waiting for the officer to
drive the ambulance. Mace offers no evidence showing that
Henderson intended to cause delay by having the officer drive the
ambulance or was otherwise indifferent to Revill’s condition.
Furthermore, Mace offers no evidence indicating that the officer
intentionally delayed driving the ambulance in order to cause harm.
Viewing the facts in the light most favorably to Mace, no
reasonable jury could find deliberate indifference; therefore, the
9 district court correctly granted summary judgment for defendants on
this claim.
V.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
10 WIENER, Circuit Judge, concurring in part and dissenting in part:
I agree that the district court properly granted summary
judgment for the defendants on Mace’s deliberate indifference
claim. I also agree with the majority’s explication of the law of
qualified immunity in the excessive force context. But, because I
conclude, based on the record before us, that myriad material facts
in dispute prevent a grant of qualified immunity at this juncture,
I respectfully dissent.
First, Chief Henderson testified that he felt he “needed” to
shoot Revill to “save his life,” but the eyewitness testimony of
Revill’s neighbor, Forrest Frix, contradicts Henderson’s version of
the events in several significant factual particulars. Frix
maintains that Revill was standing still, not advancing; that he
never threatened to kill or otherwise harm the police officers;
that he did not pose an immediate threat to the officers, who, at
the time of the shooting, had at least five or six feet of
additional space behind them in which to retreat; and that Revill
was continuing to talk with Henderson.
I recognize that in making the qualified immunity
determination we look only to the objective reasonableness of the
use of deadly force, “without regard to [Henderson’s] underlying intent or motivation.”11 Here, however, the testimony of the police
chief is probative of the objective reasonableness of the need of
or justification for the use of lethal force: Quite separate and
apart from Chief Henderson’s subjective intention to wound Revill
to preempt his being fatally shot by one of Henderson’s
subordinates, his testimony also goes to the objective factual
issue of the threat posed. Keeping in mind that Henderson had
known Revill since childhood, that Revill had asked for Henderson
by name to come and mediate the situation, and that they were still
talking (had not broken off negotiations), Henderson’s factual
testimony of shooting to wound rather than kill is probative of the
extent of the threat posed, supporting Frix’s observation that the
threat was non-immediate and non-lethal. This further supports a
conclusion that Henderson was not objectively reasonable when he
inflicted lethal force by shooting Revill at point-blank range with
a service weapon; conduct that any seasoned police officer, much
less a chief, has to know has deadly potential, regardless of the
point of aim or impact.
Second, according to the neighbor, Frix, when Henderson fired
Revill was not lunging toward the officers or even moving in their
direction: Rather, Revill had stepped off to his right and was
standing still.12
11 Graham, 490 U.S. at 397. 12 In recounting the facts leading up to the shooting, the district court noted that “Revill exited the trailer and advanced
12 In addition, several facts that are not in dispute militate
against a finding of objective reasonableness. Revill was alone,
intoxicated, and likely unable to see well in the dark trailer
park. Although he was armed with an eighteen inch knife, he was
facing several officers with guns drawn. Moreover, Revill was
speaking with a person he knew, presumably trusted, and had asked
for by name. He was contemplating suicide and was asking to speak
with a psychologist. And, there is no evidence that Revill had
committed a violent crime (or for that matter, any felony) at the
time of the stand-off.13
I do not deny that a jury might conclude, in this very close
case, that even a veteran police chief — one who had known the
victim since his childhood, whose mediation efforts had been
requested by the victim and were ongoing, and who, like his
officers, was armed with and had drawn and aimed a large caliber
service weapon at point-blank range against a still-standing
intoxicant in possession of nothing more than a long knife or short
sword — could nonetheless form a not-unreasonable belief that he,
down the front steps . . . then took another step toward the officers and raised the sword in a threatening manner.” The court either overlooked the conflicting testimony on this point or made a finding of fact, impermissibly resolving this disputed material fact in favor of Chief Henderson. 13 See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1314 (10th Cir. 2002) (noting that the Graham reasonableness standard “implores the court to consider factors including the alleged crime’s severity, the degree of potential threat that the suspect poses to an officer’s safety . . . and the suspect’s efforts to resist or evade arrest”).
13 his officers, or innocent civilians were in such danger that lethal
force was justified. That a jury might so find is not the test,
however: The determinative objective fact remains that all of this
could just as easily add up to objective unreasonableness in the
minds of the jurors. Because a jury could go either way on
objective reasonableness, depending solely on which version of the
genuinely disputed material facts the jury credits, a grant of
qualified immunity to Chief Henderson at this step of the summary
judgment proceedings is, in my opinion, premature.
In reaching this conclusion, I remain mindful of our duty to
avoid “second-guessing” the “split second judgment” of Chief
Henderson and his officers during this unquestionably tense
encounter with an inebriated, deeply disturbed and volatile young
man. Given the conflicting eyewitness testimony, however, and
viewing the disputed facts, as we must, in the light most favorable
to Mace, as the non-movant, I simply cannot accept that, at this
liminal stage of litigation, we can hold that Henderson’s use of
deadly force was objectively reasonable.14 Several questions,
including (1) whether Revill was threatening to harm the officers,
(2) whether he was advancing, or retreating, or standing still when
he was shot, and (3) whether the overall situation was rapidly
14 I emphasize the narrowness of such a holding. See, e.g., Goodson v. City of Corpus Christi, 202 F.3d 730, 739 (5th Cir. 2000) (“Our only holding is that we cannot tell, at the summary judgment stage of the case where we must view the evidence in the light most favorable to [Mace], whether [Henderson] acted in an objectively reasonable manner.”).
14 deteriorating (as the defendant, Henderson, claims) or steadily
improving (as the disinterested witness, Frix, testified) cannot
be resolved without weighing the evidence and evaluating the
credibility of witnesses — functions exclusively reserved for the
trier of fact.15 For all of these reasons, I would reverse the
district court’s grant of Henderson’s motion for summary judgment
on the question of the objective reasonableness of his use of
lethal force and his entitlement, at this first step in the
process, to qualified immunity, and thus would remand the case for
further proceedings.16
15 See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (“[T]he court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.”). 16 The majority correctly points out that a determination that the force used by Henderson was excessive and thus violated Revill’s constitutional rights would not end the qualified immunity analysis; the second prong of the Saucier inquiry would require the court to determine whether “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. The district court noted, in dicta within a footnote, that the “[p]laintiff has not shown that Henderson’s use of deadly force violated a clearly established constitutional right” and that “[a] reasonable police officer could properly believe that the use of deadly force . . . would not violate a clearly established constitutional right.” This conclusion may ultimately prove correct; however, this issue was not raised or briefed by the defendants on appeal and thus is not before us.