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-banc rehearing were: Judge James L. Dennis, Judge

Jennifer Walker Elrod, and Judge James E. Graves, Jr. Voting against were:

Chief Judge Carl E. Stewart, Judge Carolyn Dineen King, Judge E. Grady

United States Court of Appeals

Fifth Circuit

F I L E D

August 1, 2013

Lyle W. Cayce

Clerk
No. 12-20296

Jolly, Judge W. Eugene Davis, Judge Edith H. Jones, Judge Jerry E. Smith,

Judge Edith Brown Clement, Judge Edward C. Prado, Judge Priscilla R. Owen,

Judge Leslie H. Southwick, Judge Catharina Haynes, and Judge Stephen A.

Higginson.

Upon the filing of this order, the clerk shall issue the mandate forthwith.

See Fed. R. App. P. 41(b).

ENTERED FOR THE COURT:

_/s/ Rhesa Hawkins Barksdale____

RHESA HAWKINS BARKSDALE

UNITED STATES CIRCUIT JUDGE

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No. 12-20296

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 three serious errors 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), analysis and grant Sergeant Jeffrey

Wayne 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 of the

Saucier 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

in 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’ qualified 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 of a constitutional right.”

Pearson, 555 U.S. at 232(citing Saucier, 533 U.S. at 201). Second, “if the

plaintiff has satisfied this first step, the court must decide whether the right

atissue was ‘clearly established’ atthe time of defendant’s alleged misconduct.”

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Id. Qualified immunity is applicable unless the official’s conduct violated 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

to exercise their sound discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Id. Importantly, the Court in

Pearson did not change the substance or the purpose of the two Saucier prongs.

It 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’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).” Tolan v.

Cotton, 713 F.3d 299, 306 (5th Cir. 2013). Instead, the panel opinion concludes

that “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,

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No. 12-20296

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

factual analysis or its second-prong legal analysis. Instead, it applies an

amalgam of the two: something that it called a second-prong legal analysis but

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 summary judgment

based on qualified immunity is proper. See Tolan, 713 F.3d at 307-08. Why does

the panel opinion announce that, unlike the district court, it will not use the

first Saucier prong to start its analysis of this case? A proper application of the

first prong, including a proper application of summary judgment law as well

as a proper application of Graham v. Connor, 490 U.S. 386 (1989), and Pearson

would have correctly led only to the conclusion that there are genuine issues as

to material facts whether 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 inquiry was not an

appropriate starting point because Cotton never testified that he shot Robbie

1 See Saucier, 533 U.S. at 205 (“The concern of the immunity inquiry is to acknowledge

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 force, 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 of force is legal in those circumstances. If the officer’s mistake as to what the law

requires is reasonable, however, the officer is entitled to the immunity defense.”)

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No. 12-20296

because he made a reasonable mistake as to the legal constraints on his

particular conduct in this case. If the 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 facts are 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

John Edwards’s car 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 Robbie was kneeling or crouching when Cotton shot him;

where Robbie’s hands were and whether he reached toward his waistband; and

whether Cotton issued any verbal warning before shooting Robbie with deadly

force. Ultimately, the panel opinion’s pro-defendant recitation of facts fails to

address evidence that, when viewed in the light most favorable to the plaintiff,

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No. 12-20296

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 was

mistaken in believing the Nissan to be stolen, that they owned the house and

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 of Robbie who was lying approximately 15 to 20 feet away. When Robbie

saw and 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 againstthe front door,

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No. 12-20296

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 no weapon and had not made any sort of reaching movement

toward his waistband. Edwards trained his weapon on Robbie when he heard

Robbie speak, but did notissue a warning or fire his weapon. The officers found,

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 law was so clearly established that an objectively reasonable officer

in Cotton’s position would have known that his actions violated Robbie and

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

thatthe plaintiffs have shown make out a violation of their constitutional right

to be free from excessive and deadly force by a police officer; that this right was

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No. 12-20296

“clearly established” at the time that Cotton violated their rights by using

excessive force against Marian Tolan and deadly force against Robbie Tolan;

and that Officer Cotton is not entitled to qualified immunity because, under the

facts 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.

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