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

                                                                    FILED
                                                                   April 25, 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
                           USDC No. 4:09-CV-1324


Before JONES, BARKSDALE, and SOUTHWICK, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge.
      Primarily at issue in this appeal from a summary judgment is qualified
immunity’s being granted for a police officer’s use of deadly force against a felony
suspect, injuring him. This action concerns the various claims of four plaintiffs
against numerous defendants; the appeal is from a Federal Rule of Civil
Procedure 54(b) judgment (partial final judgment capable of immediate appeal).
This appeal involves only two of the plaintiffs and one of the defendants.
      After summary judgment, based on qualified immunity, was awarded
police officers Jeffrey Wayne Cotton and John C. Edwards against the four
plaintiffs, the Rule 54(b) judgment was entered for the two Officers. Only Robert
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                                  No. 12-20296

R. Tolan (Robbie Tolan) and his mother, Marian Tolan, appeal from that
judgment, however; and they challenge only the judgment in favor of Sergeant
Cotton. In doing so, they contest the underlying summary judgment, based on
qualified immunity, awarded Sergeant Cotton against their excessive-force
claims. Because no genuine dispute of material fact exists for whether Sergeant
Cotton’s directing deadly force at Robbie Tolan and non-deadly force at Marian
Tolan was objectively unreasonable in the light of clearly-established law, the
Rule 54(b) judgment in favor of Sergeant Cotton is AFFIRMED.
                                         I.
      For the reasons provided infra, the following facts are presented, as they
must be on summary-judgment review, in the light most favorable to Robbie and
Marian Tolan.
      While patrolling shortly before two o’clock in the morning on 31 December
2008, in Bellaire, Texas, Officer Edwards noticed a black Nissan turn abruptly
onto a residential street. Officer Edwards became suspicious immediately
because 12 vehicles had been burglarized in Bellaire the previous night, and he
knew the street terminated in a cul-de-sac. Surveilling the Nissan from a
distance, Officer Edwards observed Robbie Tolan and Anthony Cooper park on
the street in front of a house and exit the vehicle. Officer Edwards drove past
the vehicle and entered its license-plate number into his mobile data terminal
(MDT). Officer Edwards mistakenly keyed an incorrect character; his entry
resulted in a match with a stolen vehicle of the same make and approximate
year of manufacture. The MDT sent a message automatically to other police
units, alerting them Officer Edwards had identified a stolen vehicle.
      Officer Edwards next approached the vehicle and, observing Robbie Tolan
and Cooper carrying items from the vehicle to the house, illuminated them with
his cruiser’s spotlight. Officer Edwards exited his cruiser, drew his service pistol
and flashlight, identified himself as a police officer, and ordered Robbie Tolan

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                                 No. 12-20296

and Cooper to “come here”. When Robbie Tolan and Cooper cursed Officer
Edwards and refused to comply, Officer Edwards stated to them his belief the
black Nissan was stolen and ordered them onto the ground.
      Shortly thereafter, Robbie Tolan’s parents, Bobby and Marian Tolan,
exited the house through the front door. Again, Officer Edwards stated his belief
that Robbie Tolan and Cooper had stolen the Nissan; Robbie Tolan and Cooper
complied with Officer Edwards’ ordering them onto the ground only after Marian
and Bobby Tolan ordered them to do so. Bobby Tolan identified Robbie Tolan as
his son, and Marian Tolan stated the Nissan belonged to them. Bobby Tolan
yelled at Cooper and Robbie Tolan to stay down; and Marian Tolan walked
repeatedly in front of Officer Edwards’ drawn pistol, insisting no crime had been
committed. Dealing with four people in a chaotic and confusing scene, Officer
Edwards radioed for expedited assistance. Sergeant Cotton responded and,
hearing the tension in Officer Edwards’ voice, believed him to be in danger.
Sergeant Cotton arrived approximately one and one-half minutes after Officer
Edwards’ arrival.
      Upon his arrival, Sergeant Cotton observed: Officer Edwards with pistol
drawn; Bobby Tolan standing to Officer Edwards’ left, next to a sport-utility
vehicle parked in the Tolans’ driveway, where Officer Edwards had ordered him
to stand; Marian Tolan “moving around” in an agitated state in front of Officer
Edwards; and Cooper lying prone. Sergeant Cotton drew his pistol and moved
in to assist. Although Sergeant Cotton did not immediately observe Robbie
Tolan, whose form was obscured by a planter on the front porch, Officer Edwards
informed Sergeant Cotton that “the two on the ground had gotten out of a stolen
vehicle”. A single gas lamp in front of the house and two motion lights in the
driveway illuminated the scene. In his deposition, Sergeant Cotton described
the gas lamp as “decorative” and the front porch, where Robbie Tolan was lying,



