     Case: 18-50499       Document: 00515150051        Page: 1    Date Filed: 10/08/2019




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

                                                                              FILED
                                                                          October 8, 2019
                                      No. 18-50499
                                                                           Lyle W. Cayce
                                                                                Clerk

NOBLE COOPER; NORMAN COOPER, ESTATE OF; JENNIFER COOPER;
NATHAN COOPER; CARLY LOPEZ, Individually and as Next Friend of
Nason Cooper and Nevon Cooper, Minors; NASON COOPER, A Minor;
NEVON COOPER, A Minor,

                Plaintiffs - Appellees

v.

OFFICER OLIVER FLAIG; OFFICER ARNOLDO SANCHEZ,

                Defendants - Appellants.



                    Appeal from the United States District Court
                         for the Western District of Texas
                               USDC No. 5:16-CV-77


Before CLEMENT, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
           Officers Oliver Flaig and Arnoldo Sanchez appeal the district court’s
order denying their motion for summary judgment.                     The district court
determined that Flaig and Sanchez were not entitled to qualified immunity.
Because the district court incorrectly applied the qualified immunity standard,
we reverse and render.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-50499    Document: 00515150051    Page: 2   Date Filed: 10/08/2019



                                No. 18-50499


                                       I
      Mr. Nathan Cooper was alone at his parents’ home when his brother, Mr.
Norman Cooper, arrived. Norman, who appeared to be on drugs, pounded on
the door. He eventually broke the chain lock and door frame and entered the
home. Nathan called 911 and explained that he was “scared for his life,” that
Norman “broke in,” and that Nathan did not know if Norman was “going to
hurt [him] or not.” Nathan also told dispatch that Norman was on drugs and
would not let Nathan out of the house. Officers Flaig and Sanchez were
dispatched to the scene. When they arrived, Nathan told Sanchez that he did
not know if Norman had a gun and that Nathan feared Norman when Norman
used drugs.
      Meanwhile, Flaig and Norman were upstairs in the home. Sanchez
eventually joined them. The parties dispute some of what happened upstairs,
but it is undisputed that Flaig and Sanchez deployed their tasers multiple
times in attempts to detain Norman. Flaig and Sanchez were eventually able
to handcuff Norman and they then called a supervisor and emergency medical
services to the scene. Flaig and Sanchez observed that shortly after being
handcuffed Norman became still. This change in demeanor concerned Flaig
and Sanchez and they radioed for emergency services to “step it up.”
Emergency medical services arrived on the scene and reported that Norman
was unresponsive. He was pronounced dead shortly thereafter. An autopsy
revealed that Norman died as a result of methamphetamine intoxication
complicated by a prolonged struggle. Also contributing to his death was an
enlarged heart.
      Appellees, Noble Cooper; The Estate of Norman Cooper; Jennifer Cooper;
Nathan Cooper; Carly Lopez; Nason Cooper; and Nevon Cooper, sued Officers
Flaig and Sanchez alleging, among other things, that they used excessive force.
                                      2
     Case: 18-50499       Document: 00515150051         Page: 3     Date Filed: 10/08/2019



                                       No. 18-50499


Flaig and Sanchez moved for summary judgment arguing that qualified
immunity barred the claim.           The district court concluded that because of
“unsettlement in the law . . . the court cannot find as a matter of law that the
Officers’ use of force was ‘objectively reasonable in light of clearly established
law’” and denied qualified immunity on the excessive force claim.
                                             II
       We have jurisdiction to review this appeal. “[I]nterlocutory appeals from
the denial of summary judgment have been permitted in the qualified-
immunity context for the purpose of resolving the abstract legal question of
whether the lawlessness of a defendant’s alleged acts had been clearly
established at the time of their commission.” Colston v. Barnhart, 146 F.3d
282, 287 (5th Cir. 1998); see also Cole v. Carson, 935 F.3d 444, 452 (5th Cir.
2019) (en banc). 1 Appellees assert that the denial of summary judgment “was
based on . . . material factual issues,” but this is incorrect. The district court
denied summary judgment because “the court [could not] find as a matter of
law that the Officers’ use of force was ‘objectively reasonable in light of clearly
established law at the time the challenged conduct occurred.’” This is a legal
question we have jurisdiction to review. But “[l]ike the district court, we must
view the facts and draw reasonable inferences in the light most favorable to
the plaintiff and ask whether the defendant would be entitled to qualified
immunity on those facts.” Cole, 935 F.3d at 452.



