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

No. 15

- 51204

AARON BROTHERS,

as Independent Executor of the Estate of William Slade Sullivan; ROSEMARY CLAUS SULLIVAN , Plaintiffs

– Appellees ,

versus OFFICER NATHAN J. ZOSS; OFFICER KRISTEN A. MAYO; OFFICER AARON P. BALLEW , Defendants

– Appellants

.

Appeal from the United States District Court for the Western District of Texas

Before KING , SMITH , and COSTA , Circuit Judges

. * JERRY E. SMITH, Circuit Judge :
Officers Nathan Zoss , Kristen Mayo, and Aaron Ballew forcibly removed William Sullivan from his pickup truck after he refused to comply with their

* Carolyn Dineen King, Circuit Judge, concurs in the judgment only. United States Court of Appeals Fifth Circuit 

### FILED September 14, 2016 Lyle W. Cayce Clerk Case: 15-51204 Document: 00513678809 Page: 1 Date Filed: 09/14/2016No. 15

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2 lawful commands to exit t h e vehicle. In the process, Sullivan, who was heavily intoxicated, morbidly obese , and handicapped, suf fered a serious injury that rendered him a quadriplegic

. A few months later, he died. In the ensuing civil lawsuit, the officers moved for summary judgment based on qualified immunity , which the district court denied, finding that there were genuine dis putes of material fact s
. In so doing , the cou rt erred b ecause , even on plaintiffs’ version of the tragic facts, the officers did not violate Sul

livan’s constitutional rights

. I. At about 11:30 p.m. , Sullivan drove to Ric k’s Cabaret (“Rick’s”) , a club, wher e h e drank heavily and by the end of the night had run up a bill of over $400. When he left at about 3:30 a.m., Rick’s employees offered to pay for a cab to take him to a nearby hotel . But Sullivan refused, instead asking the employees to drive him and his truck home, as Rick’s floor manager had prom ised at the start of the evening ; the manager re neged on his promise

. Sullivan therefore demanded his truck keys, which he had entrusted to a Rick’s em

ployee earlier in the evening, so that h e could charge his cell phone and call a friend to take him home. Shortly afterward, a Rick’s security guard called 911 and requested police assistance to prevent Sullivan from driving under the influence. When Zoss, the first responder, arrived on the sc ene, Sullivan was in his pickup with the engine running . Zoss approached Sullivan, engaged him in polite conversa

tion, and requested that he exit the truck . Sull ivan, however, refused to do so, “because,” he told Zoss , “you’re going to arrest me.” Zoss then warned Sullivan that he would be arrested if he did not step out of the vehicle. Sullivan slowl y opened the door but immediately closed it when Zoss reached for the handle. Case: 15-51204 Document: 00513678809 Page: 2 Date Filed: 09/14/2016No. 15

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3 Because of Sullivan’s noncompliance, Zoss and fellow officers Mayo and Balle w decided to resort to force. Mayo moved Zoss’s police cruiser in front of Sullivan’s pickup to try to prevent him from driving off , while Ballew drew his gun and pointed it at Sullivan. When Sul li van dropped his hands from view, Zoss also drew his weapon and ordered Sullivan to put his hands on his face. Sullivan eventually moved his hands back into view but, despite Zoss’s repeated orders , did not put his hands on his face. At Zoss’s command, Mayo opened the driver ’ s door and told Sullivan to get out. Sullivan told her to “hold on” as he took a phone call. Mayo grabbed onto his left arm and attempted to pull him from the truck , but , because of his great weight, she was unable to move him

. 1 Zoss came over to help. He reached over Sullivan’s bod y to grab his right arm , and t hen Zoss and Mayo pulled Sullivan out of the vehicle , which was a large, elevated pickup . In the process, Sullivan fell and slammed hard into the pavement . He did not u se his feet to brace his fall ; n or could he use his hand s, b ecause Zoss and Mayo were holding onto them. Immediately after Sullivan hit the ground, he yelled, “Ow, oh my back.” The officers handcuffed him. When they attempted to sit him up, he informed them that he had broken vertebrae. The officers therefor e stopped moving him and called for medical assistance. Aaron Brothers, to whom Sullivan had conveyed power of attorney, sued the City of Round Rock , Zoss, Mayo, and Ballew under 42 U.S.C. § 1983 , alleg

ing excessive force in violation of the Fourth and Fo urteenth Amendments

. 2

1 Though only 5’10”, Sullivan weighed approximately 350 pounds.

2 After Sullivan’s death, Brothers, as independent executor of Sullivan’s estate, was sub stituted as the proper plaintiff. Sullivan’s mother was also added as a plaintiff. The
com plaint originally named two other police officers, who were dismissed after the plaintiffs ascertained that th ey had not been involved in Sullivan’s injury. Amended com plaints added Case: 15-51204 Document: 00513678809 Page: 3 Date Filed: 09/14/2016No. 15

