     Case: 09-50821     Document: 00511097618          Page: 1    Date Filed: 04/30/2010




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

                                                  FILED
                                                                            April 30, 2010

                                       No. 09-50821                         Lyle W. Cayce
                                                                                 Clerk

DIANE SANCHEZ, Individually and as Representative of the Estate of Chad
Stephen Sanchez; MELISSA VALENZUELA, as Next Friend for Chad Stephen
Sanchez and Jacob Bo Sanchez, Minor Children; AMANDA LARA, as Next
Friend for Breauna Lara, Minor Child,

                                                   Plaintiffs - Appellees
v.

MATT FRALEY, Individually and in his Official Capacity; MICHAEL
HEDRICK, Individually and in his Official Capacity,

                                                   Defendants - Appellants




                   Appeal from the United States District Court
                        for the Western District of Texas
                               USDC 7:08-CV-115


Before KING, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
        Chad Stephen Sanchez was shot and killed during an encounter with law
enforcement officers in Midland, Texas. His survivors brought this action under
42 U.S.C. § 1983, claiming that Sanchez’s Fourth Amendment rights were
violated when Detective Matt Fraley and Sergeant Michael Hedrick


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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unnecessarily used deadly force during his apprehension. The district court
denied the officers’ motion for summary judgment, finding that genuine issues
of material fact precluded dismissal on the basis of qualified immunity. We
affirm.
      The doctrine of qualified immunity operates to shield “government officials
performing discretionary functions . . . from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982) (citing Procunier v. Navarette, 434 U.S. 555, 565 (1978);
Wood v. Strickland, 420 U.S. 308, 322 (1975)). “[A]n order denying qualified
immunity, to the extent it turns on an ‘issue of law,’ is immediately appealable.”
Behrens v. Pelletier, 516 U.S. 299, 311 (1996) (quoting Mitchell v. Forsyth, 472
U.S. 511, 530 (1985)). The limitation to issues of law circumscribes the scope of
our review: “a defendant, entitled to invoke a qualified immunity defense, may
not appeal a district court’s summary judgment order insofar as that order
determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact
for trial.” Johnson v. Jones, 515 U.S. 304, 319–20 (1995); accord Kinney v.
Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc) (“We do have jurisdiction,
but only to the extent that the appeal concerns the purely legal question whether
the defendants are entitled to qualified immunity on the facts that the district
court found sufficiently supported in the summary judgment record.”). “‘Thus,
a defendant challenging the denial of a motion for summary judgment on the
basis of qualified immunity must be prepared to concede the best view of the
facts to the plaintiff and discuss only the legal issues raised by the appeal.’”
Good v. Curtis, — F.3d —, 2010 WL 1038547, at *3 (5th Cir. 2010) (quoting
Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007)).         “Within this limited
appellate jurisdiction, this court reviews a district court’s denial of a motion for
summary judgment on the basis of qualified immunity in a § 1983 suit de novo.”

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Id. (alterations and internal quotation marks omitted).
       Assessing a defendant’s entitlement to qualified immunity consists of two
separate inquiries. First, we ask whether the facts alleged, taken in the light
most favorable to the party asserting the injury, show that the defendant’s
conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201
(2001), overruled in part by Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). We
then ask whether the right violated was clearly established at the time. Id.
While it is “often appropriate” to answer these two questions sequentially, courts
are vested with “sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first.” Pearson, 129 S. Ct. at
818.
       The Supreme Court has stated that “there can be no question that
apprehension by the use of deadly force is a seizure subject to the reasonableness
requirement of the Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1, 7
(1985).    “[C]laims that law enforcement officers have used excessive
force—deadly or not—in the course of an arrest, investigatory stop, or other
‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and
its ‘reasonableness’ standard . . . .” Graham v. Connor, 490 U.S. 386, 395 (1989).
In addressing the two aspects of qualified immunity, we must “make two
‘overlapping objective reasonableness inquiries.’” Lytle v. Bexar County, Tex.,
560 F.3d 404, 410 (5th Cir. 2009) (alteration omitted) (quoting Saucier, 533 U.S.
at 210), cert. denied, — S. Ct. —, 2010 WL 182938 (Mar. 22, 2010) (No. 09-851).
       We must first answer the constitutional violation question by
       determining whether the officer[s’] conduct met the Fourth
       Amendment’s reasonableness requirement . . . . If we find that the
       officer[s’] conduct was not reasonable under the Fourth Amendment,
       we must then answer the qualified immunity question by
       determining whether the law was sufficiently clear that a
       reasonable officer would have known that his conduct violated the
       constitution. In other words, at this second step, we must ask the


