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

                                                                 FILED
                                                               August 1, 2013

                                No. 12-20296                   Lyle W. Cayce
                                                                    Clerk

ROBERT R. TOLAN; MARIAN TOLAN,

                                          Plaintiffs - Appellants

v.

JEFFREY WAYNE COTTON,

                                          Defendant - Appellee



               Appeals from the United States District Court
                    for the Southern District of Texas


                ON PETITION FOR REHEARING EN BANC
                   (Opinion 25 April 2013, 713 F.3d 299)

Before JONES, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:
      The court having been polled, and a majority of the judges who are in
regular active service and not disqualified not having voted in favor (Fed. R.
App. P. And 5th Cir. R. 35), rehearing en banc is DENIED.
      Voting for en-banc rehearing were: Judge James L. Dennis, Judge Jennifer
Walker Elrod, and Judge James E. Graves, Jr. Voting against were: Chief Judge
Carl E. Stewart, Judge Carolyn Dineen King, Judge E. Grady Jolly, Judge W.
Eugene Davis, Judge Edith H. Jones, Judge Jerry E. Smith, Judge Edith Brown
                                 No. 12-20296

Clement, Judge Edward C. Prado, Judge Priscilla R. Owen, Judge Leslie H.
Southwick, Judge Catharina Haynes, and Judge Stephen A. Higginson.
      Upon the filing of this order, the clerk shall issue the mandate forthwith.
ee Fed. R. App. P. 41(b).


ENTERED FOR THE COURT:


_/s/ Rhesa Hawkins Barksdale____
RHESA HAWKINS BARKSDALE
UNITED STATES CIRCUIT JUDGE




                                       2
                                   No. 12-20296

DENNIS, Circuit Judge, joined by GRAVES, Circuit Judge, dissenting:
      I respectfully but emphatically dissent from the court’s failure to rehear
this case en banc. The panel opinion contains three serious errors that should be
corrected by this court en banc or by the Supreme Court: (1) The panel opinion
erroneously assumes that the Supreme Court’s decision in Pearson v. Callahan,
555 U.S. 223 (2009), authorizes it to skip the first prong of the Saucier v. Katz,
533 U.S. 194 (2001), analysis and grant Sergeant Jeffrey Wayne Cotton qualified
immunity, despite there being no argument or evidence that Cotton’s actions
were based on his reasonable mistake of law; consequently, the panel opinion
does not correctly apply either prong of the Saucier analysis, but uses a confused
jumble of parts of each prong to justify its decision and reach the wrong
conclusion; (2) The panel opinion erroneously and misleadingly represents that
there is no genuine issue as to any material fact in this case; (3) The panel
opinion erroneously and misleadingly represents facts that are genuinely
disputed as being undisputed.
                                         1.
      In Saucier v. Katz, the Court mandated a two-step sequence for resolving
government officials’ qualified immunity claims. First, “a court must decide
whether the facts that a plaintiff has alleged (see Fed. R. Civ. P. 12(b)(6), (c)) or
shown (see Rules 50, 56) make out a violation of a constitutional right.” Pearson,
555 U.S. at 232(citing Saucier, 533 U.S. at 201). Second, “if the plaintiff has
satisfied this first step, the court must decide whether the right at issue was
‘clearly established’ at the time of defendant’s alleged misconduct.” Id. Qualified
immunity is applicable unless the official’s conduct violated a clearly established
constitutional right. Id. (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
      In Pearson, the Court held that while the sequence set forth in Saucier is
often appropriate, it should no longer be regarded as mandatory. Id. at 236. “The
judges of the district courts and the courts of appeals should be permitted to

