                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                    F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     November 9, 2006

                          _______________________                Charles R. Fulbruge III
                                                                         Clerk
                                No. 06-30019
                          _______________________

      CHIARRA CARRIERE BACQUE, INDIVIDUALLY AND ON BEHALF OF
             KARTER BACQUE, ON BEHALF OF KASE BACQUE,
                    ON BEHALF OF LINSEY BACQUE,

                                                      Plaintiff-Appellee,

                                  versus

                        CHAD LEGER, ETC; ET AL.,

                                                                 Defendants;

              CHAD LEGER, IN HIS OFFICIAL CAPACITY AS
           CHIEF OF POLICE; CITY OF SCOTT, ON BEHALF OF
                  POLICE DEPARTMENT CITY OF SCOTT;
     BYRON ROMERO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
    DAVID SONNIER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY,

                                                    Defendant-Appellants.



            Appeal from the United States District Court
                    Western District of Louisiana
                           No. 6:04-CV-1427


Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.

EDITH H. JONES, Chief Judge:*

           This   court    has   carefully   considered    the    appeal     of

Officers Sonnier and Romero, which asserts that the district court

erred in denying qualified immunity from § 1983 liability for the

events that led to the death of suspect Ken Bacque.


     *
            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opinion should not be published and is not precedent except under the limited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.
           This court has interlocutory jurisdiction over issues of

law related to qualified immunity. Atteberry v. Nocona Gen. Hosp.,

430 F.3d 245, 251 (5th Cir. 2005) (citing Behrens v. Pelletier,

516 U.S. 299, 311, 116 S. Ct. 834, 841 (1996)).      If the appeal

turns, however, on disputed material issues of fact, we lack

jurisdiction.   Johnson v. Johnson, 385 F.3d 503, 523 (5th Cir.

2004).   In this case, the issues subject to appeal are, first, the

materiality of fact disputes, and second, the objective reason-

ableness of the officers’ conduct.    Because the officers properly

supported their motion for summary judgment on qualified immunity,

the Plaintiffs bore the burden of negating the defense. Johnson v.

Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293,

300 (5th Cir. 2004).    Consequently, Plaintiffs were required to

demonstrate genuine issues of material fact that, if believed,

established that the officers used deadly force clearly excessive

to the need to restrain Ken Bacque.    See Tennessee v. Garner, 471

U.S. 1, 105 S. Ct. 1694, (1985) (use of deadly force not excessive

if officer reasonably believed the suspect posed a threat to

others).    To rebut the officers’ claim of qualified immunity,

Plaintiffs were further required to demonstrate that the illegality

of the officers’ conduct was plain, such that it was objectively

unreasonable, under the facts and circumstances confronting them,

for the officers to have used deadly force.    Ikerd v. Blair, 101

F.3d 430, 433 (5th Cir. 1996) (citing Graham v. Connor, 490 U.S.

386, 395, 109 S. Ct. 1865, 1871 (1989)).

                                 2
          Having reviewed the parties’ contentions in light of

these standards, we conclude that Plaintiffs have not overcome

Officer Sonnier’s assertion of qualified immunity.     No material

facts are in dispute.   The only relevant fact to this inquiry is

that Officer Sonnier “froze” during the confrontation with Ken

Bacque.   There are neither allegations nor evidence that Sonnier

exerted any force, much less excessive force, against Ken Bacque.

Plaintiffs have cited no authorities, and we are aware of none,

where an officer’s inaction during a police-suspect confrontation

resulted in his liability for use of excessive force. The district

court erred in denying immunity to Officer Sonnier.

          As for Officer Romero, however, it appears that the facts

surrounding his shooting of Ken Bacque are highly controverted.

There is evidence, if believed, that Officer Romero shot Ken Bacque

while he stood motionless with his knife at his side and had ceased

to menace anyone; that Officer Romero stood at least ten to forty

feet away from Ken Bacque; that Ken Bacque was not threatening

anyone at this time; that no officer warned Ken Bacque to drop his

knife; and that Ken Bacque no longer posed a physical threat to

Officer Romero, or to anyone else at the time he was shot.   Because

material facts surrounding the shooting are in dispute, we lack

jurisdiction over Romero’s appeal and cannot conclude as a matter

of law that he did not violate Bacque’s Fourth Amendment rights or

that he is entitled to qualified immunity.



                                3
              Each qualified immunity case must be analyzed according

to its peculiar facts.      Consequently, the cases cited on behalf of

Officer Romero are of little assistance here, principally because

the suspects in those cases were charging toward or fighting with

the officers and the suspects possessed or were thought to possess

guns.

              For the foregoing reasons, the judgment denying qualified

immunity to Officer Sonnier is REVERSED; the appeal of Officer

Romero   is    DISMISSED.     This   matter   is   REMANDED   for   further

proceedings as appropriate.

              REVERSED in part, DISMISSED in part, and REMANDED.




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