### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 12-20296

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

ON PETITION FOR REHEARING EN BANC (Opinion 25 April 2013, 713 F.3d 299) Before JONES, BARKSDALE, and SOUTHWICK, Circuit Judges. PER CURIAM: The court having been polled, and a majority of the judges who are in regular active service and not disqualified not having voted in favor (Fed. R. App. P. And 5 th Cir. R. 35), rehearing en banc is DENIED. Voting for en-bancrehearing were: Judge James L. Dennis, Judge Jennifer Walker Elrod, and JudgeJames E. Graves, Jr. Voting against were: Chief Judge Carl E. Stewart, Judge Carolyn Dineen King, Judge E. Grady Jolly, Judge W. Eugene Davis, Judge Edith H. Jones, JudgeJerry E. Smith, Judge Edith Brown United States Court of Appeals

Fifth Circuit 

### F I L E D August 1, 2013 Lyle W. Cayce ClerkNo. 12-20296

2 Clement, Judge Edward C. Prado, Judge Priscilla R. Owen, Judge Leslie H. Southwick, Judge Catharina Haynes, and Judge Stephen A. Higginson. Upon the filing ofthis order, the clerk shall issue the mandate forthwith.
ee Fed. R. App. P. 41(b).

ENTERED FOR THE COURT:

_ /s/ Rhesa Hawkins Barksdale

____ RHESA HAWKINS BARKSDALE UNITED STATES CIRCUIT JUDGENo. 12-20296

3 DENNIS, Circuit Judge, joined by GRAVES, Circuit Judge, dissenting: I respectfully but emphatically dissent from the court’s failure to rehear this case en banc. The panel opinion contains threeseriouserrors that should be corrected by this court en banc or by the Supreme Court: (1) The panel opinion erroneously assumes that the Supreme Court’s decision in Pearson v. Callahan, 555 U.S. 223 (2009), authorizes it to skip the first prong of the Saucier v. Katz, 533 U.S. 194 (2001), analysisand grant SergeantJeffreyWayne Cotton qualified immunity, despite there being no argument or evidence that Cotton’s actions
were based on his reasonable mistake of law; consequently, the panel opinion does not correctly apply either prong oftheSaucier analysis, but uses a confused jumble of parts of each prong to justify its decision and reach the wrong conclusion; (2) The panel opinion erroneously and misleadingly represents that there is no genuine issue as to any material fact i n this case; (3) The panel opinion erroneously and misleadingly represents facts that are genuinely disputed as being undisputed. 1. In Saucier v. Katz, the Court mandated a two-step sequence for resolving government officials’ qual ified immunity claims. First, “a court must decide whether the facts that a plaintiff has alleged (see Fed. R. Civ. P. 12(b)(6), (c)) or shown ( see Rules 50, 56) make out a violation ofa constitutional right.” Pearson, 555 U.S. at 232(citing Saucier, 533 U.S. at 201). Second, “if the plaintif f has satisfied this first step, the court must decide whether the right at issue was ‘clearly established’ at the timeofdefendant’s alleged misconduct.” Id. Qualified immunity isapplicable unlesstheofficial’sconductviolated a clearly established constitutional right. Id. (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). In Pearson, the Court held that while the sequence set forth in Saucier is often appropriate, it should no longer be regarded as mandatory. Id. at 236. “The judges of the district courts and the courts of appeals should be permitted toNo. 12-20296

1 SeeSaucier, 533 U.S. at 205 (“The concern ofthe immunity inquiry is toacknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive forc

e, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount offorce is legal in those circumstances. Ifthe officer’s mistake as towhat the law requires is reasonable, however, the officer is entitled to the immunity defense.”) 4 exercise their sound discretion in deciding which of the two prongs o f the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” I d. Importantly, the Court in Pearson did not change the substance or the purpose ofthe two Saucier prongs. I t merely recognized that lower courts should have the discretion to decide whether following the two prongs in sequence as originally set forth by Saucier is worthwhile in particular cases. Id. at 242. The panel opinion, in a very confused and erroneous manner, claims that it “do[es] not reach whether Sergeant Cotton’sshooting RobbieTolan violated his Fourth Amendment right against excessive force (as noted, the district court relied on this first prong ofqualified-immunity analysis).” Tolan v. Cotton, 713 F.3d 299, 306 (5th Cir. 2013). Instead, the panel opinion concludesthat “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.” Id. After the panel opinion states that it will use only the Saucier second prong analysis to decide this case, one would expect it to address whether Cotton made a reasonable mistake of law in using deadly force against Robbie, for that is the purpose of the second prong. 1 But it does not do so. Indeed, the panel opinion does not correctly apply either Saucier’s substantive first-prong f actual analysis or its second-prong legal analysis. Instead, it applies an amalgam of the two: something that it called a second-prong legal analysis butNo. 12-20296

5 which has all the earmarks of a first-prong fact-intensive inquiry. As a result, the panel opinion, in making a purported second-prong inquiry, fails entirely to
assess whether an objective officer in Cotton’s position could have made a mistake of law and instead performs what appears to be an erroneous, partial, and distorted Saucier first-prong analysis to conclude that summaryjudgment based on qualified immunity is proper. SeeTolan, 713 F.3d at 307-08. Why does the panel opinion announce that, unlike thedistrict court, itwill not use thefirst Saucier prong to start its analysis of this case? A proper application of the first prong, including a proper applic ation of summary judgment law as well as a proper application ofGraham v. Connor, 490U.S. 386 (1989), and Pearson would have correctly led only to the conclusion that there are genuine issues as to material factswhether Cotton objectively and reasonably feared for his life when he shot to kill Robbie; and that the parties’ submissions, properly viewed favorably to the plaintiff, could show that the officer’s conduct violated clearly established Fourth Amendment law. Why does the panel opinion say that it will
use the Saucier second prong only, but end up using mostly first-prong language in its reasoning?A Saucier second-prong inquirywas not an appropriate starting point because Cotton never testified that he shot Robbie because he made a reasonable mistake as to the legal constraints on his particular conduct in this
case. Ifthe panel had asked and answered these questions it could have avoided its mistakes and the unfortunate circuit precedent it makes in this case. 2. In pursuing its confused Saucier second prong analysis, the panel opinion further compounds its errors by representing that several genuinely disputed material facts are really undisputed and by incorrectly representing that the disputed factsare not material. Specifically, the panel opinion presumes that the Tolans’ front porch was not well lit despite the plaintiffs’ evidence that it was reasonably well lit by lights on the porch, in the yard, and from Officer JohnNo. 12-20296

