     Case: 10-11053   Document: 00511697420    Page: 1   Date Filed: 12/15/2011




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

                                                                    FILED
                                                              December 15, 2011

                                  No. 10-11053                   Lyle W. Cayce
                                                                      Clerk

RICHARD ROCKWELL, Individually and as Co-Administrator of the Estate
of Scott Rockwell, Deceased; CINDY ROCKWELL, Individually and as Co-
Administrator of the Estate of Scott Rockwell, Deceased,

                                            Plaintiffs–Appellants
v.

LIEUTENANT WILLIAM H. BROWN; OFFICER DAVID J. SCICLUNA;
OFFICER DUSTIN D. RALEY; OFFICER COLLEEN OHLDE; OFFICER
BILLY BURLESON; OFFICER MARIO GARCIA,

                                            Defendants–Appellees


                  Appeal from the United States District Court
                       for the Northern District of Texas


Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
        On February 14, 2006, six police officers from the Garland, Texas police
department breached the locked door to the private bedroom of Richard and
Cindy Rockwell’s 27-year-old son, Scott, to arrest him for threatening his
mother. Scott attacked the officers with two knives, and in the ensuing melee,
the officers shot and killed him. The Rockwells sued the officers for excessive
force, assault and battery, and unlawful entry. The district court granted
summary judgment to the officers on the basis of qualified immunity and state-
   Case: 10-11053      Document: 00511697420         Page: 2    Date Filed: 12/15/2011



                                      No. 10-11053

law official immunity. The Rockwells appealed. We affirm the district court’s
grant of summary judgment on all claims.
                                  I. BACKGROUND
       The magistrate judge’s report and recommendation, which was adopted by
the district court, sets forth the relevant facts.1
              In February 2006, Plaintiffs Richard and Cindy Rockwell lived
       with their son Scott Rockwell at [their home] in Garland, Texas.
       Scott had his own bedroom and contributed to the rent. Scott
       suffered from both bipolar disorder and schizophrenia. Scott had
       also been diagnosed as suicidal and had attempted suicide on more
       than one occasion. His mental condition and stability began to
       deteriorate in early February. He had quit taking his prescribed
       medication and refused to see a doctor. He began hearing voices
       and was behaving “unpredictably.” His parents believed he may
       have been under the influence of illegal drugs.
              On the evening of February 14, 2006, Scott was in his room
       hitting the walls and cursing through the door. At one point during
       the evening, Scott came out of his room and raised his fist as if to hit
       his mother. At approximately 8:38 p.m., Scott’s parents called 911
       because they believed that Scott ha[d] become a danger to himself
       and others. The 911 dispatcher dispatched Officers Ohlde and
       Raley to the Rockwell home. The dispatcher told the officers that
       Scott was bi-polar, schizophrenic, off his medication, and that he
       was pounding the walls of his room and refusing to come out.
       Officer Burleson offered over the radio to come “since there was a
       potentially dangerous subject there.” Officer Ohlde accepted
       Burleson’s offer of assistance.
              Officer Burleson was the first to arrive at the scene, arriving
       at approximately 8:45 p.m. Officers Ohlde and Raley arrived soon
       thereafter. At the Rockwell home, Mrs. Rockwell told the police that
       Scott had schizophrenia, was talking to himself, hadn’t taken his
       medication for several days, refused to come out of his room, and
       that she believed that Scott was taking illegal drugs. When the
       officers asked Mrs. Rockwell what Scott would likely do if they were
       to leave without detaining Scott, she answered that she did not
       know.

       1
         The facts were mostly undisputed, but where there was a dispute, it was resolved in
favor of the Rockwells. See Hill v. Carroll Cnty., Miss., 587 F.3d 230, 233 (5th Cir. 2009).