                                         3
                                        No. 12-20296

exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Id. Importantly, the Court in
Pearson did not change the substance or the purpose of the two Saucier prongs.
It merely recognized that lower courts should have the discretion to decide
whether following the two prongs in sequence as originally set forth by Saucier
is worthwhile in particular cases. Id. at 242.
       The panel opinion, in a very confused and erroneous manner, claims that
it “do[es] not reach whether Sergeant Cotton’s shooting Robbie Tolan violated his
Fourth Amendment right against excessive force (as noted, the district court
relied on this first prong of qualified-immunity analysis).” Tolan v. Cotton, 713
F.3d 299, 306 (5th Cir. 2013). Instead, the panel opinion concludes that “showing
violation of a constitutional right does not end the inquiry when qualified
immunity properly has been invoked. Sergeant Cotton is entitled, through
summary judgment, to qualified immunity under the second prong of the
analysis.” Id.
       After the panel opinion states that it will use only the Saucier second
prong analysis to decide this case, one would expect it to address whether
Cotton made a reasonable mistake of law in using deadly force against Robbie,
for that is the purpose of the second prong.1 But it does not do so. Indeed, the
panel opinion does not correctly apply either Saucier’s substantive first-prong
factual analysis or its second-prong legal analysis. Instead, it applies an
amalgam of the two: something that it called a second-prong legal analysis but

       1
         See Saucier, 533 U.S. at 205 (“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. An officer might
correctly perceive all of the relevant facts but have a mistaken understanding as to whether
a particular amount of force is legal in those circumstances. If the officer’s mistake as to what
the law requires is reasonable, however, the officer is entitled to the immunity defense.”)

                                               4
                                   No. 12-20296

which has all the earmarks of a first-prong fact-intensive inquiry. As a result,
the panel opinion, in making a purported second-prong inquiry, fails entirely to
assess whether an objective officer in Cotton’s position could have made a
mistake of law and instead performs what appears to be an erroneous, partial,
and distorted Saucier first-prong analysis to conclude that summary judgment
based on qualified immunity is proper. See Tolan, 713 F.3d at 307-08. Why does
the panel opinion announce that, unlike the district court, it will not use the first
Saucier prong to start its analysis of this case? A proper application of the first
prong, including a proper application of summary judgment law as well as a
proper application of Graham v. Connor, 490 U.S. 386 (1989), and Pearson would
have correctly led only to the conclusion that there are genuine issues as to
material facts whether Cotton objectively and reasonably feared for his life when
he shot to kill Robbie; and that the parties’ submissions, properly viewed
favorably to the plaintiff, could show that the officer’s conduct violated clearly
established Fourth Amendment law. Why does the panel opinion say that it will
use the Saucier second prong only, but end up using mostly first-prong language
in its reasoning? A Saucier second-prong inquiry was not an appropriate starting
point because Cotton never testified that he shot Robbie because he made a
reasonable mistake as to the legal constraints on his particular conduct in this
case. If the panel had asked and answered these questions it could have avoided
its mistakes and the unfortunate circuit precedent it makes in this case.
                                         2.
      In pursuing its confused Saucier second prong analysis, the panel opinion
further compounds its errors by representing that several genuinely disputed
material facts are really undisputed and by incorrectly representing that the
disputed facts are not material. Specifically, the panel opinion presumes that the
Tolans’ front porch was not well lit despite the plaintiffs’ evidence that it was
reasonably well lit by lights on the porch, in the yard, and from Officer John

                                         5
                                  No. 12-20296

Edwards’s car spotlight and his flashlight; that Marian Tolan was
argumentative and refused orders to remain calm, though she and her husband
testified that she was calm and merely explained to both officers that she and
her husband owned the Nissan and house and that Robbie lived there with
them; that Cotton merely guided Marian toward the garage door despite the
Tolans’ testimony that he dragged her and shoved her into the metal garage
door; and that Robbie moved to intervene in Cotton’s treatment of Marian,
despite the Tolans’ testimony and physical blood-spot evidence that indicated
that Robbie had not moved toward Cotton when Cotton shot him. The parties
also dispute whether Cotton slammed Marian against the garage door before or
after Robbie began to get up, turned toward Cotton, and told him to unhand his
mother; whether Robbie was kneeling or crouching when Cotton shot him; where
Robbie’s hands were and whether he reached toward his waistband; and whether
Cotton issued any verbal warning before shooting Robbie with deadly force.
Ultimately, the panel opinion’s pro-defendant recitation of facts fails to address
evidence that, when viewed in the light most favorable to the plaintiff, creates
genuine issues of material fact as to whether an objective officer in Cotton’s
position could have reasonably and objectively believed that Robbie posed an
immediate, significant threat of substantial injury to him.
      Resolving the disputed facts reasonably in favor of the plaintiffs, the
evidence shows that when Cotton arrived at the Tolans’ residence, the Nissan
that Edwards had misidentified as stolen was parked in front of the house,
Robbie and Cooper were prone on the porch and on the ground, respectively,
Bobby—Robbie’s father—had his hands against the other car in the driveway,
and Marian—Robbie’s mother, a middle-aged woman in her pajamas whom
Cotton believed to be the homeowner—was explaining to Edwards that she and
Bobby owned the Nissan while Edwards had his pistol trained on Robbie and
Cooper. Marian and Bobby had already explained to Edwards that he was