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4 The officers moved for summary judgment based on qualified immunity. The district court denied the motion, but disclaimed to rule directly on the defense , stating that it w anted to wait until “the record is fully developed through trial” to rule on qualified immunity

.
II. We review de novo the denial of summary judgment based on qualified immunity. Kovacic v. Villarreal , 628 F.3d 209, 211 (5th Cir. 2010 ). In denying such a motion, th e trial court makes two determinations. First, it “decides that a certain course of conduct would, as a matter of law, be objectively un

reasonable in light of clearly established law. Second, the court decides that a genuine issue of fact exists regardi ng whether the defendant(s) did, in fact, engage in such conduct.” Kinney v. Weaver , 367 F.3d 337, 346 (5th Cir. 2004) (en banc). On interlocutory appeal, this court generally has jurisdiction to “review the materiality of any factual disputes, but not t heir genuineness.” Hogan v. Cunningham , 722 F.3d 725, 730

– 31 (5th Cir. 2013). The Supreme Court has created a narrow exception to this jurisdictional limitation where the record blatantly contradicts one party’s version of events. Curran v. Aleshire , 800 F.3d 656, 663

– 64 (5th Cir. 2015). In Scott v. Harris , 550 U.S. 372 (2007), the Court rejected the plaintiff’s version because it was clearly contradicted by video evidence. Harris authorize s “assign[ing] greater weight

. . . to the facts evident from vi deo recordings taken at the scene.” 3 “When one party’s description of the facts is discredited by the record, we need not take his word for it but should view ‘the facts in the light depicted by the

Rick’s and it s parent company as defendants.

3 Newman v. Guedry , 703 F.3d 757, 761 (5th Cir. 2012) (quoting Carnaby v. City of Hous

. , 636 F.3d 183, 187 ( 5 th Cir. 2011)). Case: 15-51204 Document: 00513678809 Page: 4 Date Filed: 09/14/2016No. 15

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5 videotape.’” 4
T he district court ruled that there were genuine disputes as to material facts. The officers urge us to review the genuineness in light of the video evi

dence and Harris ’s exception to the jurisdictional limitation. W e agree with the plaintiffs , how ever, that the video evidence does not unequi vocally disprove their version of events , which we therefore a ccept for purposes of this appeal

. 5

III. Qualified immunity provides government off icials with immunity from suit

— not merely a defense to liability for civil damages

— “insofar as their con

duct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 6 It thus involves two inquiries : “A public official is entitled to qualified immunity unless the plaintiff dem

onstrates that (1) the defen dant violated the plaintiff’s constitutional rights and (2) the defendant’s actions were objectively unreasonable in light of clearly established law at the time of the violation.” 7 These inquiries can be made in any order

. Callahan , 555 U.S. at 227. B o th are matter s of law for the court. 8

4 Id. (quoting Harris , 550 U.S. at 380

– 81).

5 In particular, we accept plaintiffs’ allegations that the officers were aware both that Sullivan was morbidly obese and that he was handicapped and was morbidly obese and that he had back prob lems ; his neck and shoulders were hunched over, and he was una ble to turn his head with out turning his entire body. Moreover, although Sullivan did not park in a han di capped parking space, a handicapped placard hung from his rearview mirror.

6 Pearson v. Callahan , 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzg erald , 457 U.S. 800, 818 (1982)).

7 Cowart v. Erwin , No. 15

- 10404,

--- F.3d

--- , 2016 U.S. App. LEXIS 16736, at *16 (5th Cir. Sept. 13, 2016) (foot note omitted).

8 See Plumhoff v. Rickard , 134 S. Ct. 2012, 2019 (2014) (“[ Petitioners] contend that their c onduct did not violate the Fourth Amendment and, in any event, did not violate clearly established law. Thus, they r aise legal issues .

. . . ); Harris , 550 U.S. at 381 n.8 (“At the
sum mary judgment stage .