6 Edwards’s c

ar spotlight and his flashlight; that Marian Tolan was argumentative and refused orders to remain calm, though she and her husband testified that she was calm and merely explained to both officers that she and her husband owned the Nissan and house and that Robbie lived there with them; that Cotton merely guided Marian toward the garage door despite the Tolans’ testimony that he dragged her and shoved her into the metal garage door; and that Robbie moved to intervene in Cotton’s treatment of Marian, despite the Tolans’ testimony and physical blood-spot evidence that indicated that Robbie had not moved toward Cotton when Cotton shot him. The parties also dispute whether Cotton slammed Marian against the garage door before or after Robbie began to get up, turned toward Cotton, and told him to unhand his mother; whether Robbiewas kneeling or crouching when Cotton shot him; where Robbie’s handswereand whether he reached toward hiswaistband; and whether Cotton issued any verbal warning before shooting Robbie with deadly force. Ultimately, the panel opinion’s pro-defendant recitation offacts fails to address evidence that, when viewed in the light most favorable to the plaintiff, creates genuine issues of material fact as to whether an objective officer in Cotton’s position could have reasonably and objectively believed that Robbie posed an immediate, significant threat of substantial injury to him. Resolving the disputed facts reasonably in favor of the plaintiffs, the evidence shows that when Cotton arrived at the Tolans’ residence, the Nissan that Edwards had misidentified as stolen was parked in front of the house, Robbie and Cooper were prone on the porch and on the ground, respectively, Bobby—Robbie’s father—had his hands against the other car in the driveway, and Marian—Robbie’s mother, a middle-aged woman in her pajamas whom Cotton believed to be the homeowner—was explaining to Edwards that she and Bobby owned the Nissan while Edwards had his pistol trained on Robbie and Cooper. Marian and Bobby had already explained to Edwards that he wasNo. 12-20296

7 mistaken in believing the Nissan tobestolen, that they owned the houseand the Nissan, that Robbie lived with them, and that Robbie and Cooper were their son and nephew, respectively. Robbie was prone on the porch toward and near the front door of the house. When Cotton arrived, Marian explained to Cotton that she and Bobby owned the Nissan, the house, and that Robbie was their son. Cotton immediately ordered Marian to move to the garage door. She began to comply, then stopped to again explain the officers’ mistake to Cotton. Cotton grabbed her arm, pulled her to the garage, and slammed her up against it so hard that she slid to the ground. At this point, Cotton had a clear and full view ofRobbiewhowas lying approximately 15to20feet away. When Robbiesawand heard his mother being thrown against the garage door, he pushed himself up and turned around to face Cotton while saying, “get your fucking hands off my mom.” Without issuing any warning, Cotton unholstered his weapon, pointed it at Robbie, and shot at him three times, striking him once in the chest. The force ofthe bullet drove him backwards against the front door, leaving his blood stain
near the front door. The bullet collapsed Robbie’s lung and lodged in his liver. Robbie was squatting or on his knees when he was shot. Robbie had noweapon and had not made any sort of reaching movement to ward his waistband. Edwards trained hisweapon on Robbiewhen he heard Robbie speak, but did not issuea warning or fire hisweapon. Theofficersfound, belatedly, that the Nissan had not been reported stolen and that neither Robbie, Cooper, nor any of the Tolans were armed. Taking the undisputed facts of this case and resolving the disputed facts reasonably in the nonmovant plaintiffs’ favor, the summary judgment record clearly shows that a jury reasonably could find that Cotton used excessive force against Robbie and Marian and that he did not warrant qualified immunity because the lawwas soclearly established that an objectively reasonable officer in Cotton’s position would have known that his actions violated Robbie andNo. 12-20296

8 Marian’s Fourth Amendment rights. Only by failing to adhere to proper summary judgment law and by misapplying the two-prong qualified immunity analysis was the panel opinion able to conclude otherwise. CONCLUSION The panel opinion erroneously interprets the Supreme Court’s decision in Pearson to authorize it not only to skip the first prong of the Saucier analysis, but also to misapply as its Saucier second-prong analysis an amalgam of both prongs, so that it applies neither prong fully and correctly. Also, the panel opinion misapplies summary-judgment law by dismissing undisputed facts as inconsequential and resolving material facts genuinely at issue in the defendant’s favor rather than in favor of the plaintiff. If the panel opinion had applied the Saucier prongs correctly it would have concluded that the facts that the plaintiffs have shown make out a violation oftheir constitutional right to be free from excessive and deadly force by a police officer; that this right was “clearly established” at the time that Cotton violated their rights by using excessiveforceagainst Marian Tolan and deadly forceagainst RobbieTolan; and that Officer Cotton is not entitled toqualified immunity because, under thefacts shown by the parties’ submissions, a reasonable jury could find that an objectively reasonable officer would have known that Robbie Tolan did not pose an immediate, significant threat to the officer’s life and that the officer’s use of deadly force without forewarning was therefore not justifiable.