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                                 No. 12-20296

as “fairly dark”; in his deposition, Bobby Tolan stated the gas lamp provided
enough light to identify a person in the front yard “within reason”.
      Robbie Tolan was lying face-down on the porch, with his head toward the
front door and his arms extended. As noted, a planter on the front porch
obscured Robbie Tolan’s position from Sergeant Cotton’s view.
      Sergeant Cotton recognized the immediate need to handcuff and search
the felony suspects, but Marian Tolan’s movement and demeanor frustrated the
Officers’ doing so; moreover, Marian Tolan continued to insist the car was not
stolen, and stated they had lived in the house for 15 years. In an attempt to
control the situation, Sergeant Cotton ordered Marian Tolan to move to the
garage door; she refused, and became argumentative. Sergeant Cotton again
requested Marian Tolan to move out of the Officers’ way, and stated the
situation would be worked out after they concluded their investigation. Marian
Tolan’s protestations continued; when Sergeant Cotton ordered her to “get
against the garage”, she refused, stating: “Me? Are you kidding?”.
      In response, Sergeant Cotton holstered his pistol, clutched Marian Tolan’s
arm, placed his other hand in the small of her back, and attempted to move her
to the garage door. Despite her jerking her arm away and screaming “get your
hands off me”, Sergeant Cotton physically moved her to the garage door so a
search of Robbie Tolan and Cooper could be conducted. From this angle,
Sergeant Cotton then observed Robbie Tolan lying prone and facing away from
Sergeant Cotton; the complaint for this action alleges the distance between
Sergeant Cotton and Robbie Tolan was approximately 15 to 20 feet.
      Sergeant Cotton’s method of handling Marian Tolan angered Robbie Tolan;
upon seeing his mother pushed into the garage door and hearing a metallic
impact, Robbie Tolan yelled “get your fucking hands off my mom!”, pulled his
outstretched arms to his torso, and began getting up and turning toward
Sergeant Cotton. Fearing Robbie Tolan was reaching towards his waistband for

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a weapon, Sergeant Cotton drew his pistol and fired three rounds at Robbie
Tolan, striking him once in the chest and causing serious internal injury. At the
time, Robbie Tolan was wearing a dark zippered jacket, known as a “hoodie”,
which was untucked and hung over the top of his trousers, concealing his
waistband. A subsequent search revealed Robbie Tolan was unarmed. Between
Sergeant Cotton’s arriving on the scene and his discharging his pistol, a mere 32
seconds elapsed.
      In April 2009, Sergeant Cotton was charged in a state-court indictment
with one count of aggravated assault by a public servant. A jury acquitted
Sergeant Cotton in May 2010. As noted infra, excerpts from Sergeant Cotton’s
criminal trial, including testimony by Sergeant Cotton, Officer Edwards, and the
Tolans, are in the summary-judgment record.
      In May 2009, following Sergeant Cotton’s being indicted that April, the
Tolans and Cooper filed this action, inter alia, pursuant to 42 U.S.C. § 1983
against Sergeant Cotton, Officer Edwards, and the City of Bellaire, claiming,
inter alia: Sergeant Cotton and Officer Edwards violated Robbie and Marian
Tolan’s right to freedom from excessive force (under Fourth Amendment,
incorporated in Fourteenth); and both Officers acted in furtherance of a City of
Bellaire official policy of racial profiling and discrimination.   The Officers
invoked qualified immunity in their answer, and, after discovery, moved for
summary judgment on that basis.
      The district court, in an extremely detailed and well-reasoned opinion,
granted the Officers’ summary-judgment motion, based on qualified immunity;
it held the Tolans and Cooper had not shown a constitutional violation, as
required by the first of two prongs for qualified-immunity analysis, discussed
infra. Tolan v. Cotton, 854 F.Supp. 2d 444, 478 (S.D. Tex. 2012). Finding there
was “no just reason for delay”, it entered final judgment for the Officers under
Federal Rule of Civil Procedure 54(b).

