Randy Cole, et al v. Michael Hunter, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 14-10228

RANDY COLE; KAREN COLE; RYAN COLE,

Plaintiffs - Appellees

v.

CARL CARSON,

Defendant - Appellant

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cons. w/15-10045

RANDY COLE; KAREN COLE; RYAN COLE,

Plaintiffs - Appellees

v.

MICHAEL HUNTER; MARTIN CASSIDY,

Defendants - Appellants

Appeals from the United States District Court
for the Northern District of Texas

Before OWEN, Chief Judge, and HIGGINBOTHAM, JONES, SMITH,
STEWART, DENNIS, CLEMENT, ELROD, SOUTHWICK, HAYNES,
United States Court of Appeals
Fifth Circuit
FILED
April 24, 2020

Lyle W. Cayce
Clerk

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2
GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT,
and OLDHAM, Circuit Judges.
PER CURIAM:
IT IS ORDERED that Appellants’ opposed motion to recall the mandate
is DENIED.
IT IS FURTHER ORDERED that Appellants’ opposed motion to stay the
district court proceedings is DENIED.
Fifteen judges voted against recalling the mandate (Chief Judge Owen,
Judge Higginbotham, Judge Smith, Judge Stewart, Judge Dennis, Judge
Elrod, Judge Southwick, Judge Haynes, Judge Graves, Judge Higginson,
Judge Costa, Judge Willett, Judge Duncan, Judge Engelhardt, and Judge
Oldham), and two voted in favor of recalling the mandate (Judge Jones and
Judge Ho).
Judge Ho dissented from the Court’s denial of the motions. His Dissent
is attached.

ENTERED FOR THE COURT:

/s/ Patrick E. Higginbotham
United States Circuit Judge

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JAMES C. HO, Circuit Judge, joined by EDITH H. JONES, Circuit Judge,
dissenting:
We should have granted qualified immunity to the police officers in this
case—not because there is no “clearly established” violation, see Horvath v.
City of Leander, 946 F.3d 787, 800–03 (5th Cir. 2020) (Ho, J., concurring in the
judgment in part and dissenting in part) (criticizing the “clearly established”
prong of qualified immunity doctrine on textual and other grounds)—but
because there was no Fourth Amendment violation at all, see Cole v. Carson,
935 F.3d 444, 478 (5th Cir. 2019) (en banc) (Ho and Oldham, JJ., dissenting)
(concluding that there is no Fourth Amendment violation when officers take
reasonable steps to stop a potential mass school shooter).
1

Barring that, we should at least grant the officers’ request for a limited
stay while the Supreme Court considers their petition for certiorari.
Perhaps the en banc majority declines the stay request because the
officers did not make it earlier, before we issued the mandate in this case. But
the officers’ timing is understandable. The district court put a stay in place
over three years ago and lifted it only recently.
Moreover, this is a modest request. The officers simply ask us to recall
the mandate and stay further proceedings in this case pending Supreme Court
review of their certiorari petition—a stay that would likely last only until June.
We have granted relief from the burdens of litigation to countless
individuals during the current pandemic. We should grant relief here as well.
I.
We grant stays pending appeal or certiorari where further proceedings
could irreparably injure the very interests at stake on appeal. That is the case

1
See also id. at 458 (Jones, J., dissenting) (“[The officers] were entitled to receive
summary judgment confirming their immunity.”); id. at 470 (Smith, J., dissenting) (same);
id. at 473 (Willett, J., dissenting) (same); id. at 479–80 (Duncan, J., dissenting) (same).

