U.S. 5th Circuit holds officers violate due process rights if they fabricate evidence, even if the DA never brings charges and no trial occurs; however fact question exists as to fabrication

Cole v. Carson No. 14-10228 c/w No. 15-10045 (5th Cir. September 25, 2015),

This is an excessive force/qualified immunity case where the U.S. Court of Appeals for the Fifth Circuit affirmed the denial of law enforcement officers’ qualified immunity motions.  However, the main thrust of the case (and the reason it is so long) is the analysis and holding that an officer violates an individual’s due process rights if they fabricate evidence to secure an arrest, even if the case never results in a trial.

Cole was a seventeen-year-old male who disappeared from his parents’ house after an argument.  He took several firearms with him. When police located him he threatened to shoot himself. Accounts differ as to what happened next as Officers Hunter and Cassidy allege Cole turned towards them and pointed his gun in their direction, resulting in the officers firing and hitting Cole in several spots. Cole alleges he turned towards the direction of officers with his gun still pointed at his own head and that he never pointed the gun at the officers. Cole sued Hunter and Cassidy for excessive force and Officer Carson for allegedly conspiring to plant evidence in order to protect Hunter and Cassidy. The officers filed various motions based on qualified immunity which the trial court denied. The officers took interlocutory appeals at different times, but the 5th Circuit consolidated all appeals into this opinion.

After going through a lengthy rendition of the facts, the court held the fact that a person has a gun and is behaving in a dangerous manner does not necessarily constitute an immediate and serious threat justifying use of deadly force. The court held there is “no open season on suspects with guns” simply because they possess one at the time. The officers did not attempt to obtain compliance prior to opening fire. The court distinguished its prior case law in matters where a suspect refused to comply with police directives prior to the use of force.  It also pointed to case law noting that when a suspect complies and is cooperative, shooting someone simply because a gun is within their possession or reach is not justified.  As a result, a fact question exists as to the excessive force claims. The court then found the allegation Carson lied in order to subject Cole to arrest could be a violation of his due process rights. The issue addressed was whether due process was violated since the charges never made it to trial.  The DA dropped the charges prior to any conviction or acquittal. After analyzing various other circuits, the 5th Circuit officially adopted a position an individual’s due process rights are violated if charges rest on fabricated evidence, regardless of whether the charges make it to trial or not. “Deliberate framing of a person by the state offends the most strongly held values of our nation” and shocks the conscience of the court. “Where police intentionally fabricate evidence and successfully get someone falsely charged with a felony as cover for their colleagues’ actions, and the Fourth Amendment is unavailing, there may be a due process violation.”  The court also addressed Carson’s absolute immunity to give testimony to the grand jury (which protects him even from false testimony).  The court held Carson’s alleged actions were not those of a witness submitting to the grand jury, but were actions aimed at getting investigators to bring charges as part of an initial investigation. The timing was critical.   As a result, the absolute privilege does not apply. The court did explain that the holding is based on what is pled and the disputed facts.  No ultimate holding that Cole was framed exists.  However, the allegation and evidence survive summary judgment.

If you would like to read this opinion click here. Panel: Higgenbothamk Clement, and Higginson.  Opinion by Justice Higgenbotham.