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                                        II.
      For an action involving multiple parties, a district court may enter final
judgment for fewer than, inter alia, all parties if it “expressly determines that
there is no just reason for delay”. FED. R. CIV. P. 54(b). “If the language in the
order appealed from . . . reflects the district court’s unmistakable intent to enter
a partial final judgment under Rule 54(b), nothing else is required to make the
order appealable.” Kelly v. Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d 1218,
1220 (5th Cir. 1990) (en banc). Re-stated, a Rule 54(b) judgment is a final
decision capable of immediate appellate review pursuant to 28 U.S.C. § 1291.
Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 583-84 (1980);
Elizondo v. Green, 671 F.3d 506, 509 (5th Cir. 2012).
      Of the four plaintiffs, only Robbie and Marian Tolan contest the summary
judgment. Moreover, they only contest its being awarded Sergeant Cotton.
      A summary judgment is reviewed de novo. Burge v. Parish of St.
Tammany, 187 F.3d 452, 464 (5th Cir.1999). Summary judgment is proper if
movant shows: no genuine dispute as to any material fact; and being entitled to
judgment as a matter of law. FED . R. CIV. P. 56(a). “A dispute is genuine if the
evidence is sufficient for a reasonable jury to return a verdict for the nonmoving
party.” Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012) (internal
citation and quotation marks omitted). “A fact issue is material if its resolution
could affect the outcome of the action.” Id. (internal citation and quotation marks
omitted). In that regard, all facts and inferences are construed in the light most
favorable to non-movants. E.g., Cooper Tire & Rubber Co. v. Farese, 423 F.3d
446, 454 (5th Cir. 2005). But, for review of a summary judgment upholding
qualified immunity, plaintiff bears the burden of showing a genuine dispute of
material fact. Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005) (qualified-
immunity defense alters summary judgment burden of proof).



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      Extensive discovery has been conducted. Sergeant Cotton supported his
summary-judgment motion with, inter alia: portions of his, Officer Edwards’,
and Robbie, Marian, and Bobby Tolan’s depositions; and portions of Doctor
William Lewinski’s and Lieutenant Albert Rodriguez’ expert-witness depositions,
as well as their declarations, to which their expert reports were attached.
Robbie and Marian Tolan supported their opposition to that motion with, inter
alia: portions of Sergeant Cotton’s and Officer Edwards’ depositions and trial
testimony; portions of Robbie Tolan’s deposition and trial testimony, and his
declaration; portions of Marian and Bobby Tolan’s depositions and trial
testimony; portions of Dr. Lewinski’s deposition; and portions of Lt. Rodriguez’
expert report and deposition.
      Qualified immunity promotes the necessary, effective, and efficient
performance of governmental duties, Harlow v. Fitzgerald, 457 U.S. 800, 807
(1982), by shielding from suit all but the “plainly incompetent or those who
knowingly violate the law”, Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.
2008) (internal citation and quotation marks omitted); Mitchell v. Forsythe, 472
U.S. 511, 526 (1985) (qualified immunity is immunity from suit, not merely an
affirmative defense to liability). As noted, after defendant properly invokes
qualified immunity, plaintiff bears the burden to rebut its applicability.
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002). To abrogate
a public official’s right to qualified immunity, plaintiff must show: first, the
official’s conduct violated a constitutional or statutory right; and second, the
official’s “actions [constituted] objectively unreasonable [conduct] in [the] light
of clearly established law at the time of the conduct in question”. Brumfield, 551
F.3d at 326.
      For an excessive-force claim, plaintiff clears the first prong of the
qualified-immunity analysis at the summary-judgment stage by showing a
genuine dispute of material fact for whether plaintiff sustained: “(1) an injury