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      somewhat convoluted question of whether the law lacked such
      clarity that it would be reasonable for an officer to erroneously
      believe that his conduct was reasonable. Despite any seeming
      similarity between these two questions, they are distinct inquiries
      under Saucier, and we must conduct them both.
Id. In undertaking this analysis, we consider separately the conduct of Detective
Fraley and Sergeant Hedrick. See Meadours v. Ermel, 483 F.3d 417, 421–22 (5th
Cir. 2007).
      To succeed on a claim of excessive force, “[a] plaintiff must prove injury
suffered as a result of force that was objectively unreasonable.” Mace v. City of
Palestine, 333 F.3d 621, 624 (5th Cir. 2003). Ordinarily, “[t]o determine whether
a seizure was objectively reasonable . . . , we ask ‘whether the totality of the
circumstances justified that particular sort of search or seizure.’” Flores v. City
of Palacios, 381 F.3d 391, 398 (5th Cir. 2004) (alteration omitted) (quoting
Garner, 471 U.S. at 8–9). However, “[w]hen an officer uses deadly force, our
‘objective reasonableness’ balancing test is constrained.” Id. at 399. “It is
objectively unreasonable to use deadly force ‘unless it is necessary to prevent a
suspect’s escape and the officer has probable cause to believe that the suspect
poses a significant threat of death or serious physical injury to the officer or
others.’” Id. (alteration omitted) (quoting Garner, 471 U.S. at 3); see also Garner,
471 U.S. at 11 (“Where the suspect poses no immediate threat to the officer and
no threat to others, the harm resulting from failing to apprehend him does not
justify the use of deadly force to do so. . . . A police officer may not seize an
unarmed, nondangerous suspect by shooting him dead.”).
      With respect to Detective Fraley, the district court held that the parties
had raised genuine issues of fact that bore directly on the reasonableness of his
use of force. It is undisputed that Sanchez was unarmed when he was shot and
killed.   Detective Fraley admitted firing several shots at Sanchez.        Jessica
Chavez, an eyewitness, testified in her deposition that she saw a uniformed


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officer fire multiple shots at Sanchez while Sanchez had his hands at his sides
and had ceased running. Detective Fraley testified in his deposition that he
knew Sanchez was a suspect in a double homicide, and Detective Fraley also
testified that he had heard on the police radio that Sanchez had a gun and had
forcibly attempted to enter somebody’s house. He testified further that Sanchez
was digging in his waistband and pointing his hands under his shirt as though
aiming a weapon.      However, we must construe the facts in the light most
favorable to Sanchez. See Lytle, 560 F.3d at 409 (“[W]e ‘are required to view the
facts and draw reasonable inferences in the light most favorable to the party
opposing the summary judgment motion.’” (quoting Scott v. Harris, 550 U.S. 372,
378 (2007))). Accepting, as we must, Chavez’s testimony as true, then Sanchez
did not commit any “undisputed actions,” Manis v. Lawson, 585 F.3d 839, 845
(5th Cir. 2009), justifying Detective Fraley’s use of deadly force at the moment
he encountered Sanchez, and we are compelled to agree with the district court
that “a rational jury could find that [Detective] Fraley’s use of lethal force was
excessive” and that he “is not entitled to qualified immunity under the first
prong” of the Saucier inquiry. See Bazan ex rel. Bazan v. Hidalgo County, 246
F.3d 481, 493 (5th Cir. 2001) (“The excessive force inquiry is confined to whether
the [officer] was in danger at the moment of the threat that resulted in the . . .
shooting . . . .” (citing Fraire v. City of Arlington, 957 F.2d 1268, 1276 (5th Cir.
1992))).
      With respect to Sergeant Hedrick, the district court similarly determined
that a jury could find his use of deadly force excessive under the circumstances.
It based this determination on the fact that Sergeant Hedrick admitted to
intentionally discharging his rifle into the back of Sanchez’s head after Sanchez
had been shot twice, was lying on the ground, and was being subdued by at least
two officers. The officers cite their own deposition testimony that Sanchez, while
on the ground, was pressing his right arm up against the inside of his shirt as

