Cole v. Carson

Attorneys

• Rowe Jack Ayres, Jr., Christopher Scott Ayres, Esq., Ayres Law Office, P.C., Dallas, TX, Amir H. Ali, Roderick & Solange MacArthur Justice Center, Washington, DC, James Mark Mann, Mann Firm, Henderson, TX, for Plaintiffs - Appellees.
• James Thomas Jeffrey, Jr., Esq., Law Offices of Jim Jeffrey, Arlington, TX, Norman Ray Giles, William S. Helfand, Lewis, Brisbois, Bisgaard & Smith, L.L.P., Houston, TX, for Defendant - Appellant.
• Clark McAdams Neily, III, Cato Institute, Washington, DC, for Amicus Curiae Cato Institute.
• Gregory Todd Butler, Esq., Phelps Dunbar, L.L.P., Jackson, MS, for Amici Curiae International Municipal Lawyers Association, Texas Municipal League, Texas City Attorneys Association, Texas Association of Counties, Combined Law Enforcement Associations of Texas, City of Arlington, Texas, City of Garland, Texas, City of Grand Prairie, Texas, Mississippi Municipal Service Company, National Association of Police Organizations, Houston Police Officers Union.
• The Supreme Court over several years has developed protection from civil liability for persons going about their tasks as government workers in the form of immunity; not the absolute immunity enjoyed by prosecutors and judges, but a qualified immunity. Today we again repair to issues inherent in the qualification. The doctrine protects at the earliest stage of litigation at which the defense's application is determinable. To that end, courts have developed procedures and pretrial practices, including appellate review of pretrial denials, otherwise interlocutory and unappealable, and a reply to an answer under Rule 7(a) on order of the district court, particularized to address the defense of immunity in a motion to dismiss or for summary judgment. When those processes do not yield pretrial resolution, as with competing factual narratives, the full reach of qualified immunity gives way to a trial, the first point at which its application is determinable. And in obeisance to constitutional mandate, the worker's defense enjoys a right to the protection of a jury-long a bastion interposed between the state and person, and assured by the Founders. And it signifies that today the district judge has multiple ways to present fully the claims and defenses to a jury to ensure the government worker a full draw upon his immunity defense, including resolution of the competing factual narratives, one of which-or a meld of both-may foreclose liability.
• In this case, police officers from Sachse, Texas argue that the district court should have sustained their defense of qualified immunity on their pretrial motions to dismiss and for summary judgment. Ryan Cole and his parents Karen and Randy (collectively "the Coles") sue Officer Carl Carson, Lieutenant Martin Cassidy, and Officer Michael Hunter of the Sachse Police Department under 42 U.S.C. § 1983. The Coles allege that the officers violated Ryan Cole's Fourth and Fourteenth Amendment rights during an incident in which Cassidy and Hunter shot Ryan without warning, and then lied about what happened. The officers filed dispositive pretrial motions in the district court, asserting the defense of qualified immunity. The district court denied these motions, concluding that immunity could not be determined at this stage of the proceeding. In Cole I , a panel of our court affirmed the denial of summary judgment as to the Coles' Fourth Amendment excessive-force claim and the denial of the motion to dismiss the Coles' Fourteenth Amendment false-charge claim, but reversed denials of the motion to dismiss the Coles' Fourth Amendment and Brady claims attacking the alleged fabrication of evidence. The Supreme Court vacated Cole I , and remanded for consideration in light of its intervening decision in Mullenix v. Luna . On remand, the panel affirmed the denial of summary judgment as to the excessive-force claim. Because the Coles' other claims were unaffected by the reasoning of Mullenix , the panel reinstated Cole I 's holdings on the fabrication-of-evidence claims. We reheard this case en banc to reconsider disposition of the Coles' excessive-force claim in light of Mullenix .
• We conclude that it will be for a jury, and not judges, to resolve the competing factual narratives as detailed in the district court opinion and the record as to the Coles' excessive-force claim. Limited by our jurisdiction to the materiality of factual disputes, we AFFIRM the denial of summary judgment on this claim and DISMISS Cassidy and Hunter's appeal. The Coles' remaining claims are unaffected by the reasoning of Mullenix , and so, as in Cole I , we AFFIRM denial of the motion to dismiss the Coles' Fourteenth Amendment false-charge claim; REVERSE denial of the motion to dismiss the Coles' Fourth Amendment and Brady fabrication-of-evidence claims based on qualified immunity; and return the case to the district court for trial and resolution of issues consistent with this opinion.