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(2) which resulted from the use of force that was clearly excessive to the need
and (3) the excessiveness of which was clearly unreasonable”. Rockwell v.
Brown, 664 F.3d 985, 991 (5th Cir. 2011) (quoting Hill v. Carroll Cnty., 587 F.3d
230, 234 (5th Cir. 2009)).
      For the second prong at the summary-judgment stage, plaintiff must
similarly show a genuine dispute of material fact for two distinct, but
intertwined, elements. “The second prong of the qualified immunity test is []
understood as two separate inquiries:           whether the allegedly violated
constitutional rights were clearly established at the time of the incident; and, if
so, whether the [defendant’s conduct] was objectively unreasonable in the light
of that then clearly established law.” Hare v. City of Corinth, 135 F.3d 320, 326
(5th Cir. 1998) (first emphasis in original) (second emphasis added).
      In the excessive-force context at issue here, although the long-established
two prongs of qualified-immunity analysis contain “objective reasonableness”
elements, those prongs remain distinct and require independent inquiry.
Brumfield, 551 F.3d at 326. Importantly, the sequence of analysis is immaterial,
Pearson v. Callahan, 555 U.S. 223, 236 (2009); qualified immunity may be
granted without deciding the first prong if plaintiff fails to satisfy the second,
Kovacic v. Villarreal, 628 F.3d 209, 213 (5th Cir. 2010). Deciding the second
prong first is often advisable; for example, if, as here, a constitutional right is
claimed to have been violated (first prong), “this approach [of first addressing the
second prong] comports with [the] usual reluctance to decide constitutional
questions unnecessarily”. Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012).
                                        A.
      Contesting the summary judgment based on qualified immunity, Robbie
Tolan contends a genuine dispute of material fact exists for whether Sergeant
Cotton could have reasonably perceived him as a threat which justified the use
of deadly force. He asserts a reasonable officer on the scene should have

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possessed information that Robbie Tolan was neither armed nor dangerous,
thereby reducing the perceived threat level and negating any belief deadly force
was necessary. Along that line, he relies on Marian and Bobby Tolan’s exiting
the house wearing pajamas and insisting Robbie Tolan and Cooper did not steal
the vehicle. Robbie Tolan cites case law from other circuits for the proposition
that this “updated information” negated any impression Sergeant Cotton may
have had that deadly force could be reasonable. He disputes also Sergeant
Cotton’s maintaining Marian Tolan was shoved into the garage door so Sergeant
Cotton could address a perceived threat; instead, Robbie Tolan contends he
reacted because his mother was shoved into the garage door. Finally, asserting
he never reached toward or into his waistband as claimed by Sergeant Cotton,
Robbie Tolan relies on our court’s unpublished opinion in Reyes v. Bridgwater,
362 F. App’x 403 (5th Cir. 2010), for the proposition that this disputed location
of his hands is a genuine dispute of material fact, precluding summary judgment
and, accordingly, mandating reversal.
      The undisputed summary-judgment evidence, however, shows: Officer
Edwards and Sergeant Cotton believed they were dealing with a felony vehicle
theft; multiple burglaries of vehicles had occurred in the area the night prior; the
Tolans’ front porch was not well lit; Robbie Tolan, in spite of Officer Edwards’
having drawn his pistol, disobeyed orders to remain prone while the Officers
attempted to establish order and investigate the situation; and Robbie Tolan’s
moving to intervene in Sergeant Cotton’s separating his mother was preceded
by his shouting “get your fucking hands off my mom!”.
      Viewing the summary-judgment record in the light most favorable to him,
Robbie Tolan has not met his burden to show a genuine dispute of material fact,
Michalik, 422 F.3d at 262, for whether Sergeant Cotton’s conduct was objectively
unreasonable in the light of clearly established law, Brumfield, 551 F.3d at 326.
Accordingly, as discussed infra, and although based on a prong of qualified-

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immunity analysis different from that relied upon by the district court, Sergeant
Cotton is entitled to qualified immunity; his actions being required to “be judged
from the perspective of a reasonable officer on the scene” steers the analysis to
that conclusion. Graham v. Connor, 490 U.S. 386, 396 (1989).
                                        1.
      Exercising the above-referenced “usual reluctance to decide constitutional
questions unnecessarily”, Reichle, 132 S. Ct. at 2093, we do 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).     As discussed above, 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.
                                        2.
       A right is sufficiently clear, and therefore “clearly established”, when
“every ‘reasonable official would have understood that what he is doing violates
that right’”. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quoting Anderson
v. Creighton, 483 U.S. 635, 640 (1987)). “[E]xisting precedent must [] place[] the
statutory or constitutional question beyond debate”. al-Kidd, 131 S. Ct. at 2083.
This “clearly-established” standard balances the vindication of constitutional or
statutory rights and the effective performance of governmental duties by
ensuring officials can “reasonably . . . anticipate when their conduct may give
rise to liability for damages”. Davis v. Scherer, 468 U.S. 183, 195 (1984). As
discussed supra, this second-prong question of whether the law was clearly
established cannot be untethered from the concomitant question of whether the
challenged conduct was objectively unreasonable in the light of that clearly-
established law. Poole, 691 F.3d at 630; see also Saucier v. Katz, 533 U.S. 194,
205 (2001), modified by Pearson v. Callahan, 555 U.S. 223 (2009) (qualified