                                             2
Case: 10-11053   Document: 00511697420     Page: 3   Date Filed: 12/15/2011



                              No. 10-11053

          Officers Ohlde, Burleson, and Raley attempted to
   communicate with Scott through his bedroom door. Scott was
   threatening the officers from his room and had indicated that “he
   thought someone had put ‘cum’ in his mouth.” The Officers believed
   that Scott was suggesting he had been sexually assaulted. Officer
   Raley advised Officers Ohlde and Burleson that the SWAT team had
   been called to respond to Scott on at least one prior occasion and
   had taken Scott into custody for threatening and assaulting his
   parents. At about this time, Officer Ohlde called Lieutenant Brown
   (“Lt. Brown” or “Brown”) who then came to the scene. At some point
   after Lt. Brown was called, but before he arrived, Officer Raley
   called for another unit. Officers Garcia and Scicluna responded to
   this call. While Officers Burleson, Raley, and Ohlde waited for the
   additional units, Scott continued to bang on the walls, shake his
   door, and make threats to the officers.
          At some point after Lt. Brown arrived, the decision was made
   to arrest Scott. The decision was made based on the assault by
   threat made earlier in the evening, Scott’s history of violent and
   suicidal behavior, his unstable mental state, the possibility that
   Scott was high on drugs, and concern that Scott would harm his
   parents or himself if left in the residence. When the Officers told
   Cindy Rockwell that they may have to breach the door to effectuate
   an arrest, she suggested that she would wait until morning to get a
   mental-health warrant. The Officers, having determined that Scott
   was a threat, decided that it would be unsafe to leave him in the
   home until morning. The Officers had determined that Scott had
   barricaded himself inside of his room. After making repeated
   unsuccessful attempts to convince Scott to come out of the room, the
   police decided to breach the door.
          At the time that the breach was made, Officer Scicluna was
   positioned at the door to kick it in. Lt. Brown ordered Scicluna to
   get low to stay out of the line of possible gunfire. Lt. Brown was
   holding a pepperball gun, and stood in the doorway to the bathroom
   across the hall from Scott’s bedroom, behind Officer Scicluna. From
   the perspective of somebody facing the door into Scott’s room from
   the hallway, Officers Burleson and Ohlde were positioned on the
   right side of the door, and Officer Raley was positioned on the left
   side of the door, near Lt. Brown. Officer Garcia was positioned by
   the back door. Richard and Cindy Rockwell were in the converted
   garage. One of the officers had his gun drawn at the time of the



                                    3
   Case: 10-11053   Document: 00511697420       Page: 4   Date Filed: 12/15/2011



                                  No. 10-11053

      breach. The door was breached sometime between 9:12 and 9:16
      p.m.
             Once the door was breached, Scott, holding two eight-inch
      serrated knives, rushed towards Lt. Brown and attacked him with
      the knives. Officer Burleson saw the knives and yelled “knives” to
      warn his fellow officers. Lt. Brown began to fire multiple rounds at
      Scott with the pepperball gun. Lt. Brown was able to deflect a
      number of these attacks with his pepperball gun. During the
      scuffle, Scott pushed Lt. Brown back into the bathroom with enough
      force that the commode broke. Scott then turned and began to run
      after Officer Scicluna while still swinging his knives. Scott swung
      the knives at Officer Scicluna, injuring him. At about this time, the
      officers shot at Scott.
             Officer Burleson fired one shot which hit Scott in the
      abdomen. Officer Raley fired three shots, two of which hit Scott.
      One of Officer Raley’s shots created stip[p]ling on Scott’s neck,
      which is generally indicative of a shot fired two feet or less from the
      target. Scott fell down in front of Officer Scicluna. Officer Scicluna
      fired one shot, which hit Scott in the chin and neck. Officer Garcia
      fired either once or twice, but did not hit Scott. Officers Ohlde and
      Lt. Brown did not fire any shots from their firearms. In total six or
      seven shots were fired. The shots were mostly fired in rapid
      succession. Four of the shots hit Scott, and one hit Officer Raley.
      No party suggests that Scott had a gun or shot Officer Raley. Scott
      received wounds to the chin, neck, forearm, and abdomen.
             At approximately 9:16, the Officers called for EMS and
      reported that Scott had been shot. Scott was pronounced dead at
      10:04 p.m.
      On February 13, 2008, the Rockwells, individually and on behalf of their
son’s estate, sued the officers for excessive force, and assault and battery. The
Rockwells later amended their complaint to add claims against the officers for
unlawful entry. On June 10, 2008, the magistrate judge recommended to the
district court that the officers’ motion for summary judgment be granted. On
August 26, 2008, the district court adopted the magistrate judge’s report and
recommendation, overruled the Rockwells’ objections, and entered summary
judgment in favor of the officers. The Rockwells timely appealed.



