     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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  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

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                                 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).
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        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).
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                                  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
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                                   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

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                                  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
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                                 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
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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.




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