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immunity under the second prong may attach irrespective of constitutional
violation under the first, which in the excessive-force context includes a separate
objective-reasonableness inquiry).
       It is undisputed that, when Sergeant Cotton shot Robbie Tolan, it was
also clearly established that an officer had the right to use deadly force if that
officer harbored an objective and reasonable belief that a suspect presented an
“immediate threat to [his] safety”. Deville v. Marcantel, 567 F.3d 156, 167 (5th
Cir. 2009); see also Ontiveros v. City of Rosenberg, 564 F.3d 379 (5th Cir. 2009);
Young v. City of Killeen, 775 F.2d 1349 (5th Cir. 1985). Therefore, for Robbie
Tolan to prevent Sergeant Cotton’s having qualified immunity, he must show a
genuine dispute of material fact on whether “every ‘reasonable official would
have understood’” Sergeant Cotton’s using deadly force was objectively
unreasonable under the circumstances and clearly-established law. al-Kidd, 131
S. Ct. at 2083; Poole, 691 F.3d at 630. To be sure, it was clearly established that
shooting an unarmed, non-threatening suspect is a Fourth-Amendment
violation. Tennessee v. Garner, 471 U.S. 1 (1985). But, that is only half of the
equation for second-prong analysis; the remainder depends upon the totality of
the circumstances as viewed by a reasonable, on-the-scene officer without the
benefit of retrospection. Poole, 691 F.3d at 628.
      As explained above, an objectively-reasonable officer in Sergeant Cotton’s
position would have had neither knowledge of, nor reason to suspect, Officer
Edwards’ having mistakenly identified Robbie Tolan’s vehicle as stolen.
Justified in his believing – however erroneously in hindsight – Robbie Tolan and
Cooper had stolen a vehicle, an objectively-reasonable officer in Sergeant
Cotton’s position could have also believed Robbie Tolan’s verbally threatening
him and getting up from his prone position presented an “immediate threat to
the safety of the officers”. Deville, 567 F.3d at 167. Compounding that threat
were the surrounding circumstances: the late hour; recent criminal activity in

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the area; a dimly-lit front porch; Marian Tolan’s refusing orders to remain quiet
and calm; and the Officers’ being outnumbered on the scene. Robbie Tolan
admitted that he drew his outstretched arms toward his chest, did a push-up
maneuver, and began turning to his left to face Sergeant Cotton; under the
above-described circumstances, these actions could have placed an objectively-
reasonable officer in, as Sergeant Cotton testified, fear for his life. Accordingly,
whether Robbie Tolan reached into or toward his waistband does not create a
genuine dispute of material fact on objective reasonableness vel non.
      As part of the support for his summary-judgment motion, Sergeant Cotton
presented expert testimony from Dr. Lewinski and Lt. Rodriguez. In his expert
report, Dr. Lewinski stated that, as a matter of science, an officer has only one-
quarter of one second to recognize a threat and respond accordingly. Likewise,
Lt. Rodriguez stated in his deposition that officers have but a fraction of a second
to react to threats. Further, and in the light of these scientific principles, they
maintained officers cannot be trained to positively identify a weapon before
resorting to deadly force. Robbie Tolan provided no evidence rebutting this
expert evidence; yet, even if he had, an officer’s right to use deadly force when
objectively reasonable under the circumstances is also clearly established and
“beyond debate”, al-Kidd, 131 S. Ct. at 2083 – even when, as here, hindsight
proves underlying assumptions to be erroneous. E.g., Young, 775 F.2d 1349
(qualified immunity where officer fatally shot unarmed driver who reached
under seat); Ontiveros, 564 F.3d 379 (same, where officer fatally shot unarmed
suspect who reached into boot). In short, Sergeant Cotton’s split-second decision
to use deadly force does not amount to the type of “plain[] incompeten[ce]”
necessary to divest him of qualified immunity. Brumfield, 551 F.3d at 326.
      Along that line, Robbie Tolan had clear and obvious warning of Officer
Edwards’ and Sergeant Cotton’s believing deadly force might be required under
the circumstances: both made clear their belief Robbie Tolan’s vehicle was

