*District Judge for the Northern District of Texas, sitting by designation.

**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 circumstancesset forth in 5th Cir.

R. 47.5.4.

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United States Court of Appeals

Fifth Circuit

FILED

March 12, 2007

Charles R. Fulbruge III

Clerk

IN THE

UNITED STATES COURT OF APPEALS

FOR THE

FIFTH CIRCUIT

_____________

No. 06-60059

_____________

ROY A. PASCO, ET AL.,

Plaintiffs-Appellants,

versus

BRAD KNOBLAUCH,

Defendant-Appellee.

_____________

On appeal from the United States District Court for the

Northern District of Mississippi

No. 1:03-CV-179-M-D

_____________

Before DAVIS and STEWART, Circuit Judges, and GODBEY, District Judge.*

PER CURIAM:**

Plaintiffs-Appellants Ray A. Pasco and Brian K. Pasco, by and through their

grandmother and next friend, Beverly A. Pasco (collectively, “Appellants”), appeal the
1The facts at issue here gave rise to an earlier case, Roy Pasco, et al., v. Holly Springs,

No 1:01-CV-247-M-D (N.D. Miss.), aff’d, 101 Fed. Appx. 6 (5th Cir. 2004) (Pasco I). The

district court below appears to have taken implicit judicial notice of the proceedings before

it in Pasco I, and adopted by reference some of the rulings it made in Pasco I. 

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district court’s grant ofsummary judgment in favor of Defendant-AppellantBrad Knoblauch

on their claim that Knoblauch intentionally caused the death of Roy G. Pasco (“Pasco”) in

the course of a high speed car chase, in violation of the Fourth Amendment. We find that

the record taken as a whole raises an issue asto Knoblauch’sintent and reverse and remand.1

Knoblauch at all pertinent times was a police officer for Holly Springs, Mississippi.

While on patrol around 3:00 a.m. on April 29, 2000, Knoblauch began following Pasco.

When Pasco ran a stop sign, Knoblauch attempted to make a stop. Although Pasco initially

pulled over, when Knoblauch left his patrol car and began to walk over to Pasco’s car, Pasco

sped off. Knoblauch returned to his car and began a high speed chase. Knoblauch reported

this to his dispatcher at 3:18 a.m. At 3:19 a.m., Knoblauch was instructed to terminate the

pursuit. At this point, the two sides’ accounts of events diverge.

Knoblauch claims that: (1) he terminated pursuit as instructed; (2) he turned around

and headed back towards town; (3) he encountered Jason Martin, another Holly Springs

officer who had headed out to assist Knoblauch; (4) after conferring with Martin, Knoblauch

again reversed direction and headed back away from Holly Springslooking for a crossstreet

to pinpoint their location for the county sheriff’s department, which was to continue the

pursuit; (5) he drove down some long driveways to see if Pasco had pulled into one; (6) he

noticed gravel in the road, causing him to look more closely, at which point he noticed
2Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). 

3This ruling was in Pasco I and was apparently implicitly adopted in this case by the

district court. It is unclear whether appellants intend to appeal that ruling. It is, in any event,

supported by the record.

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Pasco’s car at the bottom of a ravine alongside the road; and (7) at 3:23 a.m., he notified

dispatch of his discovery. Appellants claim that Knoblauch did not break off the pursuit as

instructed, intentionally struck Pasco’s car from behind, forcing his car off the road and

down into the ravine, killing Pasco.

In support oftheir position, Appellants offered the expert testimony of Lamon Griggs,

an accident reconstruction expert. Griggs offered the following opinions (and/or

observations): (1) it would have been physically impossible for Knoblauch to have seen

Pasco’s car at the bottom of the embankment from inside Knoblauch’s patrol car, as

Knoblauch claimed; (2) “yaw marks,” or scuffs on the pavement, indicate that Pasco’s car

left the road in a side-slip position, traveling from right to left; (3) Pasco’s car did not vault

over the side of the road at high speed, but left the road at a slow enough speed to track down

the embankment; (4) Pasco’s rear bumper bore a scratch and paint had been rubbed off; (5)

Pasco’s car did not travel backwards at any time as it headed down the embankment; and (6)

Pasco’s car was bumped from behind, forcing it off the road and into the ravine. The district

court excluded the last opinion under Daubert,

2

but permitted all of the others.3

Appellants also offered additional summary judgment proof establishing: (1) there

was no missing paint or scratch on Pasco’s car’s bumper the day before the incident; (2)
4The intentional use of deadly force to stop the operator of a motor vehicle for a traffic

offense violates the Fourth Amendment prohibition against unreasonable seizure if the

defendant(1) unreasonably (2) terminated the freedomofmovement(3)through “intentional

acquisition of physical control.” Brower v. County of Inyo, 489 U.S. 593, 596-99 (1989).

