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Police Brutality in Texas? Robert Tolan Wins as 1983 Excessive Force Case Returned to Trial by US Supreme Court

Robert Tolan fights for justice.  How many other Texans have 1983 excessive force cases against police officers that they are afraid to file?

Earlier this month, the United States Supreme Court reversed the decision of our own Fifth Circuit Court of Appeals (the federal appellate court that grades the papers of federal criminal trial courts here in Texas) in a case where a Bellaire Police Officer shot Robert Tolan, who plays pro basketball for the Washington Nationals and is the son of famed professional baseball player Bobby Tolan. (FYI: Bellaire is a affluent community, and a separate municipality located inside the city of Houston.)



This shooting happened back on New Year’s Eve 2008. The Bellaire cop explained at the time that he decided to use deadly force in pulling his weapon and shooting Tolan after believing that Tolan had stolen the car he had just exited in a Bellaire driveway. Thing is, it was Tolan’s own car (he and a pal had just returned home after a food run to Jack in the Box). Nevertheless, at the end of the altercation, Tolan had been shot in the chest three times by the police officer, sustaining life-threatening injuries, there on the front porch of his parents’ home.

Some argue that the police officer was suspicious because a tall African American man was out and about in Bellaire at two o’clock in the morning, when not too many non-Caucasians live in Bellaire. They’re calling this case one of racial profiling and police racism.

The police officer was indicted by a Harris County Grand Jury on aggravated assault charges. There was a criminal trial; the Bellaire police officer was found not guilty by the jury in the criminal case in May 2010.

Civil Suit Filed Based Upon Police Brutality and Excessive Force

However, there are criminal courts and civil courts and the criminal case didn’t preclude Robert Tolan from proceeding with a civil case. So Tolan sued the individual officer who shot him as well as the City of Bellaire. The lawsuit is a civil rights action based upon federal constitutional protections and the Federal Civil Rights Act, generally referred to as “a § 1983 Action.”

The trial court judge granted a summary judgment request by the defendants, who asserted that qualified immunity protected the officer and his employer from civil damage liability under the Civil Rights Act. The Fifth Circuit Court of Appeals agreed.

However, Tolan was not done. He took his case all the way to the Supreme Court and won.

U.S. Supreme Court Sends Case Back to the Trial Court

This month, in the case of Tolan v. Cotton, the Supreme Court reversed the Fifth Circuit and sent Tolan’s case back to the trial courtroom for further litigation. It was an interesting scenario because the High Court didn’t wait to hear oral arguments from Tolan’s lawyers or from the Bellaire attorneys nor did the Justices wait for all the briefs to be filed by the parties before issuing this ruling.

Generally, there are lots of briefs filed — with argument and supporting authorities not only from the parties to the case but from outside interests, too, called “amicus curaie” or “friends of the court.” And there’s usually a scheduled oral argument where the lawyers come before the Justices themselves, to argue their side of things and answer questions from the Justices in black robes from the appellate bench.

Not this time.

In an unanimous decision, the Supreme Court found that there had been a failure to do something that is required in all summary judgment requests: to consider the facts in a light that favors the plaintiff. It is only after viewing all the evidence “in the light most favorable” to the plaintiff that there can be a proper grant of a summary judgment for failure of the plaintiff to present a viable case. In Tolan’s case, this rule had not been followed according to the Supreme Court.

In its per curiam opinion, the Justices go into detail over this summary judgment situation, listing several key facts that are indeed in dispute and therefore precluding any proper summary judgment in this situation.

From the High Court:

During the early morning hours of New Year’s Eve, 2008, police sergeant Jeffrey Cotton fired three bullets at Robert Tolan; one of those bullets hit its target and punctured Tolan’s right lung. At the time of the shooting, Tolan was unarmed on his parents’ front porch about 15 to 20 feet away from Cotton. Tolan sued, alleging that Cotton had exercised excessive force in violation of the Fourth Amendment. The District Court granted summary judgment to Cotton, and the Fifth Circuit affirmed, reasoning that regardless of whether Cotton used excessive force, he was entitled to qualified immunity because he did not violate any clearly established right. 713 F. 3d 299 (2013). In articulating the factual context of the case, the Fifth Circuit failed to adhere to the axiom that in ruling on a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986). For that reason, we vacate its decision and remand the case for further proceedings consistent with this opinion….

Tolan Trial Moves Forward: a Call to Other Victims of Excessive Force

Tolan must still win. The trial continues now, the attempt to gut it quickly (summarily) by the defendants has failed.

Still, the fact that a man shot three times in the chest in his own Texas driveway and who has had to fight his way to the Supreme Court of the United States in order to get his day in court against the police officer who shot him is important to all Texans. This man has the conviction and personal courage to mount this kind of fight — what about all those who are victims of excessive force and police brutality who are victims that are afraid to sue the police for excessive force?

Wrongs cannot be righted without taking a stand. Let’s hope others follow the example of Robert Tolan and fight the good fight for justice despite their fears.

As Justice Alito stated in his concurrance:

There is no question that this case is important for the parties, but the same is true for a great many other cases that fall into the same category.

Dallas Police Department Excessive Force Cases: $6,000,000 Damages Paid in 36 Months

And before anyone suggests that police officers using excessive force isn’t a serious problem in Texas and here in Dallas, consider this: just a week ago, the local news reported on 10 different 6-figure settlements or verdicts involving the Dallas Police Department in the past three years (since 2011). The Dallas Police Department has had to pay over $6,000,000 in damages based upon excessive force claims in cases brought against them in the past 36 months.

That’s a real problem, folks.

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