Cole v. Carson

What Happened

On October 25, 2010, seventeen-year-old Ryan Cole was walking through a neighborhood in Garland, Texas, holding a handgun pointed at his own head. He was suicidal. Police from neighboring Sachse responded. Officers Cassidy and Hunter, along with Officer Carson, made their way to an area along Highway 78 where Ryan was expected to emerge from a wooded area.

The officers concealed themselves along a tree line. Hunter even removed his white motorcycle helmet to be less visible. When Ryan backed out of the brush, he was — according to the facts viewed in the plaintiff’s favor — unaware of the officers’ presence. His gun was pointed at his own head, never at the officers. He never made a threatening or provocative gesture.

The district court found that the officers “had the time and opportunity to give a warning” but instead “chose to shoot first.” Hunter and Cassidy fired multiple times. Hunter’s first shot struck Ryan as he was turned 90 degrees away — not facing the officers. As Ryan’s body turned from the impact, he involuntarily pulled his own trigger, shooting himself in the temple.

After the shooting, the Coles alleged that the three officers stayed together at the scene and fabricated a story: that Ryan had turned toward Hunter and pointed his weapon at the officer, prompting defensive fire. The Dallas County DA presented the officers’ narrative to a grand jury, which no-billed the officers and charged Ryan with felony aggravated assault. Only after a ballistics report showed Ryan had shot himself — making the officers’ story impossible — were the charges dropped. Ryan suffered permanent cognitive impairment, partial paralysis, and other serious disabilities.

What the Court Decided

In this landmark en banc decision, the Fifth Circuit held (11-6) that Cassidy and Hunter were not entitled to qualified immunity on the excessive force claim. The court carefully applied Mullenix v. Luna and found this was an “obvious case” under Tennessee v. Garner.

The majority emphasized that its jurisdiction on interlocutory appeal was limited to examining whether disputed facts were material — it could not second-guess the district court’s factual determinations. Taking the facts as the district court found them: Ryan posed no threat, was facing away, was unaware of the officers, and was given no warning before being shot. Under those facts, the officers’ conduct clearly violated the Fourth Amendment.

On the fabrication-of-evidence claims, the court affirmed denial of the motion to dismiss the Fourteenth Amendment false-charge claim (officers can be liable for fabricating evidence to impose false criminal charges), but reversed on the Fourth Amendment and Brady fabrication claims on qualified immunity grounds.

What It Means in Practice

Cole v. Carson is one of the Fifth Circuit’s most important excessive force decisions. It demonstrates that even after Mullenix raised the bar for clearly established law, officers who shoot without warning when they have time to warn — and when the suspect poses no immediate threat — violate clearly established law. The “obvious case” doctrine from Garner still has teeth.

The case is equally significant for its fabrication-of-evidence holding. Officers who concoct false narratives to justify a shooting and then use those lies to bring criminal charges against the victim can face Fourteenth Amendment liability.

How You Can Use It

• Excessive force with no warning: If officers had time to warn and chose to shoot first, cite Cole for the proposition that this violates clearly established law — even post-Mullenix.
• Key quote: The district court found that “Officers had the time and opportunity to give a warning and yet chose to shoot first instead.” 68 F. Supp. 3d at 645. The en banc majority held: “This is an obvious case.”
• Fabrication of evidence: If officers fabricated a narrative after a use-of-force incident and that narrative led to criminal charges against you, cite Cole for Fourteenth Amendment false-charge liability.
• Template language: “As the Fifth Circuit held en banc in Cole v. Carson, 935 F.3d 444 (5th Cir. 2019), shooting a person who poses no immediate threat to officers, without warning, when a warning is feasible, violates clearly established law under Tennessee v. Garner.”
• When to cite: Any excessive force case involving failure to warn, shooting a suicidal person, or officers fabricating post-hoc justifications.

How It Can Be Used Against You

• Disputed facts: The officers in Cole had a dramatically different version of events. If the facts in your case aren’t disputed — if video or other evidence supports the officers’ account — Cole’s holding won’t help. The case turned on the existence of genuine factual disputes that precluded summary judgment.
• Mullenix specificity: Defendants will argue that Cole is limited to its extreme facts — a suicidal teenager, facing away, shot without warning. If your facts differ significantly, they’ll argue the law wasn’t clearly established for your scenario.
• Evolving officer stories: The dissent (6 judges) argued the undisputed pre-encounter facts — Ryan was armed, suicidal, non-responsive to police — justified the officers’ use of force regardless of whether a warning was given.

How to counter: Focus on what the officers knew at the moment they fired, not what they learned later or what other officers knew. Cite White v. Pauly, 137 S. Ct. 548, 550 (2017): “the Court considers only the facts that were knowable to the defendant officers.” If the officers’ post-hoc story contradicts physical evidence, emphasize the evolving narrative as evidence of fabrication.