• On October 25, 2010, at around 10:30 a.m., the Sachse Police Department called available units to the neighboring town of Garland, Texas. There police were searching for Ryan Cole, a seventeen-year-old white male, reported to be walking in the neighborhood with a handgun. Officer Michael Hunter responded by proceeding immediately to the Garland neighborhood. In a statement given on the day of the incident, Hunter related that on arriving in the neighborhood, he overheard a civilian stating that Ryan had given up one of his guns, and that he had unsuccessfully tried to persuade Ryan to not keep his handgun. Hunter searched the area, and saw two officers following Ryan, who was walking away from them holding his gun to his head, approaching a wooded area along Highway 78. Although told by officers that things were under control, Hunter volunteered to go behind the wooded area and possibly intercept Ryan, and suggested that Officer Carl Carson, who was also present, join him.
• Four years later, after this litigation had commenced, Hunter for the first time recalled that the civilian he had overheard had described an altercation with Ryan in which Ryan had threatened him. He also then for the first time recalled hearing police-radio transmissions indicating that officers were protecting nearby schools because of "[Ryan]'s dangerous conduct which posed a risk of serious harm to a great many innocent in the vicinity." Hunter otherwise learned nothing "that would cause [him] to believe [Ryan] was violent or wanted to hurt anyone." Hunter understood that Ryan was suicidal, and, four years after the incident, he also raised the possibility that Ryan was using suicide as a pretext to evade the police.
• Meanwhile, Lieutenant Martin Cassidy had also heard the original dispatcher's summons. Cassidy called the Sachse Police Department for more information. On the day of the incident, Cassidy swore that he learned "this subject had shown up at [a] residence with a handgun and had just recently been seen walking away." But, four years later, after this litigation had commenced, like Hunter, Cassidy remembered learning more, including that Ryan "had threatened to shoot anyone who tried to take his gun"; had refused an order to drop his weapon; and might be headed for Sachse High School "to possibly engage in violence." Cassidy also decided to intercept Ryan on Highway 78.
• presence." Ryan was holding his handgun pointed to his own head, where it remained. "[Ryan] never pointed a weapon at the Officers," and "never made a threatening or provocative gesture towards [the] Officers." "Officers [Cassidy and Hunter] had the time and opportunity to give a warning" for Ryan to disarm himself. However, the officers provided "no warning ... that granted [Ryan] a sufficient time to respond," such that Ryan "was not given an opportunity to disarm himself before he was shot." Hunter and Cassidy then shot Ryan multiple times. Officer Hunter's first shot struck Ryan as he was oriented away from the officers at a 90-degree angle-that is, he was not facing Officer Hunter. Following impact of the first shot, as Ryan's body turned or fell towards Hunter, he shot him a second time. As an involuntary reflex to being shot, Ryan pulled the trigger, shooting himself in his temple. But the officers did not know that.
• Following the shooting, the three officers remained together at the scene. The Coles allege that during this time the officers conspired to insulate Cassidy and Hunter from liability with a fabricated narrative in which Ryan was facing Hunter and pointed his weapon at the officer, at which point Cassidy and Hunter fired on Ryan in defense. Eventually, members of the Garland Police Department arrived and took control of the scene, but did not follow the standard procedure of separating witnesses to ensure independent recollections. Instead, Cassidy and Hunter were allowed to return to their police station together. Later that day, the officers provided statements to investigators. Hunter stated that he had no chance to issue a command to Ryan. Cassidy and Carson, however, swore that, when Ryan backed out from the brush, they heard Hunter shout a warning to him. Hunter and Cassidy stated that Ryan then turned towards Hunter and pointed his handgun at Hunter, at which point both officers-fearing for Hunter's life-opened fire defensively.
• The Coles brought, inter alia, four Section 1983 claims against the officers. First, they allege a violation of Ryan's Fourth Amendment right against the use of excessive force arising from the shooting. Second, the Coles allege a violation of Ryan's Fourteenth Amendment right against the imposition of false charges arising from the fabrication of evidence. Third, they allege a violation of Ryan's Fourth Amendment right against unreasonable seizures arising from the fabrication of evidence. Fourth, they allege a Brady violation arising from the fabrication of evidence. The officers filed a motion to dismiss these claims under Rule 12(b)(6), asserting qualified immunity defenses. The district court denied the motion in a January 2014 Memorandum Opinion and Order. Carson alone appealed the denial of the motion to dismiss the Coles' three fabrication-of-evidence claims based on qualified immunity. The district court stayed these fabrication-of-evidence claims pending Carson's appeal, allowing the Coles limited discovery against Cassidy and Hunter's qualified immunity defenses to the excessive-force claim. With that discovery complete, the two officers moved for summary judgment, rearguing qualified immunity. The district court denied their motion and Cassidy and Hunter appealed.
