IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________

No. 94-10456

_______________

MICHAEL BAULCH, GISELA S. BAULCH, individually and on behalf of their deceased son KENNETH BAULCH; and as next friend of KYLE WAYNE BAULCH,

Plaintiffs-Appellees,

VERSUS

ROBERT C. JOHNS,

Defendant-Appellant.

_________________________

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

_________________________ November 29, 1995 Before SMITH and BARKSDALE, Circuit Judges, and BUCHMEYER, District Judge.

JERRY BUCHMEYER, District Judge:*

This is an interlocutory appeal by a Garland police officer from the district court’s

denial of his motion for summary judgment based on the doctrine of qualified immunity.

Because there are disputed issues of material fact concerning the qualified immunity defense,

we lack jurisdiction to consider the interlocutory appeal. Accordingly, we dismiss. In

addition, because counsel for appellant has multiplied these proceedings unreasonably and

vexatiously, we impose sanctions against counsel pursuant to 28 U.S. C. § 1927.

I. The Factual Dispute

It is undisputed that the defendant, Garland Police Officer Robert C. Johns (“Johns”),

* /Chief Judge of the Northern District of Texas, sitting by designation.

1 shot and killed Kenneth Baulch (“Baulch”) in Baulch’s home on February 14, 1991. However,

the material facts underlying this incident are hotly disputed.

According to Johns, he shot and killed Baulch in self-defense. Specifically, Johns claims

that he and other members of the Garland Police Department, acting under a valid search

warrant, entered Baulch’s residence to search for illegal narcotics; that Baulch fled into a

bedroom on the south side of the home; that Johns entered the south bedroom in pursuit; but

that Baulch ambushed Johns and began pounding him with an unidentified weapon. Johns

insists that this attack forced him to shoot and kill Baulch from a defensive, crouching

position.

Not surprisingly, Baulch’s parents (“plaintiffs”) present a decidedly different version.

According to them, when Johns and the other Garland police officers raided Baulch’s

residence, Baulch was sleeping in the south bedroom. As Baulch was awakened by the raid,

Johns forcibly entered the south bedroom, ordered Baulch to “freeze,” but then immediately

shot Baulch before he could comply with this command. Plaintiffs support these allegations

with an autopsy report documenting the examination performed on Baulch the following day,

February 15, 1991, at the Southwestern Institute of Forensic Sciences under the authority of

the Dallas County Medical Examiner (“Autopsy Report”). This Autopsy Report -- a copy of

which was provided to the plaintiff’s attorney by Garland Chief of Police Terry Hensley --

concludes that, of the four gunshots that struck Baulch, three bullets entered Baulch’s body

from the back. Thus, the Autopsy Report creates this obvious factual dispute: did Johns shoot

Baulch in the back without justification, or did Johns shoot Baulch to prevent him from

continuing a deadly assault on Johns?

II. Procedural Background

Plaintiffs brought suit against Johns individually under

, alleging that

Johns employed excessive deadly force in violation of Baulch’s rights under the Fourth

Amendment. Johns moved for summary judgment, arguing that the doctrine of qualified

2 immunity shielded him from suit. The district court, reasoning that the Autopsy Report alone

was sufficient to create fact questions as to whether Baulch was shot in the back three times

while he was retreating from Johns, denied the motion for summary judgment. Johns filed

this interlocutory appeal from the denial of his qualified immunity defense.

III. Analysis

In substance, Johns urges two points on appeal. First, he claims that the Autopsy

Report alone is insufficient to create a genuine issue of material fact as to his qualified

immunity defense. Second, Johns argues that the district court abused its discretion in

considering the Autopsy Report because that report had not been properly authenticated by

the plaintiffs. The first argument is specious, the second is frivolous, and neither merits

extended discussion.

A. An interlocutory appeal must present an issue of law, not a dispute about the facts

It is well-settled that “a district court’s denial of a claim of qualified immunity, to the

extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of

notwithstanding the absence of a final judgment.”1/ However, as the

Supreme Court made clear in Johnson v. Jones, _____ U.S. _____,

,

(1995), “a defendant, entitled to invoke a qualified immunity defense, may not appeal

a district court’s summary judgment order insofar as that order determines whether or not

the pretrial record sets forth a ‘genuine’ issue of fact for trial.”2/ Indeed, even before Johnson,

1 /Mitchell v. Forsyth,

,

,

(1985). See also Hale v. Townley,

(5th Cir. 1995). 2 /Id at _____,

. Accord, Hale,

; Boulos v. Wilson,

(5th Cir. 1987).

3 we had consistently held that a district court’s denial of a qualified immunity summary

judgment is not appealable when there are disputed issues concerning the immunity claim.

Tamez v. City of San Marcos, Texas,

(5th Cir. 1995); Johnston v. City of Houston,

(5th Cir. 1994); Lampkin v. City of Nacogdoches,

(5th Cir.

1993), cert. denied, _____ U.S. _____,

,

(1994).

