           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 27, 2008

                                     No. 07-50916                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


DANIEL ROCHA, Deceased, By Daniela Rocha, Mother and Representative
of Estate; DANIELA ROCHA, Mother and Representative of Estate;
GERARDO ROCHA, Father

                                                  Plaintiffs-Appellees
v.

JULIE SCHROEDER, In her official and individual capacity

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:06-CV-67


Before JONES, Chief Judge, and PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
       Daniela and Gerardo Rocha filed this 42 U.S.C. § 1983 action against
Officer Julie Schroeder, inter alia, alleging that she used excessive force when
she fatally shot their son, Daniel Rocha.              Schroeder moved for summary
judgment based on qualified immunity. The district court denied her motion,
and she appeals. We DISMISS for lack of appellate jurisdiction.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-50916

      The reason for dismissal, however, needs to be explained in the event that
the district court misperceived the relationship between qualified immunity in
this lethal force case and the underlying constitutional violation.
      Whether Officer Schroeder used lethal force unconstitutionally is governed
by the balancing test established in Tenn. v. Garner, 471 U.S. 1, 8 (1985) and
frequently explained by this court. See, e.g., Ikerd v. Blair, 101 F.3d 430, 433-34
(5th Cir. 1996); Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481 (5th Cir.
2001); Hudspeth v. Shreveport, No. 07-30260, 2008 WL 749547 (5th Cir.
Mar. 19, 2008) (unpublished but containing valuable application of principles in
a lethal force § 1983 case).       The essence of this test is the objective
reasonableness of the officer’s use of force in the face of a threat to herself or
others.
      The district court may, however, have overlooked the Supreme Court’s
holding that, “The inquiries for qualified immunity and excessive force remain
distinct, even after Graham [v. Conner, 490 U.S. 386 (1989)].” Saucier v. Katz,
533 U.S. 194, 204 (2001). Thus, the relevant immunity issue is whether “it
would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Id. at 202. Further, the purpose of immunity is to
protect “all but the plainly incompetent or those who knowingly violate the law,”
Id. (citations omitted). Thus, in any § 1983 case alleging a police officer’s use of
excessive or lethal force, the objective reasonableness of the force used is a
separate question from the immunity question whether no reasonable officer
could have believed that she was not using excessive force. See Colston v.
Barnhart, 130 F.3d 96, 99 (5th Cir. 1997).
      The district court gave short shrift to analysis of the evidence that, viewed
in the light most favorable to the plaintiff, demonstrates that Rocha attacked
two police officers and was on top of one when Officer Schroeder shot him. The
court apparently believed that a material fact issue of “excessiveness” could be

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created solely by alleged inconsistencies in Officer Schroeder’s statements about
her motivation. The court states: “A reasonable trier of fact might believe she
shot Rocha because he was trying to obtain her gun, or because she thought he
had her taser, or disbelieve both accounts.”        This court must review the
materiality, though not the genuineness, of fact issues pertinent to immunity
cases. See Johnson v. Jones, 515 U.S. 304, 313 (1995). Standing alone, the
officer’s subjective statements, even if conflicting, are not sufficient to create a
material issue concerning the objective reasonableness of her conduct for
immunity purposes. The issue is not simply what she perceived Rocha to be
doing but, critically, whether a “reasonable” police officer confronted with the
same circumstances would have shot him. In many cases, a defendant’s violent
attack on police officers results in the grant of qualified immunity. See, e.g.
Colston, 130 F.3d at 99; Bazan, 246 F.3d at 481; Hudspeth, 2008 WL 749547.
The situation here is distinguishable, however, because (a) Officer Schroeder
was disciplined and ultimately terminated by the police force over this incident;
(b) Officer Doyle, who was being attacked when Schroeder shot Rocha, expressed
doubt over the use of lethal force; and (c) despite the need for split-second
decisionmaking, it is possible a “reasonable” officer would have known that a
taser shot would not be lethal to Officer Doyle and could have noticed that Rocha
actually had no weapon in his hands. Because these facts and the related
evidence materially bear on the immunity question and must be deliberated by
a jury, we lack jurisdiction to consider this appeal.
      DISMISSED.




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