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Aldaba v. Pickens

United States Court of Appeals, Tenth Circuit

December 20, 2016

RMA ALDABA, as personal representative and next of kin to Johnny Manuel Leija, deceased, Plaintiff - Appellee,

         Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:12-CV-00085-FHS)

          Clark Crapster, Steidley & Neal, Tulsa, Oklahoma, and Jordan L. Miller, Collins Zorn & Wagner, Oklahoma City, Oklahoma (Eric D. Janzen and Philip W. Anderson, Collins Zorn & Wagner, Oklahoma City, Oklahoma, on the briefs), for Defendant-Appellants James Atnip and Steve Beebe.

          Jeremy J. Beaver, Gotcher & Beaver Law Office, McAlester, Oklahoma, for Plaintiff-Appellee.

          Before BRISCOE, McKAY, and PHILLIPS, Circuit Judges.

          PHILLIPS, Circuit Judge.

         In Aldaba v. Pickens, 777 F.3d 1148 (10th Cir. 2015), this Court affirmed the district court's denial of summary judgment for three law-enforcement officers seeking qualified immunity. Relying on the facts that the district court applied to deny the summary-judgment motion, we concluded that a jury could find that the three officers had violated the Fourth Amendment by using excessive force, and that the law saying so was clearly established. Id. at 1161.

         After the Supreme Court granted certiorari in Pickens v. Aldaba, 136 S.Ct. 479 (2015) (mem.), it vacated our judgment and remanded "for further consideration in light of Mullenix v. Luna, 577 U.S. __, 136 S.Ct. 305 . . . (2015) (per curiam)." Having further considered our earlier opinion, we now hold that the three law-enforcement officers are entitled to qualified immunity because they did not violate clearly established law. We do not decide whether they acted with excessive force. Hence we reverse the district court's judgment and remand with instructions to grant summary judgment in favor of the three law-enforcement officers.

         I. Mullenix v. Luna

         In Mullenix v. Luna, Israel Leija Jr., fled a Texas police officer trying to arrest him on a warrant at a drive-in restaurant. 136 S.Ct. at 306. The officer pursued Leija, as did an officer in a different patrol car, at speeds up to 110 miles per hour on an interstate highway. Id. During the chase, Leija called police dispatch and threatened to shoot the officers unless they abandoned pursuit. Id. The dispatcher relayed this information over the police radio, also reporting that Leija might be intoxicated. Id. In response to the dispatch report, other officers began setting tire-spike strips at three highway locations. Id. The first location was beneath an overpass on Leija's route. Id. at 307. Though Trooper Mullenix arrived at the overpass too late to help set the tire spikes, he soon hatched another plan-disabling Leija's car by gunfire from the overpass. Id. Despite his supervisor's radio message to "stand by" to "see if the spikes work first, " Trooper Mullenix steadied his rifle and awaited Leija. Id. About three minutes passed before Leija's car came into sight. Id. Trooper Mullenix fired six shots at the car, missing its engine block, radiator, and hood, but striking Leija four times. Id. Leija's car rolled into the tire spikes and flipped two and a half times. Id. Inside the car, Leija lay dead, killed by the rifle shots. Id.

         Trooper Mullenix moved for summary judgment on qualified-immunity grounds, but the district court denied the motion. Id. It concluded that "[t]here are genuine issues of fact as to whether Trooper Mullenix acted recklessly, or acted as a reasonable, trained peace officer would have acted in the same or similar circumstances." Id. (alteration in original) (citing Luna v. Mullenix, Civil Action No. 2:12-CV-152-J, 2013 WL 4017124, at *6 (N.D. Tex. Aug. 7, 2013)). Although the district court found a genuine issue of material fact about whether Leija had presented an immediate threat of physical harm or death to others, it did not further decide whether Trooper Mullenix had violated clearly established law governing excessive force. Mullenix, 2013 WL 4017124, at *6.

         After a panel affirmed the district court's decision, the Fifth Circuit denied en banc review. Mullenix, 136 S.Ct. at 308. Then the panel revised its opinion. Where it had earlier agreed with the district court that the "immediacy of the risk posed by Leija" was a fact question, it reversed course and declared that the objective reasonableness of Trooper Mullenix's acts instead presented a legal question. Id. at 307. Then, evaluating Trooper Mullenix's conduct as set out in the district court's order, the panel held that his actions were objectively unreasonable-and amounted to excessive force-"because several of the factors that had justified deadly force in previous cases were absent here: [t]here were no innocent bystanders, Leija's driving was relatively controlled, Mullenix had not first given the spike strips a chance to work, and Mullenix's decision was not a split-second judgment." Id. at 308. Almost in passing, the panel concluded that "the law was clearly established such that a reasonable officer would have known that the use of deadly force, absent a sufficiently substantial and immediate threat, violated the Fourth Amendment." Id. (quoting Luna v. Mullenix, 773 F.3d 712, 725 (5th Cir. 2014)).

         Addressing only the clearly-established-law prong of the qualified-immunity analysis, the Supreme Court reversed. Id. It repeated its earlier direction to lower courts that they not define clearly established law at a high level of generality. Id. In this regard, the Court again emphasized that "[t]he dispositive question is 'whether the violative nature of particular conduct is clearly established.'" Id. (alteration in original) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Next, the Court emphasized that "[t]his inquiry 'must be undertaken in light of the specific context of the case, not as a broad general proposition.'" Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)). Finally, the Court stressed that "specificity is especially important in the Fourth Amendment context, where the Court has recognized that '[i]t 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.'" Id. (alteration in original) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).

         The Mullenix Court rejected the rationale that the Fifth Circuit used to deny Trooper Mullenix qualified immunity. Specifically, the Supreme Court rejected the Fifth Circuit's using as clearly established law a general rule that "a police officer may not 'use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others.'" 136 S.Ct. at 308-09 (quoting Luna, 773 F.3d at 725). It harked back to Brosseau, where it had rejected as "mistaken" the Ninth Circuit's use of an equally general test for excessive force taken from Tennessee v. Garner, 471 U.S. 1 (1985), namely, that "deadly force is only permissible where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others." Mullenix, 136 S.Ct. at 309 (quoting Haugen v. Brosseau, 339 F.3d 857, 875 (9th Cir. 2003)).

         In repeating the proper rule for what qualifies as clearly established law, the Mullenix Court quoted its earlier cases. For instance, the Court restated what Brosseau had set as the correct inquiry in resolving whether the plaintiff had shown clearly established law-"whether it was clearly established that the Fourth Amendment prohibited the officer's conduct in the 'situation [she] confronted': whether to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight." Id. at 309 (alteration in original) (quoting Brosseau, 543 U.S. at 199-200). Highlighting that "this area is one in which the result depends very much on the facts of each case, " the Brosseau Court found no clearly established law under which the officer's shooting was excessive force-"because '[n]one of [the cases] squarely governs the case here." Id. (alterations in original) (quoting Brosseau, 543 U.S. at 201).

         Along the same line, the Mullenix Court found Anderson v. Creighton, 483 U.S. 635 (1987), "instructive on the required degree of specificity." Mullenix, 136 S.Ct. at 309. There, again, the Supreme Court had reversed denial of qualified immunity where the circuit court set as the clearly established law a general "right to be free from warrantless searches of one's home unless the searching officers have probable cause and there are exigent circumstances." Id. (quoting Anderson, 483 U.S. at 640). The Court "faulted that formulation for failing to address the actual question at issue: whether 'the circumstances with which Anderson ...

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