United States Court of Appeals
UNITED STATES COURT OF APPEALS
November 9, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
CHIARRA CARRIERE BACQUE, INDIVIDUALLY AND ON BEHALF OF
KARTER BACQUE, ON BEHALF OF KASE BACQUE,
ON BEHALF OF LINSEY BACQUE,
CHAD LEGER, ETC; ET AL.,
CHAD LEGER, IN HIS OFFICIAL CAPACITY AS
CHIEF OF POLICE; CITY OF SCOTT, ON BEHALF OF
POLICE DEPARTMENT CITY OF SCOTT;
BYRON ROMERO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
DAVID SONNIER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY,
Appeal from the United States District Court
Western District of Louisiana
Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.
EDITH H. JONES, Chief Judge:* This court has carefully considered the appeal of Officers Sonnier and Romero, which asserts that the district court erred in denying qualified immunity from § 1983 liability for the events that led to the death of suspect Ken Bacque. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. This court has interlocutory jurisdiction over issues of law related to qualified immunity. Atteberry v. Nocona Gen. Hosp.,
386, 395, 109 S. Ct. 1865, 1871 (1989)).
Having reviewed the parties' contentions in light of these standards, we conclude that Plaintiffs have not overcome Officer Sonnier's assertion of qualified immunity. No material facts are in dispute. The only relevant fact to this inquiry is that Officer Sonnier "froze" during the confrontation with Ken Bacque. There are neither allegations nor evidence that Sonnier exerted any force, much less excessive force, against Ken Bacque.
Plaintiffs have cited no authorities, and we are aware of none, where an officer's inaction during a police-suspect confrontation resulted in his liability for use of excessive force. The district court erred in denying immunity to Officer Sonnier.
As for Officer Romero, however, it appears that the facts surrounding his shooting of Ken Bacque are highly controverted.
There is evidence, if believed, that Officer Romero shot Ken Bacque while he stood motionless with his knife at his side and had ceased to menace anyone; that Officer Romero stood at least ten to forty feet away from Ken Bacque; that Ken Bacque was not threatening anyone at this time; that no officer warned Ken Bacque to drop his knife; and that Ken Bacque no longer posed a physical threat to Officer Romero, or to anyone else at the time he was shot. Because material facts surrounding the shooting are in dispute, we lack jurisdiction over Romero's appeal and cannot conclude as a matter of law that he did not violate Bacque's Fourth Amendment rights or that he is entitled to qualified immunity.
Each qualified immunity case must be analyzed according to its peculiar facts. Consequently, the cases cited on behalf of Officer Romero are of little assistance here, principally because the suspects in those cases were charging toward or fighting with the officers and the suspects possessed or were thought to possess guns.
For the foregoing reasons, the judgment denying qualified immunity to Officer Sonnier is REVERSED; the appeal of Officer Romero is DISMISSED. This matter is REMANDED for further proceedings as appropriate.
REVERSED in part, DISMISSED in part, and REMANDED.
This document cites
- U.S. Court of Appeals for the Fifth Circuit - Roderick Keith Johnson, Plaintiff-Appellee, v. Gary Johnson, Et Al., Defendants, Gary Johnson; Robert R. Treon, Senior Warden Allred Unit; Richard E. Wathen; James D. Mooneyham, Assistant Warden Allred Unit; Tommy Norwood, Major; Kenneth Bright, Major; Tracy Kuyava, Administrative Technician Unit Classification Committee; Tina Vitolo, Administrative Technician Unit Classification Committee; Vikki D. Wright, Director, Classification; Joseph Boyle, Captain; Jimmy Bowman, Major; Kenneth Willingham, Sergeant; Oscar Paul, Lieutenant; Onessimo Ranjel, Lieutenant; David Taylor, Lieutenant, Defendants-Appellants.
- U.S. Court of Appeals for the Fifth Circuit - Nadine Johnson, Plaintiff-Appellant, v. Deep East Texas Regional Narcotics Trafficking Task Force; Et Al., Defendants, Nacogdoches County; Kim Courtney, Task Force Member; Ramiro Mendiola, Nacogdoches County Sheriff Deputy, Defendants-Appellees., 379 F.3d 293 (5th Cir. 2004)
- U.S. Supreme Court - Tennessee v. Garner, 471 U.S. 1 (1985)
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