       1 Appellees spend five pages of their brief asking this court to “revisit and eliminate
the collateral order doctrine’s extension to qualified immunity” established in Mitchell v.
Forsyth, 472 U.S. 511 (1985). Appellees urge this court to adopt Justices Brennan and
Marshall’s more narrow reading of the collateral order doctrine prescribed in their Mitchell
dissent. Id. at 343–44 (Brennan, J., dissenting). However, Appellees seemingly fail to
recognize that Mitchell, a United States Supreme Court decision, binds this court. Neither
this panel, nor the Fifth Circuit sitting en banc, can “revisit and eliminate” the Supreme
Court of the United States’ binding precedent.
                                              3
     Case: 18-50499        Document: 00515150051          Page: 4     Date Filed: 10/08/2019



                                        No. 18-50499


                                              III
       The test for qualified immunity has two steps. “In the first we ask
whether the officer’s alleged conduct has violated a federal right; in the second
we ask whether the right in question was ‘clearly established’ at the time of
the alleged violation, such that the officer was on notice of the unlawfulness of
his or her conduct.” Id. at 451. To overcome the qualified immunity defense,
Appellees must show that the law was so clear, under circumstances
reasonably analogous to those Flaig and Sanchez confronted, that no
reasonable officer would have used the amount of force they used. See Brosseau
v. Haugen, 543 U.S. 194, 201 (2004).
       Appellees do not meet this burden. They cannot point to any factually
analogous case that would establish that Flaig and Sanchez’s use of force was
unreasonable. 2       In fact, recent Fifth Circuit precedent involving taser
deployment suggests an officer’s use of force is justified where two or more of
the Graham factors 3 support the use of force. See Pratt v. Harris Cty., 822 F.3d
174, 182 (5th Cir. 2016); Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir.
2012); Batiste v. Theriot, 458 F. App’x 351, 355 (5th Cir. 2012) (unpublished).
At least two of the Graham factors support Flaig and Sanchez’s use of force in
this case. First, it was reasonable for Flaig and Sanchez to suspect Norman


       2 Appellees cite numerous cases, none of which provide analogous facts. See, e.g.,
Ramirez v. Martinez, 716 F.3d 369, 379 (5th Cir. 2013) (denying summary judgment where
only the first Graham factor weighed in favor of force used); Newman v. Guedry, 703 F.3d
757, 764 (5th Cir. 2012) (holding that the tasing of a passenger in a car who “committed no
crime, posed no threat to anyone’s safety, and did not resist the officers or fail to comply with
a command” was objectively unreasonable in light of clearly established law); Anderson v.
McCaleb, 480 F. App’x 768, 773 (5th Cir. 2012) (unpublished) (denying summary judgment
where the officer continued to tase the plaintiff after the plaintiff ceased resisting arrest).
       3 Graham instructed courts to look to: “[1] the severity of the crime at issue, [2]

whether the suspect poses an immediate threat to the safety of the officers or others, and [3]
whether he is actively resisting arrest or attempting to evade arrest by flight” when
evaluating excessive force claims. Graham v. Connor, 490 U.S. 386, 396 (1989).
                                               4
    Case: 18-50499   Document: 00515150051     Page: 5   Date Filed: 10/08/2019



                                No. 18-50499


had committed a crime such as burglary or trespass because Nathan informed
911 dispatch and Sanchez that Norman had broken into the home and was not
allowing Nathan to leave. Second, it was reasonable for Flaig and Sanchez to
believe that Norman posed a threat to himself, Nathan, and Flaig and Sanchez
given Norman’s erratic behavior and Nathan’s communication to dispatch and
Sanchez that he was afraid of Norman.
      The district court correctly determined that because two of the Graham
factors supported the use of force, clearly established law would not have put
a reasonable officer on notice that deployment of a taser under these
circumstances was unreasonable. But the district court nonetheless denied
Flaig and Sanchez’s motion for summary judgment on qualified immunity
grounds. This was legal error. It is exactly because clearly established law
would not have put a reasonable officer on notice that deployment of a taser
under these circumstances was unreasonable that Flaig and Sanchez are
entitled to qualified immunity. The district court erred in denying Flaig and
Sanchez’s motion for summary judgment.
      REVERSED and RENDERED.




                                      5