                                        4
     Case: 10-11053   Document: 00511697420     Page: 5    Date Filed: 12/15/2011



                                  No. 10-11053

              II. JURISDICTION & STANDARD OF REVIEW
        This Court has jurisdiction under 28 U.S.C. § 1291 and reviews a grant of
summary judgment de novo, applying the same standard as the district court.
Quality Infusion Care, Inc. v. Health Care Serv. Corp., 628 F.3d 725, 728 (5th
Cir. 2010). Summary judgment is proper when “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when the evidence
is such that a reasonable jury could return a verdict for the non-moving party.
Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 417 (5th
Cir.2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)). We view
all disputed facts and inferences in the light most favorable to the non-movant.
Hill, 587 F.3d at 233.     Furthermore, we may affirm a grant of summary
judgment “on any basis supported by the record.” TIG Specialty Ins. Co. v.
Pinkmonkey.com Inc., 375 F.3d 365, 369 (5th Cir. 2004).
                               III. DISCUSSION
A.      Excessive Force
        The Rockwells argue that the district court erred in granting summary
judgment to the officers on the excessive-force claims on the basis of qualified
immunity. “The doctrine of qualified immunity protects government officials
‘from liability from civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). Therefore, the qualified-immunity
inquiry has two prongs: (1) whether an official’s conduct violated a constitutional
right of the plaintiff, and (2) whether that right was clearly established at the
time of the violation. Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010)
(citing Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009)). “A court may rely



                                         5
   Case: 10-11053      Document: 00511697420      Page: 6   Date Filed: 12/15/2011



                                    No. 10-11053

on either prong of the defense in its analysis.” Id. (citing Manis, 585 F.3d at
843).
        The burden is on the Rockwells to rebut the officers’ qualified-immunity
defense “by establishing a genuine fact issue as to whether the [officers’]
allegedly wrongful conduct violated clearly established law.”            Id.   (citing
Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005)). To prove that the
officers violated Scott’s Fourth Amendment right to be free from the use of
excessive force, the Rockwells must show: “(1) an injury (2) which resulted from
the use of force that was clearly excessive to the need and (3) the excessiveness
of which was objectively unreasonable.” Hill, 587 F.3d at 243 (citing Williams
v. Bramer, 180 F.3d 699, 704 (5th Cir. 1999)).
        As in other Fourth Amendment contexts, the “reasonableness” inquiry is
objective: “the question is whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S.
386, 397 (1989). “The ‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Id. at 396. “The calculus of reasonableness must
embody allowance for the fact that police officers are often 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.
        “An officer’s use of deadly force is not excessive, and thus no constitutional
violation occurs, when the officer reasonably believes that the suspect poses a
threat of serious harm to the officer or to others.” Manis, 585 F.3d at 843 (citing
Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 382 (5th Cir. 2009)). “The
excessive force inquiry is confined to whether the [officer or another person] was
in danger at the moment of the threat that resulted in the [officer’s use of deadly

