RMA ALDABA, as personal representative and next of kin to Johnny Manuel Leija, deceased, Plaintiff - Appellee,
BRANDON PICKENS, Defendant-Appellant; JAMES ATNIP; STEVE BEEBE, Defendants-Appellants, and THE BOARD OF MARSHALL COUNTY COMMISSIONERS; THE CITY OF MADILL; Defendants.
from the United States District Court for the Eastern
District of Oklahoma (D.C. No. 6:12-CV-00085-FHS)
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.
J. Beaver, Gotcher & Beaver Law Office, McAlester,
Oklahoma, for Plaintiff-Appellee.
BRISCOE, McKAY, and PHILLIPS, Circuit Judges.
PHILLIPS, Circuit Judge.
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.
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
Mullenix v. Luna
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.
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.
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)).
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)).
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.
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).
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