• The officers' appeals were consolidated. In 2015, in Cole I , a panel of this court affirmed the district court's denial of summary judgment on the Coles' excessive-force claim, affirmed denial of the motion to dismiss the Coles' Fourteenth Amendment false-charge claim, and reversed the denial as to the Coles' Fourth Amendment and Brady fabrication-of-evidence claims, finding the qualified immunity defense applicable for these claims. The officers petitioned the Supreme Court for a writ of certiorari. In November 2016, the Supreme Court granted certiorari, vacated the panel's judgment, and remanded the case for further consideration in light of Mullenix v. Luna , decided in the intervening time.
• On remand from the Supreme Court, recognizing that its jurisdiction was limited to determining the materiality of factual disputes that the district court determined were genuine, the panel once again held that the applicability of qualified immunity for Cassidy and Hunter could not be determined at the summary judgment stage. Finding the Supreme Court's remand order reached no further, the panel reinstated the Cole I opinion on the Coles' three fabrication-of-evidence claims. The officers moved for rehearing en banc, which we granted.
• We hear this case on remand from the Court for further consideration in light of Mullenix . We do not reach issues unaddressed by the mandate on remand, and so we hold as in Cole I with respect to the Coles' three fabrication-of-evidence claims. First, we affirm the district court's denial of the motion to dismiss the Coles' Fourteenth Amendment claim regarding the imposition of false charges. Second, finding qualified immunity applicable, we reverse the denial of the motion to dismiss the Coles' claim that the alleged fabrication of evidence violated the Fourth Amendment. Lastly, finding qualified immunity applicable, we reverse the denial of the motion to dismiss the Coles' claim that the alleged fabrication of evidence entailed a Brady violation.
• On an appeal of a denial of summary judgment on the basis of qualified immunity, our jurisdiction is limited to examining the materiality of factual disputes the district court determined were genuine. "[I]n an interlocutory appeal we cannot challenge the district court's assessments regarding the sufficiency of the evidence-that is, the question whether there is enough evidence in the record for a jury to conclude that certain facts are true." "[W]e lack jurisdiction to resolve the genuineness of any factual disputes" and "consider only whether the district court erred in assessing the legal significance of the conduct that the district court deemed sufficiently supported for purposes of summary judgment." Like the district court, we must view the facts and draw reasonable inferences in the light most favorable to the plaintiff and ask whether the defendant would be entitled to qualified immunity on those facts. The Supreme Court has summarily reversed this court for failing to take the evidence and draw factual inferences in the non-movants' favor at the summary judgment stage. In doing so, the Court emphasized that the requirement is no less binding "even when ... a court decides only the clearly-established prong of the standard." Within the limited scope of our inquiry, review is de novo.
• This case is obvious when we accept the facts as we must. It is also informed by our precedent. Before 2010, Baker v. Putnal established clearly that Cassidy's and Hunter's conduct-on the facts as we must take them at this stage-was unlawful. For in Baker , members of the public told Officer Michael Putnal, a police officer patrolling a crowded Galveston beach area during spring break, that "someone had entered the crowd with a pistol-gripped shotgun." Minutes later, Officer Putnal heard gunfire and saw the crowd scurrying. There was "a good deal of confusion on the beach." Two people directed the officer to a car in which the gunman was supposedly sitting. Putnal then saw Wendell Baker Jr. and another man sitting in a truck parked on the beach. The parties disputed what happened next. Putnal stated he saw Baker loading a magazine into a handgun, that he warned Baker to freeze or drop the gun, that Baker instead turned the gun upon Putnal, at which point Putnal fired, killing Baker. However, witnesses "state[d] that [Baker] took no threatening action ... as the officer approached the truck," that Putnal issued no warning to Baker, and that "Baker ... may have barely had an opportunity to see Putnal before [the officer] fired his gun." The parties did not dispute that Putnal had been searching for a gunman, and that a gun had been recovered from Baker's seat, although they disputed whether and how Baker had been holding it, that is, whether he pointed it at Putnal. It was also undisputed that Baker was turning to face Putnal from his seat, although medical reports indicated from "the nature of the wounds ... that Baker ... was not facing Putnal when he was shot." Baker's survivors sued the officer, bringing, inter alia, a Fourth Amendment excessive-force claim. The district court granted Putnal qualified immunity, crediting his account that he had fired in response to Baker turning and aiming the gun at him. On appeal, we reversed and remanded the excessive-force claim for trial. Recognizing the dispute as to the officer's warning, Baker's turn, and the position of Baker's gun, we found "simply too many factual issues to permit the Bakers' § 1983 claims to be disposed of on summary judgment." "Chaos on the beach and Baker['s] mere motion to turn and face Putnal are not compelling reasons to find that [the officer's] use of force was not excessive as a matter of law." Viewing the facts and drawing inferences "in the light most favorable to the nonmoving party," we held that "[t]he number of shots and the nature of the wounds raise ... more of a question of fact than a court may dispose of on summary judgment."