                                           6
   Case: 10-11053   Document: 00511697420     Page: 7     Date Filed: 12/15/2011



                                 No. 10-11053

force].” Bazan v. Hidalgo Cnty., 246 F.3d 481, 493 (5th Cir. 2001) (citing Fraire
v. City of Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992) (“[R]egardless of what
had transpired up until the shooting itself, [the suspect’s] movements gave the
officer reason to believe, at that moment, that there was a threat of physical
harm.”)).
      In this case, the evidence shows that after the officers breached the door
to Scott’s room, Scott ran out of his room and toward the officers, who were
positioned in a small hallway. Scott, who was a relatively large man, held an
eight-inch knife in each hand. Burleson saw the knives and warned the other
officers that Scott was armed. Scott charged at Brown, who discharged his
pepperball gun at Scott in an attempt to prevent him from cutting or stabbing
any of the officers. During the ensuing scuffle, Scott pushed Brown into the
bathroom with enough force to shatter the toilet. Scott then turned toward
Scicluna and began swinging the knives at him. Scicluna suffered lacerations
to his left arm and right shoulder. The parties disagree about when the first
shot was fired, but the evidence, even when viewed in the light most favorable
to the Rockwells, shows that all of the shots were fired after Scott charged out
of his room with a deadly weapon in each hand in the direction of the officers.
Under the totality of the circumstances, then, it was reasonable for the officers
to believe that Scott posed a significant and imminent threat of serious physical
harm to one or more of the officers. Consequently, the officers’ decision to
respond to that threat with deadly force was justified.
      In response, the Rockwells argue that the officers’ use of deadly force
contravenes the Supreme Court’s decision in Tennessee v. Garner, 471 U.S. 1
(1985). In Garner, the Court held that it was unreasonable for a police officer
to use deadly force to prevent the escape of a suspect when the suspect did not
pose an immediate threat to the officer or other persons. Id. at 11–12. In that
case, the suspect was not armed, not known to be dangerous, and fleeing. By

                                       7
   Case: 10-11053    Document: 00511697420       Page: 8   Date Filed: 12/15/2011



                                   No. 10-11053

contrast, the officers in this case confronted the polar opposite set of facts: Scott
was armed with two eight-inch knives; the officers knew that he suffered from
mental-health problems, had previously exhibited violent behavior, and was
pounding on the walls of his room and yelling obscenities at the officers; and
when he was shot, Scott was not fleeing from the officers, but running toward
them. Accordingly, the holding in Garner is not controlling.
      Second, the Rockwells contend that the magistrate judge’s reasoning
ignores the test set forth in Graham v. Connor. 490 U.S. 386. In Graham, the
Supreme Court explained that in deciding if a particular seizure is reasonable,
courts must give “careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and whether he
is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396.
The Rockwells suggest that the magistrate judge gave too little weight to the
minor nature of the crime that Scott had allegedly committed—misdemeanor
assault by threat—and the fact that Scott was not attempting to evade arrest by
flight. But neither the Supreme Court nor this Court has ever held that all of
the Graham factors must be present for an officer’s actions to be reasonable;
indeed, in the typical case, it is sufficient that the officer reasonably believed
that the suspect posed a threat to the safety of the officer or others.
      Third, the Rockwells urge this Court to view the officers’ breach of the
locked door to Scott’s room as the actual moment of the use of deadly force
because it “carried a substantial risk of causing serious bodily harm” and was
the immediate but-for cause of the resulting altercation between Scott and the
officers. Under this construction, the officers would not have been justified in
using deadly force because, at the time of the breach of the door, Scott was
barricaded in his room and could not have physically harmed the officers. But
a breach of a door, in and of itself, does not create a substantial risk of serious