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here. As the Supreme Court has made clear, qualified immunity is more than
a right not to be held liable—it is an “entitlement not to stand trial or face the
other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). So
“when a public official takes an interlocutory appeal to assert a colorable claim
to absolute or qualified immunity from damages, the district court must stay
proceedings.” Goshtasby v. Bd. of Trs. of the Univ. of Ill., 123 F.3d 427, 428
(7th Cir. 1997). And if the district court does not, we may do so on appeal. Cf.
United States v. Dunbar, 611 F.2d 985, 989 (5th Cir. 1980) (en banc) (“This
Court is, of course, empowered to protect the defendant’s double jeopardy
rights by staying proceedings below pending appeal.”).
The fact that the mandate must first be recalled before we can issue the
stay should pose no obstacle. “[C]ourts of appeals have an inherent power to
recall their mandates, the exercise of which is subject to review for abuse of
discretion.” Goodwin v. Johnson, 224 F.3d 450, 459 (5th Cir. 2000).
Recall of the mandate is, of course, an extraordinary remedy. “Usually
the issuance of a mandate by this court means that the litigation has come to
an end.” Gradsky v. United States, 376 F.2d 993, 995 (5th Cir. 1967). “[A]bsent
good cause or unusual circumstances,” we would not recall a mandate “to
modify or vacate a prior judgment.” Am. Iron & Steel Inst. v. EPA, 560 F.2d
589, 595 (3rd Cir. 1977).
But the request here is not to modify or vacate a prior judgment, but to
stay further proceedings pending Supreme Court review. We have recalled the
mandate “to prevent injustice” to a convicted criminal defendant “after he had
petitioned the Supreme Court for certiorari.” Gradsky, 376 F.2d at 995 & n.2.
If recalling the mandate after the filing of a certiorari petition is appropriate
for a convicted criminal defendant, surely it is appropriate for the police officers
in this case. After all, enforcement of the mandate here risks imposing an

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unjust result on them—namely, the loss of the officers’ “right, not merely to
avoid ‘standing trial,’ but also to avoid the burdens of ‘such pretrial matters as
discovery.’” Behrens v. Pelletier, 516 U.S. 299, 308 (1996) (quoting Mitchell,
472 U.S. at 526). And the officers have a strong claim to that right—as the
multiple en banc dissenting opinions from our court make clear—while the
Supreme Court considers their petition.

II.
The officers did not initially request that the en banc court stay its
mandate because the district court had already stayed proceedings in the case
years ago. But now the district court has lifted its stay out of deference and
respect to the en banc court.
2

The district court’s deference is admirable, but unnecessary. Issuance of
our mandate directed the district court to move forward and try this case
within its sound discretion. That includes the “broad discretion to stay
proceedings as an incident to its power to control its own docket.” Clinton v.
Jones, 520 U.S. 681, 706 (1997).
Perhaps the district court will reconsider. After all, the officers’ request
is modest. These proceedings have already been stayed for over three years.
The officers simply ask for a few more months of relief—just until the Supreme
Court resolves their certiorari petition, which will likely occur before the end
of the Court’s term in June.
Such relief is well within the discretion of the judiciary to grant. In
response to the current pandemic, federal courts have postponed proceedings

2
The district court expressed concern that granting a stay “would practically
disregard the mandate and thereby undercut [its] conclusion that it ‘lacks authority to stay
the execution of the appellate court’s mandate.’ ” Order 2 (Mar. 4, 2020), ECF No. 209
(quoting another source). That echoes its earlier concern that maintaining the stay would be
tantamount to staying this court’s mandate—a power it concluded only this court or the
Supreme Court possessed. Order 3–4 (July 19, 2016), ECF No. 180.

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and deadlines for convicted criminals. Our court has categorically extended all
filing deadlines for incarcerated pro se filers by thirty days. Order ¶ 2, General
Docket No. 2020-4. The Northern District of Texas—where district court
proceedings in this case are occurring—has indefinitely continued guilty plea
proceedings and guilty pleas. Special Order No. 13-6. The Northern District
has also granted a sixty-day extension to those “who have been ordered to
voluntarily surrender to a Bureau of Prisons facility before May 1, 2020.”
Special Order No. 13-10.
We should provide the modest relief from the burdens of litigation
requested by the police officers in this case as well.
* * *
The current global crisis has resulted in renewed appreciation for the
millions of Americans who keep our country going—the farmers, food
processors, and grocery store clerks who keep our pantries stocked and our
children fed; the truckers who keep our supply chain moving; and the doctors,
nurses, and other health care workers who treat our sick. That appreciation
is long overdue, but it is especially warranted today, when those who agree to
take on this work do so at heightened risk to their own lives.
There is one group, however, that does not need reminding that there
are jobs people wake up to each morning not knowing whether they will return
home alive—police officers.
I would recall and stay the issuance of our mandate pending resolution
of the certiorari petition.