• In this case, Officers Cassidy and Hunter found themselves in a search for a suicidal teenager who they knew had already encountered fellow officers and walked away from them with his gun to his head, non-responsive, but without aggressive action. The circumstances of the officers' encounter with Ryan, as in Baker , remain heavily disputed: as to whether Ryan was aware of the officers, whether and how he turned and aimed his gun, and whether Hunter warned Ryan to disarm himself. The district court here defined the facts in a 21-page opinion, finding genuine disputes regarding these facts, and, viewing these disputes in a light most favorable to the Coles, concluded that a reasonable jury could find that Ryan made no threatening or provocative gesture to the officers and posed no immediate threat to them. Unlike in Kisela , where the officer repeatedly warned an armed suspect to disarm, yet that suspect, facing the officer and hearing his warnings, refused to disarm, here the district court concluded that a reasonable jury could find Cassidy and Hunter opened fire upon Ryan without warning, even though it was feasible. On these facts, the officers' conduct violates clearly established law.
• Judge Jones's dissent fares no better in addressing some of the key facts of the shooting itself. Contrary to its assertion, the district court found that Ryan was facing at a 90-degree angle away from the officers when he was first shot. Cole , 68 F. Supp. 3d at 644. As for the "warning," the district court found that a reasonable jury could conclude that Ryan "was not given an opportunity to disarm himself before he was shot." Id. Relitigating the district court's assessment of factual disputes is not our role on interlocutory review.
• What Hunter and Cassidy knew before shooting at Ryan, whether they warned him before doing so, and what actions Ryan took before being shot are all disputed. The district court must afford Cassidy and Hunter qualified immunity at the earliest point the defense's applicability is determinable. Here, we have not yet reached that point. It will be for a jury to resolve what happened on October 25, 2010. The district court did not err in denying the officers qualified immunity at the summary judgment stage.
• The district court determined that genuine disputes of fact regarding Cassidy's and Hunter's entitlement to qualified immunity remain. We AFFIRM the district court's denial of summary judgment on the Coles' excessive-force claim and DISMISS Cassidy and Hunter's appeal; AFFIRM denial of the motion to dismiss the Coles' Fourteenth Amendment false-charges claim; REVERSE denial of the motion to dismiss the Coles' Fourth Amendment and Brady fabrication-of-evidence claims; and return the case to the district court for trial and resolution of issues consistent with this opinion.
• What "clearly established law" says that only a rogue cop would have shot at this mentally disturbed teenager within 3 to 5 seconds as the teen emerged from dense bushes ten to twenty feet away from Officer Hunter and, with his finger on the trigger of a loaded pistol pointed in the direction of his own head, began turning in the officer's direction? The majority state this is an "obvious case" for the denial of qualified immunity: the officers could not shoot without first announcing themselves to Cole or looking down the barrel of his gun. What is so obvious? Contrary to the majority's dangerously unrealistic proposition, "action beats reaction" every time. Ontiveros v. City of Rosenberg, 564 F.3d 379, 384 (5th Cir. 2009). Neither we nor the Supreme Court has ever held that police officers confronted in close quarters with a suspect armed and ready to shoot must hope they are faster on the draw and more accurate. The increasingly risky profession of law enforcement cannot put those sworn to "serve and protect" to a Hobson 's choice: place their lives on the line by heroic forbearance or risk their financial security in defense of lawsuits. The Supreme Court has repeatedly stated in plain terms that the purpose of qualified immunity is to prevent precisely this quandary.