                                         8
     Case: 10-11053   Document: 00511697420     Page: 9   Date Filed: 12/15/2011



                                   No. 10-11053

bodily harm, and the Rockwells have failed to present any Supreme Court or
Fifth Circuit case that draws the concept of “deadly force” so broadly. In
addition, the Rockwells’ argument that the breach of the door necessarily caused
the shooting that followed is nothing more than speculation.            Thus, the
magistrate judge correctly found that the “breach of the door was neither the
moment where deadly force was employed nor did Scott’s death result directly
and only from the breach of the door.”
        Lastly, the Rockwells, relying on case law from other circuits, urge this
Court to examine the circumstances surrounding the forced entry, which may
have led to the fatal shooting, in evaluating the reasonableness of the officers’
use of deadly force. This argument is unavailing. It is well-established that
“[t]he excessive force inquiry is confined to whether the [officer or another
person] was in danger at the moment of the threat that resulted in the [officer’s
use of deadly force].” Bazan, 246 F.3d at 493. At the time of the shooting, Scott
was engaged in an armed struggle with the officers, and therefore each of the
officers had a reasonable belief that Scott posed an imminent risk of serious
harm to the officers. We need not look at any other moment in time.
        Accordingly, the officers’ use of deadly force was objectively reasonable.
Because we hold that Scott’s Fourth Amendment right to be free from the use of
excessive force was not violated, we need not consider the issue of whether that
right was clearly established. See Brown, 623 F.3d at 253.
B.      Assault and Battery
        Second, regarding the assault-and-battery claims, the Rockwells argue
that the district court erred in granting summary judgment in favor of the
officers on the basis of state-law official immunity. In Texas, “to prevail on a
claim for civil assault, the plaintiff must establish the same elements required
for criminal assault.”      Appell v. Muguerza, 329 S.W.3d 104, 110 (Tex.
App.—Houston [14th Dist.] 2010, pet. filed) (citation omitted). Accordingly, “a

                                         9
  Case: 10-11053    Document: 00511697420     Page: 10    Date Filed: 12/15/2011



                                  No. 10-11053

person commits civil assault if he ‘intentionally, knowingly, or recklessly causes
bodily injury to another.’” Id. (quoting Tex. Penal Code Ann. § 22.01(a)(1)). “A
person also commits civil assault if he ‘intentionally or knowingly causes
physical contact with another when the person knows or should reasonably
believe that the other will regard the contact as offensive or provocative.’” Id.
(quoting Tex. Penal Code Ann. § 22.01(a)(3)).
      Official immunity “is an affirmative defense”; it protects government
employees “from suit arising from the performance of their (1) discretionary
duties in (2) good faith as long as they are (3) acting within the scope of their
authority.” City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 2004)
(citation omitted). The only question in this case is whether the Garland police
officers acted in good faith. The test for good faith is “derived substantially”
from the test for qualified immunity under federal law. Id. at 656; see also
Meadours v. Ermel, 483 F.3d 417, 424 (5th Cir. 2007) (“The ‘good faith’ test
applied by Texas law in determining official immunity is evaluated under
substantially the same standard used for qualified immunity determinations in
§ 1983 actions.”). The main difference, however, is that official immunity does
not incorporate the requirement that the right alleged to have been violated be
clearly established. Cantu v. Rocha, 77 F.3d 795, 808–09 (5th Cir. 1996) (citing
Chambers, 883 S.W.2d at 657). Rather, Texas’s good-faith test “focuses solely on
the objective legal reasonableness of the officer’s conduct.” Id. at 809 (citing
Chambers, 883 S.W.2d at 656–57).
      Therefore, to prove their good faith, the officers in this case must show
that “a reasonably prudent officer, under the same or similar circumstances,
could have believed” that the decision to use deadly force against Scott was
justified. Chambers, 883 S.W.2d at 656 (emphasis added). To controvert the
officers’ summary-judgment proof on good faith, the Rockwells “must do more
than show that a reasonably prudent officer could have [acted differently];