. . once we have determined the relevant set of facts and drawn all inferences in favor of the nonmoving party to the extent supportable by the record , the Case: 15-51204 Document: 00513678809 Page: 5 Date Filed: 09/14/2016No. 15

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6 At the first step of the qualified

- immun ity inquiry, the record shows that, even accepting (as we do) the plaintiffs’ version of the facts, the officers did not violate Sul livan’s constitutional right s
. Although p laintiffs allege excessive force under the Fourth and the Fourteenth Amendments , 9 we are instructed to analyze “ all claims that law enforcement officers have used excessive force

— deadly or not

— in the course of an arrest, investigatory stop, or ot her ‘seizu re’ of a free citizen .

. . under the Fourth Amendment and its ‘reasonableness’ stan

dard

. . . . ” Graham v. Connor , 490 U.S. 386, 395 ( 1989). We thus consider only whether the officers violated Sullivan’s Fourth Amendment right to be

“ ‘secure in [his] p erson[] .

. . against unreasonable .

. . seizures’ of the person.” Id

. at 394

. To succeed on an excessive

- force claim under the Fourth Amendment , pl aintiffs must demonstrate “(1) an injury that (2) resulted directly and only from the use of force that was exce ssive to the need, and that (3) the force used was objectively unreasonable.” 10 In this procedural posture, though plaintiffs have no trouble satisfying the first two prongs , they are un able to meet the

rea sonableness of [the officer ’s] actions

— or, in Justice Stevens’ parlance, ‘whether [the plain

tiff’s] actions have risen to a level warranting deadly force’

— is a pure question of law.” ( some alterations in original ) (internal citations omitted)).

9 The officers assert that plaintiffs have also alleged deprivation of “rights under the Americans with Disabi lities Act” (“ADA”). The plaintiffs, however, deny bringing any claim under the ADA, and the complaints do not assert any cause of action under it , whether aga inst the officers or the city. Issues pertaining to the ADA are thus not properly before this c ourt. The irrelevance of the ADA notwi thstanding, the district court issued a ruling on the applicability of Title II of the ADA. The officers lack s tanding to appeal that ruling because Title II does not apply to individuals. The city will be able to ap peal that ruling if it suffers an adverse final judgment

. 10 Hogan , 722 F.3d at 734 (quoting Flores v. City of Palacios , 381 F.3d 391, 396 (5th Cir. 2004)). An equivalent formulation found in other cases is “(1) injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” Deville v. Marcantel , 567 F.3d 156, 167 (5th Cir. 2009) (per curiam) (quoting Tarver v. City of Edna , 410 F.3d 745, 751 (5th Cir. 2005)). Case: 15-51204 Document: 00513678809 Page: 6 Date Filed: 09/14/2016No. 15

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7 third because , even on the facts alleged and drawing all reasonable inferences in their favor, the officers’ conduct was objectively reasonable.
In excessive

- force claims under the Fourth Amendment, the reasonable

ness of an official’s conduct depends on “the facts and circumstances of each particu lar case, including the severity of the crime at issue, whether the sus

pect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham , 490 U.S. at 396. T he court must adopt “the perspective of a reasona

ble officer on the scene, rather than [judge] with the 20/20 vision of hindsight.” Id. 11 “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make s plit

- second judgments

— in circum

stances that are tense, uncertain, and rapidly evolving

— about the amount of force that is necessary in a particular situation.” Id. at 396

– 97. “As in other Fourth Amendment contexts, however, the ‘reasonableness’ inquiry i n an ex ces sive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the fact s and circumstances con

fronting them, without regard to their underlying intent or motivation.” Id. at 397.
T h e Graham factors support the decision to resort to force. Sullivan ’s crime s were serious: driving while intoxicated and interfering with the duties of a public servant. A reasonable officer, moreover, could have perceived him

as an immediate threat. As long as Sullivan remained in his pickup, he posed

11 Accord Ramirez v. Knoulton , 542 F.3d 124, 129

– 30 (5th Cir. 2008) (“‘A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished.’ Uni ted States v. Sharpe , 470 U.S. 675, 686

– 87

. . . (1985). ‘The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.’ Id. at 687.”). Case: 15-51204 Document: 00513678809 Page: 7 Date Filed: 09/14/2016No. 15

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8 a potential danger to the officers and others. 12 A motor vehicle can be used as a dangerous weapon, even when blocked in by a police cruiser. See, e.g. , Rickard , 134 S. Ct. at 2021

