                                                      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.


                                15