                                       10
     Case: 10-11053     Document: 00511697420          Page: 11     Date Filed: 12/15/2011



                                        No. 10-11053

[instead, they] must show that no reasonable person in the [officers’] position
could have thought the facts were such that they justified [the officers’] acts.”
Id. at 657 (citations and internal quotation marks omitted).
        As explained above, the officers’ use of deadly force against Scott was
objectively reasonable under the totality of the circumstances. Therefore, we
affirm the district court’s grant of official immunity to the officers on the
Rockwells’ assault-and-battery claims.
C.      Unlawful Entry
        Third, the Rockwells contend that the district court erred in granting
summary judgment in favor of the officers on the unlawful-entry claims. In
essence, the Rockwells argue that the officers’ breach of Scott’s door constituted
an independent violation of Scott’s rights under the Fourth Amendment.
Specifically, the Rockwells claim that the officers violated (i) Scott’s right to be
free from warrantless entry to arrest for a misdemeanor and (ii) Scott’s right to
be free from a warrantless misdemeanor arrest. We hold that the officers are
entitled to qualified immunity on all of the Rockwells’ unlawful-entry claims.2
        1. Warrantless Entry
        Under the Fourth Amendment, a warrantless intrusion into a person’s
home is “presumptively unreasonable unless the person consents, or unless
probable cause and exigent circumstances justify” the intrusion. Gates, 537 F.3d
at 420 (citations and internal quotation marks omitted). “Law enforcement
officers may enter a home without a warrant to render emergency assistance to
an injured occupant or to protect an occupant from imminent injury.” Id. at 421
(quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).
        On the issue of consent, we find that Scott did not consent to the
warrantless entry of his room.             To be sure, the officers argue that Scott

        2
       We also reject the Rockwells’ claim that the officers’ entry violated article 15.25 of the
Texas Code of Criminal Procedure. That provision is inapplicable to this case.

                                               11
  Case: 10-11053       Document: 00511697420          Page: 12     Date Filed: 12/15/2011



                                       No. 10-11053

consented to the warrantless entry when he told the officers to “come on in,” and
that it was reasonable for the officers to believe that this statement constituted
effective consent.       But this argument relies on a deceptively selective
presentation of the facts. Scott made the statement “come on in” in the middle
of a tirade that also contained obscenities, threats, provocations, incoherent
yelling, and several inconsistent statements with respect to consent.3                      In
addition, despite Scott’s purported consent, he never unlocked the door to his
room; his actions were in direct conflict with the consent the officers claim he
gave. We conclude that no reasonable officer could have believed that Scott had
given his consent. See, e.g., United States v. Kelly, 913 F.2d 261, 266–67 (6th
Cir. 1990) (explaining that words of consent are likely ineffective when they are
coupled with inconsistent statements, or accompanied by the withholding or
denial of the means of effectuating that consent).
       On the issue of exigent circumstances, however, we conclude that the law
at the time of the entry did not clearly establish that the officers were
unreasonable in believing that the threat Scott posed to himself constituted an
exigent circumstance.4 As noted, Scott had been diagnosed as suicidal and had
attempted suicide on more than one occasion, suffered from schizophrenia and
bipolar disorder, and at the time of the incident, had not taken his medication
for several days. When the officers asked Mrs. Rockwell what Scott would likely
do if they were to leave without detaining Scott, she answered that she did not
know. Meanwhile, Scott had barricaded himself in his room, and his mental

       3
         A few examples: “Fuck you. I ain’t opening shit.” “Fuck you. You ain’t my boss. I
ain’t scared of you. . . . Come in here. I’m ready for y’all.” “Bring it on, I ain’t no chump.”
       4
         See Pierce v. Smith, 117 F.3d 866, 871 (5th Cir. 1997) (“[W]here the complained of
conduct is a law enforcement warrantless search of a residence, qualified immunity turns not
only on whether it was then clearly established that such a search required probable cause and
exigent circumstances, but also on whether it was then ‘clearly established that the
circumstances with which’ the officer ‘was confronted did not constitute probable cause and
exigent circumstances.’” (quoting Anderson v. Creighton, 483 U.S. 635, 640–41 (1987)).

                                              12
  Case: 10-11053        Document: 00511697420           Page: 13     Date Filed: 12/15/2011



                                        No. 10-11053

instability was becoming increasingly apparent as he pounded the walls, shook
the door, and hurled foul threats at the officers.
       Only a handful of courts of appeals and district courts have addressed
whether the threat a suspect poses to himself may constitute an exigent
circumstance; each of these courts concluded either (i) that the threat the
suspect posed to himself did constitute an exigent circumstance5 or (ii) that the
issue was not clearly established.6 None of these courts concluded that the
threat the suspect posed to himself did not constitute an exigent circumstance.
Cf. Russo, 953 F.2d at 1044 (noting that the court (i.e., the Sixth Circuit) was not
aware of “a single case indicating that an officer’s attempt to rescue what the
officers believes to be a suicidal person does not constitute exigent