• The majority opinion paints a picture of the relevant facts that has evolved considerably from the first and second panel opinions to this final majority version. Compare Cole v. Carson, 802 F.3d 752, 755-56, 758 (5th Cir. 2015), vacated sub nom. Hunter v. Cole, --- U.S. ----, 137 S. Ct. 497, 196 L.Ed.2d 397 ( Cole I ), with Cole v. Carson, 905 F.3d 334, 337-340 (5th Cir. 2018) ( Cole II ), and supra . Qualified immunity for the use of deadly force is assessed at the moment a law enforcement officer confronts a suspect, Graham v. Connor , 490 U.S. 386, 397, 109 S. Ct. 1865, 1872, 104 L.Ed.2d 443 (1989), but the officer's understanding of facts leading up to the event color the question whether "a reasonable officer" could have believed his life or the lives of others were endangered. White v. Pauly , --- U.S. ----, 137 S. Ct. 548, 550, 552, 196 L.Ed.2d 463 (2017). To the majority's picture, it is necessary to add undisputed facts recited in the prior opinions and undisputed evidence from plaintiffs' experts. Hornbook summary judgment law holds that although disputed facts are viewed in the light most favorable to non-movants, the entire record must be considered. Scott v. Harris , 550 U.S. 372, 380, 127 S. Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). Further, this court reviews de novo the materiality of the relevant facts. Foley v. Univ. of Houston, Sys., 355 F.3d 333, 337 (5th Cir. 2003).
• Second, Cole emerged from the vegetation, unaware of the officers' presence, within ten to twenty feet of Officer Hunter, and as he turned toward the officers, three to five seconds elapsed. That's less time than it takes to read the preceding sentence. Cole initially stood at a 90 degree angle to the police and then began turning counterclockwise toward them. His movement is conceded by plaintiffs' expert, supported by the ballistic evidence, and recounted in the district court opinion. Cole II , 905 F.3d at 338 ("Cole began to turn counterclockwise."). Plaintiff's expert opines this interval was sufficient for the officers to command Cole to disarm and observe his reaction.
• The district court denied qualified immunity to Hunter and Cassidy for the shooting and refused to dismiss the allegations of falsified evidence against Hunter, Cassidy, and Carson.
• The original panel opinion affirmed, concluding as to the excessive force allegation that "if the Coles' version of the evidence is believed, it was not objectively reasonable to use deadly force against Ryan Cole when the teenager emerged on foot from the wooded area with a gun to his own head and turned left." With regard to immunity, the panel held that by October 2010, "reasonable officers were on notice that they could not lawfully use deadly force to stop a fleeing person who did not pose a severe and immediate risk to the officers or others, and they had many examples of the sorts of threatening actions which could justify deadly force. Turning left while unaware of an officer's presence is not among them." Cole I , 802 F.3d at 762 (emphasis added) (footnote omitted). The panel's principal support for its legal reasoning was Luna v. Mullenix , 773 F.3d 712 (5th Cir. 2014), rev'd sub nom. Mullenix v. Luna, --- U.S. ----, 136 S. Ct. 305, 193 L.Ed.2d 255 (2015). According to the panel, "the central [disputed] issue" is "whether Ryan pointed his gun at Officer Hunter." Cole I , 802 F.3d at 762. Absent such a threatening gesture, Cole was said to present no sufficient threat. Id.
• The next panel opinion was formulated after the Supreme Court reversed us in Mullenix on the grounds that "none of our [the Supreme Court's own] precedents 'squarely governs' the facts here. Given [the suspect's] conduct, we cannot say that only someone 'plainly incompetent' or who 'knowingly violate[s] the law' would have perceived a sufficient threat and acted as [the officer] did." 136 S. Ct. at 310. On this second go-round, the panel conceded the deficiency of the "no sufficient threat" rule, but then concluded that, taken in the light most favorable to the plaintiffs, Cole's conduct posed "no threat" when he was shot, Cole II , 905 F.3d at 343, and the officers therefore violated a clearly established "no threat" rule. Tennessee v. Garner is cited as the basis for this "bright line" rule. 471 U.S. 1, 105 S. Ct. 1694, 85 L.Ed.2d 1 (1985). This opinion was vacated by a vote to reconsider the case en banc.