– 22 (car chase despite police blockade). And a rea

sonable officer could have feared that Sul livan might have a weapon on his person or in the pickup. See Reese v. Anderson , 926 F.2d 494, 500

– 01 (5th Cir. 1991). Finally, he resisted arrest, refusing to comply with the instru ctions to get out of his vehicle and closing his door in Zoss’s face. 13
B ecause Sullivan was not in the midst of harming other individuals and because his resistance was mostly passive, the officers were entitled to use only

a proportional amount of force. We agree with the officers , though, that t he force they employed was moderate

. Although Ballew and Zoss drew their guns during the encounter, the y never used them or any other weapon on Sullivan but merely used their hands to pull Sullivan from his vehic le. Nor did any of the officers gratuitously strike Sullivan. The only force the y employed was
pur suant to and required for removing him from the truck

. 14 The officers did not pull Sullivan with excessive force but , instead , slowly escalated the amount of force until it was enough to extract him

. The y began with a single arm bar. Mayo opened the door and attempted to pull Sullivan
out by his left arm, but she was unable to move him on account of his great

12 See Smith v. Ball Stat e Univ. , 295 F.3d 763, 769 (5th Cir. 2002) (“Smith posed a threat to himself, the officers and the general public, even after Officer Foster turned off Smith’s vehicle and attempted unsuccessfully to communicate with him. Indeed, contrary to Smith’s asser tions, his unresponsiveness did not neutralize the safety threat, but rather exac

er bated it by adding an element of unpredictability.”).

13 See Deville , 567 F.3d at 167 (“Officers may consider a suspect’s refusal to comply with instructions during a tra ffic stop in assessing whether physical force is needed to effec

tu ate the suspect’s compliance.”).

14 In the district court, plaintiffs maintained only that the officers employed excessive force in pulling Sullivan from his vehicle. They did not allege e xcessive force in handcuffing him, so t hat argument has been waived. See Jethroe v. Omnova Solutions, Inc. , 412 F.3d 598, 601 (5th Cir. 2005). Case: 15-51204 Document: 00513678809 Page: 8 Date Filed: 09/14/2016No. 15

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9 weight. Zoss thus came to her assistance and grabbed Sullivan by his right arm. Together, both officers repeatedly attempted to pull Sullivan out of the truck but succeed ed only when they leaned back and put all of their weight into pulling.
The unfortunate result

— Sulliva n ’s falling on his chest and stomach

— was not foreseeable. A reasonable officer could not have predicted that Sulli

van would not use his feet to brace his fall. Moreover, given the speed at which Sullivan hit the ground , a reasonable officer could not h a ve been expected immediately to recognize that Sullivan was about to hit the ground , that the officers would be unable to lower his 350 pounds in a controlled manner, or that they should let go of his arms so that he could use them to catch himself.
W e rej ect plaintiffs’ characterization of the force a s “tantamount to deadly force” merely because it resulted in serious injury. Force is not neces sarily deadly even where it results in death. 15 The plaintiffs posit, however, that the officers could hav e acted differently. I n particu lar, the y could have spent more time negotiating with Sullivan. In denying qualified immunity , we have placed weight on the quickness with which law enforcement personnel have escala ted from negotiation to force

. See, e.g. , Newman , 703 F.3d at 763; Deville , 567 F.3d at 16 7

– 6 8. T he approximately two minutes that Zoss spent negotiating with Sullivan before deciding to resort to force was not objectively

un reason able, especially in light of , inter alia , Sulli van’s explicit an d repeated refusal to comply with Zoss’s request s to exit the pickup and the possibility

15 Cf. Mullenix v. Luna , 136 S. Ct. 305, 312

– 13 (2015) (Scalia, J., concurring) (“It does not assist analysis to refer to all use of force that happens to kill the arrestee as the appli

cation of deadly force. The police might, for example, attempt to stop a fleeing felon’s car by felling a large tree across the road; if they drop the tree too late, so that it crushes the car and its occupant, I would not call that the application of deadly force. Though it was force suf ficient to kill, it was not applied with the object of harming the body of the felon.”). Case: 15-51204 Document: 00513678809 Page: 9 Date Filed: 09/14/2016No. 15

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10 that Sullivan might have had access to a weapon or could have tried to drive his huge, ele vated truck into the police car.
T he order denying qualified immunity is REV ERSED, and this matter is REMANDED for entry of dismissal as to the three officers and for further pro

ceedings as needed. Case: 15-51204 Document: 00513678809 Page: 10 Date Filed: 09/14/2016