Mentally Ill Man's Tragic Death By Police Gunfire Must Go To Jury

MEADORS v. ERMEL, USCA-5 No. 05-20764, 2007 U.S.App. LEXIS 7592, on appeal from USDC-TXSD, before USCJs Reavley, DeMoss, and Benavides, opinion by DeMoss, filed 02 Apr 2007.

LONG STORY SHORT: Disputes of fact as to who shot a screwdriver-armed mentally ill man with what type projectile, and when, did not allow pretrial qualified immunity for officers involved in the shooting. Binding in LA, MS, TX.

FACTS: Decedent suffered from severe mental illness, which the 9/11 attacks aggravated. By 29 Oct 2001, Decedent was paranoid and delusional, but his prior experience in secure mental health care did not incline him toward getting help. Decedent's Sister called 911 to get help, making it clear that she was not reporting a crime. An EMS unit and Officers Ermel, Kominek, Dalton, and Martin of City of La Porte, TX PD responded. Sister briefed them on Decedent's bizarre behavior and cautioned them that Decedent was 6'2" and 203 pounds, very strong, and had tools that could be dangerous.

Officers found Decedent in his backyard, sitting in a swing and wearing four to six baseball caps and a tool belt that had a stuffed animal dangling from it. Officer Kominek announced himself, and Decedent stood up, holding a large screwdriver. The officers believed that Decedent was a threat to himself and others, and they could not just let him leave. After instructing two other officers to prepare to restrain Decedent, Officer Ermel fired a beanbag round into Decedent's thigh. Decedent ran over to a dog pen, jumped over the fence, and stood on the doghouse. Officer Ermel hit Decedent with a second beanbag, without result, and fired a third beanbag. Decedent jumped or fell off the doghouse, but an expert would later testify that a bullet, not a beanbag, hit him. Decedent, with his screwdriver in a stabbing grip, ran toward a door near which Officer Kominek was standing, and the officer all believed Decedent was attacking Officer Kominek. He and Officers Dalton and Martin fired a total of 23 rounds from their service sidearms, hitting Decedent 14 times and killing him.

PROCEDURE: Decedent's estate sued the officers in U.S. District Court for the Southern District of Texas per 42 U.S.C. § 1983 for excessive use of force and for numerous state-law claims. After extensive discovery, Defendants all moved for summary judgment on qualified immunity grounds. The trial court ruled that since all officers had acted in unison, their actions should be analyzed collectively. In that light, material facts were still in dispute and had to go to the jury. Also, Officer Ermel argued that since he fired only beanbags, he should not be liable, but the trial court ruled that beanbags were deadly force for Fourth Amendment purposes. QUALIFIED IMMUNITY DENIED in all respects. Defendants appealed to the U.S. Court of Appeals for the Fifth Circuit.

DECISION: The trial court erroneously applied a novel theory of collective action to the officers. There is simply no such legal test; courts must consider each officer's action individually, even if one or more officers' actions turn out to be indistinguishable from each other. On remand, the trial court was not to repeat the error.

Appellate courts have no jurisdiction to review facts surrounding qualified immunity, or even to review trial courts' holdings that issues of fact are genuine. Whether the genuine issues of fact are relevant to qualified immunity, however, is a legal question reviewed de novo. Here, the dispute about whether Decedent received a bullet while still on top of the doghouse armed only with a screwdriver was relevant, because a jury could find that Decedent was not an imminent threat then, and should not have been shot. Officer Ermel's contention that a beanbag round is not deadly force was also an issue of fact and unreviewable at this stage. Just when and why Defendants fired at Decedent were material questions of fact as to which each side had its account. Furthermore, Decedent was mentally ill, not a criminal, and that fact diminished the government interest in use of force. Which side would ultimately prevail, the Fifth Circuit knew not. DENIAL OF QUALIFIED IMMUNITY AFFIRMED; cause remanded for trial.

EDITORIAL: What a tragedy, and probably unavoidable. Lord's peace on all concerned. All we can do is wait for the jury. Well, except to take issue with the ruling that beanbags (stun projectiles fired from a shotgun) are deadly force. If so, why not just stick with buckshot and lead slugs? Something wrong there.