5R. 356. This ruling is from Pasco I.

6

See, e.g., Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.

2002).

7For purposes of summary judgment only, of course. At trial the jury would be free

to believe Knoblauch and reject Appellants’ contentions.

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Knoblauch’s patrol car was in the police department maintenance bay the morning after the

incident; and (3) Knoblauch told Pasco’s sister that he did not terminate the pursuit as

instructed.

The district court found that Appellants had not raised any fact issue regarding

Knoblauch’sintent, a necessary element of their Fourth Amendment claim:4“that the vehicle

could not have been found without personal knowledge of where the vehicle went does not

prove that Knoblauch intentionally bumped Pasco’s car and caused the accident that killed

him.”5 We review the grant of summary judgment de novo, applying the customary standard

of resolving all disputes in the record in favor of Appellants, and giving the Appellants the

benefit of all reasonable inferences from the record.6

We agree with the district court’s apparent conclusion that the summary judgment

record establishes7that Knoblauch’s account of how he found Pasco’s car wasfalse, and that

he had personal knowledge of where the vehicle went. We also hold there to be sufficient

evidence from which a jury could infer that Knoblauch’s patrol car bumped Pasco’s car and
8

See United States v. Diaz-Carreon, 915 F.2d 951, 955 (5th Cir. 1990) (“An

implausible account of exculpatory events suggeststhat the defendant desires to obscure his

criminal responsibility. A factfinder need not ignore such an implausible account; under

appropriate conditions, the implausible account provides persuasive circumstantial evidence

of the defendant’s consciousness of guilt.”).

9

“Credibility determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those of a judge, whether he is

ruling on a motion for summary judgment or for a directed verdict. . . . Neither do we

suggest that . . . the trial court may not deny summary judgment in a case where there is

reason to believe that the better course would be to proceed to a full trial.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

10Bazan v. Hidalgo County, 246 F.3d 481, 492 (5th Cir. 2001) (quoting Plakas v.

Drinski, 19 F.3d 1143, 1147 (7th Cir. 1994), emphasis in Bazan).

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sent himdown the embankment. This inference is supported by Griggs’ subsidiary opinions,

even in the absence of his ultimate opinion, together with Appellants’ additional evidence

of contact, and the fact that the jury can infer guilty knowledge from Knoblauch’sfabricated

story of how he found the car.8

We are left with the question of whether the district court properly granted summary

judgment for Knoblauch because of the lack of evidence of intent. We conclude that the

better course is for a jury to resolve the question of Knoblauch’s intent after hearing all of

the evidence, rather than for the court to decide it summarily.9 First, “[t]he award of

summary judgment to the defense in deadly force cases may be made only with particular

care where the officer defendant isthe only witnessleft alive to testify.”10 Second, “summary
11Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1326 (5th Cir. 1996); accord

Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 n.3 (5th Cir. 1993) (“[W]hen state of mind

is at issue, summary judgment is less fashionable because motive or intent is inherently a

question of fact which turns on credibility.”); Krim v. BancTexas Group, Inc., 989 F.2d

1435, 1449 (5th Cir. 1993) (“We are not unmindful of the fact that cases which turn on state

of mind are often inappropriate for resolution at the summary judgment stage.”).

12

See Wright v. West, 505 U.S. 277, 296 (1992) (“if the jury did disbelieve [the

defendant], it wasfurther entitled to consider whatever it concluded to be perjured testimony

as affirmative evidence of guilt”);see also Reeves v. SandersonPlumbingProducts,Inc., 530

U.S. 133, 147 (2000) (“Such an inference is consistent with the general principal of evidence

law that the factfinder is entitled to consider a party’s dishonesty about a material fact as

‘affirmative evidence of guilt.’”) (quoting Wright). Knoblauch cites Moore v. Chesapeake

& Ohio Ry. Co., 340 U.S. 573 (1951) and Bose Corp. v. Consumers Union, 466 U.S. 485

(1984) for the apparently opposite proposition that disbelief of a witness or discredited

testimony are not a sufficient basisfor a contrary finding. The conflict is more apparent than

real, though. Moore and Bose address a witness who simply fails to persuade; Wright and

Reeves deal with a witness who persuades the jury that he is lying, i.e., testifying to the

opposite of the truth.

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judgment is rarely proper when an issue of intent is involved.”11 Finally, Knoblauch’s

fabrication is itself “affirmative evidence of guilt.”12

Accordingly, we reverse the judgment of the district court and remand for further

proceedings consistent with this opinion.