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though aiming a firearm. However, it is undisputed that Sanchez was unarmed
during the encounter, and a bullet had pierced his right forearm, fractured his
right ulna, exited his right forearm, and reentered his right biceps muscle. A
jury would be entitled to take the injuries to Sanchez’s right arm—as well as the
officers’ status as defendants in this lawsuit—into account in deciding whether
the encounter occurred as the officers testified. Cf. Bazan, 246 F.3d at 492 (“In
the case at hand, the evidence the Trooper claims is uncontradicted and
unimpeached comes for the most part, if not exclusively, from an interested
witness—Trooper Vargas.” (citing Abraham v. Raso, 183 F.3d 279, 287 (3d Cir.
1999); Gooden v. Howard County, Md., 954 F.2d 960, 971 (4th Cir. 1992)
(Phillips, J., dissenting))).
      Under the second step of our qualified immunity analysis, we ask “whether
the right was clearly established at the time of the conduct.” Lytle, 560 F.3d at
410 (citing Saucier, 533 U.S. at 201). “‘The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear
to a reasonable officer that his conduct was unlawful in the situation he
confronted.’” Id. (quoting Saucier, 533 U.S. at 202); see also Brosseau v. Haugen,
543 U.S. 194, 199 (2004) (stating that, in appropriate cases, “these standards [on
the use of deadly force] can ‘clearly establish’ the answer . . .” (citing Hope v.
Pelzer, 536 U.S. 730, 738 (2002))). The relevant conduct in this case occurred on
April 23, 2007, but it was clearly established well before that date that “deadly
force violates the Fourth Amendment unless ‘the officer has probable cause to
believe that the suspect poses a threat of serious physical harm, either to the
officer or to others,’” Bazan, 246 F.3d at 488 (quoting Garner, 471 U.S. at 11),
and that the threat of serious physical harm must be “immediate,” Garner, 471
U.S. at 11. The evidence, when viewed in the light most favorable to Sanchez,
shows that Sanchez did not pose an “immediate” threat to the officers or to
others, and we agree with the district court that the officers are not entitled to

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qualified immunity under the second Saucier inquiry.1
      The only arguably novel twist to this case is the officers’ argument that the
Supreme Court’s decision in Scott v. Harris, 550 U.S. 372 (2007), compels a
different result. Specifically, the officers argue that the version of events attested
to by Chavez is “impossible,” “an obvious fiction,” and not “competent evidence,”
relying for those conclusions principally on their own deposition testimony. We
disagree that Scott allows us to disregard Chavez’s testimony.
      In Scott, Harris, a motorist, sped away instead of pulling over after he was
detected speeding. Id. at 374. Deputy Scott joined the pursuit in response to a
radio broadcast, following Harris on a high-speed chase lasting several minutes.
Id. at 374–75. Scott ended the chase by pushing his bumper into the rear of
Harris’s vehicle, causing Harris to lose control, run down an embankment,
overturn, and crash. Id. at 375. Harris was rendered a quadriplegic as a result,
and he sued Scott under § 1983, alleging excessive force. Id. at 375–76. The
district court denied Scott’s motion for summary judgment based on an assertion
of qualified immunity, finding genuine issues of material fact, and, on


      1
         We confronted a similar situation in Reyes v. Bridgwater, in which the shooting at
issue predated those in this case by more than six months. No. 09-10076, 2010 WL 271422,
at *1 (5th Cir. Jan. 22, 2010). The officer urged that the relevant law was not clearly
established unless there was “a case with exactly the same facts finding a constitutional
violation.” Id. at *4. We rejected that contention, stating:
             The cases on deadly force are clear: an officer cannot use deadly force
      without an immediate serious threat to himself or others. Here, the facts are
      unclear; was there such an immediate threat? Bridgwater’s version of the facts
      would say “yes,” while the other witnesses’ versions would say “no.” The case
      presented here is not one where the law is not clearly established but rather one
      where the facts are not clearly established. . . . Accordingly, we reverse the
      summary judgment in favor of Bridgwater on qualified immunity grounds as to
      the § 1983 claims of the Ceballos Family.
Id. at *5. This case is analogous to Reyes: the facts, taken in the light most favorable to
Sanchez, show that Sanchez posed no immediate serious threat, and we are therefore faced
with the type of case contemplated by Brosseau, in which “fair warning” is found “in the
general tests” of excessive force and deadly force, and the law was clearly established
irrespective of the existence of “a body of relevant case law.” 543 U.S. at 199.