                                        6
                                  No. 12-20296

mistaken in believing the Nissan to be stolen, that they owned the house and the
Nissan, that Robbie lived with them, and that Robbie and Cooper were their son
and nephew, respectively. Robbie was prone on the porch toward and near the
front door of the house. When Cotton arrived, Marian explained to Cotton that
she and Bobby owned the Nissan, the house, and that Robbie was their son.
Cotton immediately ordered Marian to move to the garage door. She began to
comply, then stopped to again explain the officers’ mistake to Cotton. Cotton
grabbed her arm, pulled her to the garage, and slammed her up against it so
hard that she slid to the ground. At this point, Cotton had a clear and full view
of Robbie who was lying approximately 15 to 20 feet away. When Robbie saw and
heard his mother being thrown against the garage door, he pushed himself up
and turned around to face Cotton while saying, “get your fucking hands off my
mom.” Without issuing any warning, Cotton unholstered his weapon, pointed it
at Robbie, and shot at him three times, striking him once in the chest. The force
of the bullet drove him backwards against the front door, leaving his blood stain
near the front door. The bullet collapsed Robbie’s lung and lodged in his liver.
Robbie was squatting or on his knees when he was shot. Robbie had no weapon
and had not made any sort of reaching movement toward his waistband.
Edwards trained his weapon on Robbie when he heard Robbie speak, but did not
issue a warning or fire his weapon. The officers found, belatedly, that the Nissan
had not been reported stolen and that neither Robbie, Cooper, nor any of the
Tolans were armed.
      Taking the undisputed facts of this case and resolving the disputed facts
reasonably in the nonmovant plaintiffs’ favor, the summary judgment record
clearly shows that a jury reasonably could find that Cotton used excessive force
against Robbie and Marian and that he did not warrant qualified immunity
because the law was so clearly established that an objectively reasonable officer
in Cotton’s position would have known that his actions violated Robbie and


                                        7
                                  No. 12-20296

Marian’s Fourth Amendment rights. Only by failing to adhere to proper
summary judgment law and by misapplying the two-prong qualified immunity
analysis was the panel opinion able to conclude otherwise.
                                 CONCLUSION
      The panel opinion erroneously interprets the Supreme Court’s decision in
Pearson to authorize it not only to skip the first prong of the Saucier analysis,
but also to misapply as its Saucier second-prong analysis an amalgam of both
prongs, so that it applies neither prong fully and correctly. Also, the panel
opinion misapplies summary-judgment law by dismissing undisputed facts as
inconsequential and resolving material facts genuinely at issue in the
defendant’s favor rather than in favor of the plaintiff. If the panel opinion had
applied the Saucier prongs correctly it would have concluded that the facts that
the plaintiffs have shown make out a violation of their constitutional right to be
free from excessive and deadly force by a police officer; that this right was
“clearly established” at the time that Cotton violated their rights by using
excessive force against Marian Tolan and deadly force against Robbie Tolan; and
that Officer Cotton is not entitled to qualified immunity because, under the facts
shown by the parties’ submissions, a reasonable jury could find that an
objectively reasonable officer would have known that Robbie Tolan did not pose
an immediate, significant threat to the officer’s life and that the officer’s use of
deadly force without forewarning was therefore not justifiable.




                                         8