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stolen; Sergeant Cotton drew his pistol upon his arriving on the scene; and
Officer Edwards continually covered Robbie Tolan and Cooper with pistol drawn
throughout the sequence of events. E.g., Garner, 471 U.S. at 11-12 (deadly force
not unconstitutional when probable cause to believe crime involving threat of
serious physical harm has been committed and, if feasible, suspect warned
deadly force may be used).
      Noteworthy here, Robbie Tolan’s refusing to obey a direct order to remain
prone violated Texas Penal Code § 38.15 and Texas Transportation Code § 542.501
in Sergeant Cotton’s presence; those sections provide: “[a] person commits an
offense” by disrupting or impeding “a peace officer . . . performing a duty or
exercising authority imposed . . . by law”, § 38.15(a)(1); and “[a] person may
not wilfully fail or refuse to comply with a lawful order . . . of a police officer”,
§ 542.501. Such refusal, under the circumstances, could have reinforced an
officer’s reasonably believing Robbie Tolan to be a non-compliant and potentially
threatening suspect. Robbie Tolan could have avoided injury by remaining
prone as Officer Edwards, with pistol drawn, had ordered him to do. Instead, his
shouting and abruptly attempting to approach Sergeant Cotton inflamed an
already tense situation; in the light of his actions at the scene, a genuine dispute
of material fact does not exist regarding whether Sergeant Cotton acted
objectively unreasonably. E.g., Deville, 567 F.3d at 167; Ontiveros, 564 F.3d 379;
Young, 775 F.2d 1349.
      It goes without saying that this occurrence was tragic. But, the Officers’
mistake of fact and Robbie Tolan’s injury do not permit deviating from
controlling law. Accordingly, and because Robbie Tolan has not shown a genuine
dispute of material fact for whether Sergeant Cotton’s shooting him was
objectively unreasonable under clearly-established law, summary judgment
based on qualified immunity was proper.



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                                  No. 12-20296

                                       B.
      Marian Tolan contends the summary judgment for Sergeant Cotton was
improper because a genuine dispute of material fact exists for whether her right
to freedom from excessive force was violated by Sergeant Cotton’s grabbing her
arm and shoving her against the garage door. Viewing the summary judgment
record in the light most favorable to her, Marian Tolan has not created a genuine
issue of material fact on whether Sergeant Cotton’s conduct was objectively
unreasonable in the light of clearly-established law.
                                        1.
      For the reasons stated above, and because the undisputed, material facts
show Sergeant Cotton is entitled to qualified immunity under the second prong
of the qualified-immunity analysis, we need not decide the first prong.
                                        2.
      Officers have a clearly-established right to use “measured and ascending”
responses to control volatile situations while in the discharge of their official
duties. Poole, 691 F.3d at 629 (internal citation and quotation marks omitted).
Marian Tolan likewise violated Texas Penal Code § 38.15 and Texas
Transportation Code § 542.501 by refusing to remain calm and move to the
garage door as Sergeant Cotton ordered, thereby, as provided in § 38.15,
impeding his performing a duty imposed by law and, as provided in § 542.501,
“refus[ing] to comply with [his] lawful order”.
      There is no genuine dispute of material fact that this is what happened.
Sergeant Cotton first used voice commands in an attempt to gain Marian Tolan’s
compliance and to facilitate his securing and searching two felony suspects. E.g.,
Deville, 567 F.3d at 167-68 (officers should attempt voice commands before
resorting to physical force when circumstances permit).         Those commands
having proved ineffectual, Sergeant Cotton used minimal physical force to move
Marian Tolan away from Officer Edwards’ line of sight in an attempt to restore

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                                No. 12-20296

order to a chaotic and confusing scene and to conduct the necessary
investigation.
      Accordingly, Sergeant Cotton’s actions were not objectively unreasonable
in the light of clearly-established law. Summary judgment based on qualified
immunity was proper regarding Marian Tolan.
                                     III.
      For the foregoing reasons, the Rule 54(b) judgment in favor of Sergeant
Cotton is AFFIRMED.




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