• Pivoting yet again, the en banc majority opinion commences with a paean to "the worker's ... right to the protection of a jury," not even bothering to cite Supreme Court authorities that explain why qualified immunity is immunity from suit, not just liability. The majority opinion omits or ignores material undisputed facts recited above-the knowledge of the officers, Cole's turning toward them, the significance of his finger in a loaded pistol, and the three to five second interval-and hides behind the assertion that, relevant to qualified immunity, there are "genuine factual disputes as to Ryan's and the officers' conduct" such that a reasonable jury could find that Cole posed no "immediate threat" to the officers or others. Two paragraphs later, asserting that Cole posed "no threat ... to support firing without warning," the majority deem this an "obvious case" for denial of immunity, because the "officers had time and opportunity to give a warning and yet chose to shoot first instead." The "obvious case" rationale again derives, in the majority's view, from Garner , fortified only by one Fifth Circuit case and the Supreme Court's decision in Kisela v Hughes .
• The majority deny qualified immunity, seeming to answer on the basis of "disputed fact issues" that Cole posed "no threat." The majority's reasoning is at too high a level of generality. And the majority ignore the critical criterion for qualified immunity in Fourth Amendment cases: the reasonableness of the officers' reasonable perceptions. In sum, the majority here double down on the mistakes that got our court reversed in Mullenix .
• Before discussing these problems in detail, it is necessary to recapitulate the reasoning behind the Supreme Court's qualified immunity cases. The majority's bare mention of the standards for qualified immunity ignores the Court's rationale for the defense. Beginning with Monroe v. Pape in 1961, the Supreme Court unleashed federal courts to enforce constitutional commands against state actors pursuant to 42 U.S.C. § 1983. See Monroe v. Pape , 365 U.S. 167, 187, 81 S. Ct. 473, 484, 5 L.Ed.2d 492 (1961). A foreseeable consequence of facilitating such lawsuits was that a deluge of litigation would follow, at least some of it ill-founded or frivolous. What was to be done to limit claims to those that might have merit? The Court decided in Pierson v. Ray that police officers sued under Section 1983 should enjoy qualified immunity accorded at common law. 386 U.S. 547, 556-57, 87 S. Ct. 1213, 1219, 18 L.Ed.2d 288 (1967).
• For over fifty years, the Court has developed the standards of qualified immunity, well aware from the beginning that "the local police officer" is "that segment of the executive branch ... that is most frequently and intimately involved in day-to-day contacts with the citizenry, and hence, most frequently exposed to situations which can give rise to claims under Sec. 1983 ...." Scheuer v. Rhodes , 416 U.S. 232, 244-45, 94 S. Ct. 1683, 1691-92, 40 L.Ed.2d 90 (1974). The breadth of this shield represents a deliberate balance between affording a damages remedy for constitutional abuses and the social and personal costs inflicted by meritless claims. Anderson v. Creighton , 483 U.S. 635, 638, 107 S. Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). The costs to society include the costs of litigation, the diversion of limited public resources, the deterrence of able people from going into public service, and the danger that fear of being sued will discourage officials from vigorously performing their jobs. Id. ; Harlow v. Fitzgerald , 457 U.S. 800, 814, 102 S. Ct. 2727, 2736, 73 L.Ed.2d 396 (1982). The devastating costs imposed by unfounded lawsuits on officers otherwise entitled to immunity are reputational, potentially employment-related, financial and emotional. For these reasons, the Court has repeatedly explained that qualified immunity shields public officials not just from liability but from suit. See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) ; Pearson v. Callahan , 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L.Ed.2d 565 (2009) ("Qualified immunity is lost if a case is erroneously permitted to go to trial."). Some in the lower federal courts may disapprove of the Court's half century of authorities, but we may not functionally disregard them.
• Two years later, the Court clarified that for alleged Fourth Amendment excessive force violations, reasonableness "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham , 490 U.S. at 396, 109 S. Ct. at 1872. The calculus of "reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." Id . at 396-97, 109 S. Ct. at 1872. Ultimately, "the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them ...." Id . at 397, 109 S. Ct. at 1872. Quoting these statements from Graham , the Court later explained that the test for qualified immunity for excessive force "has a further dimension" in addition to the deferential, on-the-scene evaluation of objective reasonableness. Saucier v. Katz , 533 U.S. 194, 205, 121 S. Ct. 2151, 2158, 150 L.Ed.2d 272 (2001). Justice Kennedy explained: "The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct." Id . "Qualified immunity operates in this case, then, just as it does in others, to protect officers from the sometimes hazy border between excessive and acceptable force and to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful." Id . at 206, 121 S. Ct. at 2158 (internal citation and quotation marks omitted).