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interlocutory appeal, the Eleventh Circuit affirmed. Id. at 376. The Supreme
Court noted that the case presented “an added wrinkle” to the summary
judgment posture: “existence in the record of a videotape capturing the events
in question.” Id. at 378. Harris had argued that he was not a danger during the
chase, but the Court observed that “[t]he videotape quite clearly contradict[ed]
the version of the story told by [Harris] and adopted by the Court of Appeals.”
Id. The Court then decided to take the objective videotape evidence into account
in rejecting Harris’s characterization of his driving:
      When opposing parties tell two different stories, one of which is
      blatantly contradicted by the record, so that no reasonable jury
      could believe it, a court should not adopt that version of the facts for
      purposes of ruling on a motion for summary judgment.
             That was the case here with regard to the factual issue
      whether [Harris] was driving in such fashion as to endanger human
      life. [Harris]’s version of events is so utterly discredited by the
      record that no reasonable jury could have believed him. The Court
      of Appeals should not have relied on such visible fiction; it should
      have viewed the facts in the light depicted by the videotape.
Id. at 380–81. Taking the videotape into account, the Court concluded that Scott
had acted reasonably as a matter of law and reversed the denial of summary
judgment. Id. at 386.
      Other courts considering Scott have concluded that it represents, at most,
a narrow exception to the jurisdictional bar imposed by Johnson v. Jones. The
Third Circuit has noted that Scott represents a narrow exception, stating that
the situation involving
      a videotape of undisputed authenticity depicting all of the
      defendant’s conduct and all of the necessary context that would
      allow the Court to assess the reasonableness of that conduct . . . may
      represent the outer limit of the principle of Johnson v.
      Jones—where the trial court’s determination that a fact is subject
      to reasonable dispute is blatantly and demonstrably false, a court of
      appeals may say so, even on interlocutory review.



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Blaylock v. City of Philadelphia, 504 F.3d 405, 414 (3d Cir. 2007). Similarly, the
Sixth Circuit has noted that Scott “recognized an apparent exception to th[e]
jurisdictional limitation,” that “where the trial court’s determination that a fact
is subject to reasonable dispute is blatantly and demonstrably false, a court of
appeals may say so, even on interlocutory appeal.” Moldowan v. City of Warren,
578 F.3d 351, 370 (6th Cir. 2009) (internal quotation marks omitted) (quoting
Wysong v. Heath, 260 F. App’x 848, 853 (6th Cir. 2008)), cert. filed, 78 U.S.L.W.
3567 (U.S. Mar. 19, 2010) (No. 09-1149); see also Carter v. City of Wyoming, 294
F. App’x 990, 992 (6th Cir. 2008) (“[T]he Third Circuit’s approach [in Blaylock]
represents a principled way to read Johnson and Scott together and to correct
the rare blatant and demonstrable error without allowing Scott to swallow
Johnson.” (alterations and internal quotation marks omitted) (quoting Wysong,
260 F. App’x at 853)).
      Our circuit has not yet addressed whether Scott carves out an exception,
and we need not do so today. If such an exception does exist, then it does not
apply on these facts. The district court was presented with a quintessential fact
issue—the officers’ deposition testimony differed in a material respect from
Chavez’s deposition testimony. See Peterson v. City of Fort Worth, Tex., 588 F.3d
838, 847 (5th Cir. 2009) (“[T]he conflicting testimony . . . raises unresolved
questions about what occurred. We therefore hold that the evidence creates a
genuine issue of material fact as to whether, from the perspective of a reasonable
officer on the scene, the knee strike was excessive and therefore objectively
unreasonable.”), cert. filed, 78 U.S.L.W. 3501 (U.S. Feb. 16, 2010) (No. 09-983).
This case is thus a far cry from Scott, where a videotape blatantly and
demonstrably contradicted Harris’s version of events. To the extent that the
officers are challenging Chavez’s credibility and personal knowledge,2 this is

      2
       The officers have pointed out, for example, that Chavez did not see Detective Fraley
bump Sanchez with his car, that she could not see Sanchez when he was on the ground, and

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similarly inappropriate for determination on summary judgment. See Tarver v.
City of Edna, 410 F.3d 745, 753 (5th Cir. 2005) (“Any credibility determination
made between the officers’ and Tarver’s version of events is inappropriate for
summary judgment.” (citing Bazan, 246 F.3d at 492)).3
       For the foregoing reasons, we DENY Sanchez’s motion to dismiss the
appeal, and we AFFIRM the district court’s order denying summary judgment
on the basis of qualified immunity.




that she did not hear Sergeant Hedrick’s shot to Sanchez’s head.
       3
          The officers also argue that Sanchez’s unsworn original complaint is a binding
admission, akin to an admission under Rule 36(b) of the Federal Rules of Civil Procedure, that
may not be varied by Chavez’s account. This argument is misguided. The officers are free to
insist that the facts are the way that Sanchez’s original complaint asserts, rather than the way
that Chavez has testified, but we question whether they truly wish to insist on a set of facts
that forms the basis for Sanchez’s allegations of their liability.

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