       5
          Russo v. City of Cincinnati, 953 F.2d 1036, 1043–44 (6th Cir. 1992) (holding that
officers were entitled to qualified immunity on plaintiffs’ warrantless-entry claims, and that
plaintiff had failed to show that exigent circumstances did not exist under clearly established
law, where suspect was mentally disturbed and possessed two knives, radio call had described
suspect as suicidal, and suspect had turned out lights and gone silent immediately before
officers’ decision to enter); DuVall v. City of Santa Monica, 42 F.3d 1399, 1994 WL 684501, *1
(9th Cir. 1994) (mem.) (unpublished) (concluding that exigent circumstances justified
warrantless entry where officers knew that suicidal man inside his trailer home was armed
and had threatened to kill himself, because “officers reasonably feared for [suicidal man’s]
safety as well as that of neighbors and themselves”); Conway v. Battelle, No. 4:04-CV-569,
2006 WL 897142, *12 (E.D. Mo. Mar. 30, 2006) (concluding that exigent circumstances
justified warrantless entry because “an objectively reasonable officer at the scene could have
believed that lives within the residence, including the suicidal subject and the distraught
woman, were threatened and thus that immediate police action was necessary”); Sepatis v.
City & Cnty. of S.F., 217 F. Supp. 2d 992, 1000 (N.D. Cal. 2002) (“Exigent circumstances may
exist where a party appears to be suicidal.”); Adams v. Mustang Police Dep’t, No. 07-CV-1113,
2009 WL 152580, *8 (W.D. Okla. Jan. 21, 2009).
       6
          Roberts v. Spielman, 643 F.3d 899, 906 (11th Cir. 2011) (holding that officer was
entitled to qualified immunity because plaintiff had “cited no binding authority that clearly
established that probable cause and exigent circumstances immediately evaporate once an
officer performing a welfare check for a possibly suicidal person sees that the person is alive”);
Escobedo v. City of Fort Wayne, No. 1:05-CV-424, 2008 WL 1971405, *41 (N.D. Ind. May 5,
2008) (“The Plaintiff does not cite any case indicating that a suicidal person, like Escobedo,
does not create exigent circumstances. Nor does she point to any closely analogous case.”).

                                               13
  Case: 10-11053       Document: 00511697420         Page: 14     Date Filed: 12/15/2011



                                       No. 10-11053

circumstances”).7 Furthermore, this Court has come close to addressing the
issue only once before, in an unpublished opinion and without elaboration. See
United States v. Butler, 209 F.3d 719, 2000 WL 284027, *1 (5th Cir. 2000) (per
curiam) (unpublished) (“Harris County Sheriff’s Department Deputies lawfully
entered Butler’s residence either because of the exigent circumstances presented
by his girlfriend’s alleged attempted suicide or because Butler gave them consent
to enter the house and go up to the bedroom.”).
       In light of the above case law and the overall dearth of binding Supreme
Court and Fifth Circuit case law directly on point, we conclude that, at the
time of the incident in this case, it was not clearly established that it was
unreasonable for the officers to believe that the threat Scott posed to himself
constituted an exigent circumstance. Consequently, we hold that the officers are
entitled to qualified immunity on the Rockwells’ claim for warrantless entry.
       2. Warrantless Arrest
       The Rockwells also claim that the officers had no probable cause to arrest
Scott for a misdemeanor because the officers had not personally witnessed the
crime. As noted, at one point during the evening, before the officers arrived at
the scene, Scott emerged from his room and raised his fist as if to hit his mother.
Although the officers did not personally witness this misdemeanor, the officers’
attempted arrest of Scott for a misdemeanor was not clearly unlawful under the
circumstances. At the time of the incident in 2005, the law was not clearly
established on whether a warrantless arrest for a misdemeanor not committed
in the presence of the arresting officer violates the Fourth Amendment. Indeed,
just one year before the incident, in an unpublished decision from 2004, this
Court held that the Supreme Court had yet to “specifically consider[ ]” the issue.
United States v. Williams. 111 F. App’x 221 (5th Cir. 2004). Because the law at

       7
        See also Ewolski v. City of Brunswick, 287 F.3d 492, 505 (6th Cir. 2002) (reaffirming
Russo and stating that the court “is not aware of any such case that has issued since Russo”).

