Senior Judge Patrick Higginbotham.

The U.S. Court of Appeals for the Fifth Circuit has declined for a second time to dismiss excessive force claims against two Sachse police officers accused of wrongfully shooting a teenage boy.

The decision, Cole v. Carson, concerns Ryan Cole, a Sachse High School student who suffered from obsessive-compulsive disorder. On Oct. 25, 2010, after a quarrel with his parents, Cole, then 17 and a junior at the high school, took guns and ammunition from their gun safe and left the house. After staying with a friend, Cole left to meet his grandparents at a nearby CVS.

According to the court, police were informed that Cole was carrying at least one handgun and was acting aggressively. The police began looking for him. Cole was seen by several officers and ordered to stop, but he continued to walk away from the officers with a handgun pointed to his head, the court said.

Cole crossed and backed out of some woods near Officer Michael Hunter, who was some distance from officers Martin Cassidy and Carl Carson. The officers believed Cole was unaware of Officer Hunter when he backed out, and Hunter remained quiet so as not to alert him.

Ryan then made a turning motion to his left—the officers say he turned to face Hunter and pointed his gun, though the Coles contend that Ryan merely turned toward the CVS while still pointing the gun at his own head.

Whether a warning was given by police is disputed, but Hunter and Cassidy opened fire, hitting Cole twice. Cole’s gun also discharged, hitting his own head.

Cole was severely injured and now has profound disabilities and continues to require care. He and his parents filed 42 U.S.C. § 1983 claims in federal court against the police officers, alleging they violated Ryan’s Fourth and Fourteenth Amendment rights during the shooting and by an alleged subsequent fabrication of evidence.

All of the officers asserted the defense of qualified immunity—motions the trial court rejected. In a 2015 decision, the Fifth Circuit affirmed the district court decisions, with the exception of the fabrication of evidence claim lodged against Carson.

In 2017, the U.S. Supreme Court vacated the Fifth Circuit’s judgment and remanded the case for further consideration in light of the high court’s decision in Mullenix v. Luna. In that 2015 decision, the Supreme Court held that a police officer who shot a suspect was entitled to qualified immunity, noting that their prior precedent did not establish beyond debate that the officer’s actions were objectively unreasonable.

On remand, the Fifth Circuit in a Sept. 25 decision concluded that it should be left up to a jury to decide whether Cassidy and Hunter should be given qualified immunity from the excessive force claims.

“Qualified immunity is a judicially created doctrine calculated to protect an officer from trial before a jury of his or her peers. At bottom lies a perception that the jury brings a risk and cost that law-enforcement officers should not face, that judges are preferred for the task—a judgment made by appellate judges,” wrote Senior Judge Patrick Higginbotham.

“Cassidy and Hunter are not entitled to qualified immunity at this point in the case,” Higginbotham concluded in the decision. “Immunity from trial is an important component of qualified immunity, but denial at this stage does not necessarily deprive the officers of the immunity defense as to liability. We decide only that it will be for a jury to resolve what happened on October 25, 2010, and whether Cassidy and Hunter are or are not entitled to the defense.”

Jack Ayres, an Addison attorney who represents the Coles, is pleased with the decision.

“Judge Higginbotham’s opinion in the first case was excellent—one of the best I’ve ever read. I feel the same about this opinion,” Ayres said. “The question of qualified immunity in 1983 cases is a subject of considerable concern in the legal community and it is also important because what appears to be factual determinations are being made by judges as opposed to juries.”

Arlington attorney James T. Jeffrey Jr., who represents the police officer defendants, did not return a call for comment.