                                             14
  Case: 10-11053   Document: 00511697420    Page: 15   Date Filed: 12/15/2011



                                No. 10-11053

the time of the incident was unsettled, the officers are entitled to qualified
immunity on the Rockwells’ claim for warrantless arrest.
                            IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment on all claims.
      AFFIRMED.




                                     15
  Case: 10-11053    Document: 00511697420      Page: 16    Date Filed: 12/15/2011



                                   No. 10-11053

HAROLD R. DeMOSS, JR., Circuit Judge, specially concurring:
      We hold today that the six police officers who breached Scott Rockwell’s
bedroom door and ultimately shot him to death are entitled to qualified
immunity under federal law and official immunity under Texas state law.
Noting that the state of the law in these particular circumstances remains
relatively primitive, I join the majority opinion in full. I write separately to
express disapproval of and disappointment with the officers’ actions during
the course of this sad incident.
      The salient facts are these. The first officer arrived at Scott’s residence
at 8:45 p.m. and five other officers arrived in the next few minutes. They
knew that Scott was a bipolar schizophrenic; that he was off his medication
and perhaps on illegal drugs; that he had threatened his parents in the past
and he had done so again that night; and that he had been taken into custody
in the past. Yet they also knew that they had not witnessed him commit a
crime; that he had not harmed anyone; that his parents did not want him
arrested that night or harmed in any way; and that he had locked himself
inside of his own room away from his parents and any other person. While the
officers knew he had attempted suicide in the past, they had no indication
that he intended on hurting himself that night or that he had knives in his
room. Nevertheless, less than 30 minutes after the first officer arrived at the
residence, Scott lay dying from four gunshot wounds.
      It is undisputed that Scott was in no position to harm any other person
while locked in his bedroom. Yet the officers escalated the situation before
even 30 minutes had passed by breaching his bedroom door without a
warrant and with firearms drawn. As I see it, they provoked a man they knew
to be mentally ill into a violent reaction. They did not allow for any time to
defuse the situation or implement the safest procedures possible to take him
into custody. Preventing a possible suicide is a worthy goal, but an armed

                                        16
  Case: 10-11053       Document: 00511697420         Page: 17     Date Filed: 12/15/2011



                                       No. 10-11053

entry that heightens the risk to the potential victim’s life certainly is not the
best way to accomplish that goal.
       Patience, judgment, and discretion are highly important virtues for law
enforcement personnel to possess; in my judgment the officers exercised none
of them in this case. While their conduct is not legally actionable, neither is it
admirable. I urge the City of Garland police department and other law
enforcement agencies to better prepare officers for foreseeable volatile
situations involving mentally ill citizens and to practice negotiation
techniques or less-than-lethal arrest procedures that will not needlessly risk
the lives of those who seem to be mentally unable to control themselves.8
Insanity is a defense our legal system offers to mentally ill defendants; it is
not an invitation for law enforcement personnel to take unnecessary actions
that heighten the risk of harm or death to mentally ill suspects.
       Scott’s mental illness certainly added a tragic dynamic to his life, but it
did not need to cause his death. In my opinion, the officers should have been
trained to use better judgment in their approach to volatile and unfortunate
situations such as this one. This entire case should have been avoided. Scott
should be alive today—perhaps in a medical facility or under court
supervision, but alive nonetheless. All this being said, the majority is correct
in its legal judgments. As such, I concur.




       8
         More effective and less lethal methods of capture and control are currently used in
prisons and with wild animals—e.g., protective shields or police gear, nets, tranquilizers—and
should also be options in situations such as these.

                                             17