This appeal does not present an issue of law. Instead, Johns merely argues that the

district court was wrong in concluding that the Autopsy Report creates a genuine issue of

material fact concerning this central issue: did Johns shoot Baulch in self-defense or did he

shoot Baulch without provocation? In his affidavit, Johns claims that Baulch attacked him,

struck him repeatedly with an unidentified object, and forced Johns to shoot Baulch in self-

defense. In stark contrast, the Autopsy Report indicates that the fatal shots struck Baulch in

the back while Baulch was retreating. Faced with conflicting evidence, the district court

determined that there was a genuine issue of material fact concerning the lawfulness of the

force employed by Johns. We agree. Accordingly, under Johnston, Tamez and Hale, we lack

jurisdiction over Johns’ interlocutory appeal from the denial of his qualified immunity motion

for summary judgment.

B. The Autopsy Report was properly authenticated

It is undisputed that the Autopsy Report concerning Baulch’s death was provided to

the plaintiffs, in response to a deposition subpoena duces tecum, by Garland Chief of Police

Terry Hensley, the supervisor of officer Johns. Despite this, Johns’ attorney argues before us,

as he did before the district court, that the Autopsy Report was not properly authenticated by

the plaintiffs. While the district court did not explain why it rejected this argument by Johns’

attorney, we hold that the Autopsy Report is clearly admissible under Rule 901, Fed. R. Evid.:

Rule 901. Requirement of Authentication or Identification

(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.

4 (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be ...

* * *

(4) Distinctive Characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

We do not require district courts to find that authenticity is conclusively established

before allowing the admission of disputed evidence. United States v. Lance,

(5th Cir. 1988); United States v. Whittington,

(5th Cir.), cert. denied,

,

,

(1986). For example, in United States v. Lopez,

(5th Cir. 1989), we held that the district court did not abuse its discretion

when it admitted a document “which appear[ed] on its face and by its contents to be a record

of conviction of illegal entry into the United States.” The document at issue in Lopez was not

under seal, and it was not supported by testimony of the document’s custodian. However, the

document was supported by testimony that “provided circumstantial evidence to support the

conclusion that the document was an official record,” including the signature of a United

States Magistrate Judge and a clerk of that court. Together, “internal indicia of reliability

within the document” and testimony concerning the chain of custody of the document after

it was provided to a border patrol agent authenticated the document under Rule 901.

In this case, the Autopsy Report is clearly admissible under the same Rule 901 analysis.

As submitted to the district court, the Autopsy Report is an eight page, single-spaced

document containing an in-depth forensic analysis of Baulch’s organ weights, the gunshot

entrance and exit wounds, toxicology, etc. The Autopsy Report is signed by the Medical

Examiner, Dr. Charles Odem, and by the Acting Chief Medical Examiner, Dr. Jeffrey

5 Barnard. It is also supported by the affidavit of Heather Harvey,3/ which establishes that the

Autopsy Report was provided to plaintiffs’ counsel by Garland Police Chief Terry Hensley in

response to the plaintiffs’ subpoena duces tecum. While Harvey was not the record custodian

of the Autopsy Report, her testimony regarding its chain of custody after it was produced,

combined with the distinctive characteristics of the document itself, is certainly sufficient to

authenticate the Autopsy Report under Rule 901.

IV. Sanctions Under

Because of his frivolous arguments concerning the Autopsy Report -- which needlessly

wasted the time of the opposing counsel and of this Court -- we impose sanctions upon Johns’

attorney, John W. Bickel II.

We may impose sanctions upon “[a]ny attorney...who so multiplies the proceedings in

any case unreasonably and vexatiously.”

(West 1994).4/ Of course, § 1927

is to be strictly construed, and sanctions may not be imposed for mere negligence on the part

of counsel. Browning v. Kramer,

(5th Cir. 1991). However, § 1927 sanctions

are appropriate when an attorney has acted in bad faith, with improper motive, or with a

3 /Ms. Harvey is an employee of the plaintiffs’ attorney. Her affidavit states in paragraph 6:

Exhibit “3" to this affidavit is a true copy of the Autopsy Report documenting the autopsy performed on Kenneth Baulch on February 15, 1991 at the Southwestern Institute of Forensic Sciences. Garland Police Chief Terry Hensley, who is also represented in this action by Defendant’s counsel, produced this report to Plaintiffs on May 28, 1993 in response to Plaintiffs’ subpoena duces tecum, dated May 11, 1993. 4 /

provides:

Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

6 reckless disregard of the duty owed to the court. FDIC v. Conner,

(5th Cir.

1994); Travelers Ins. Co. v. St. Jude Hosp. of Kenner, La., 38 F. 3d. 1414, 1417 (5th Cir. 1994).

Counsel for Johns has displayed, at the very least, a reckless disregard of his duties as

an officer of this Court by arguing that the Autopsy Report was not properly authenticated.

Despite his argument, Johns’ counsel does not dispute these facts: the Autopsy Report was

prepared by the Southwestern Institute of Forensic Science, under the authority of the Dallas

County Medical Examiner; a copy of it was provided to Garland Police Chief Terry Hensley;

in response to a subpoena duces tecum, Chief Hensley -- who is also represented in this action

by counsel for Johns -- produced the Autopsy Report to the plaintiffs’ attorney. This put

Johns’ counsel in the position of arguing to us that a document he provided to opposing

counsel “may not” be a true and accurate copy of the Autopsy Report located in his client’s

files. 5/

Indeed, Johns’ counsel admitted to us at oral argument that, in truth, he had no reason

to believe that the Autopsy Report was not a true copy of the autopsy report prepared at

Southwestern Institute of Forensic Sciences. In fact, counsel admitted that he had never

compared the Autopsy Report either with the original report at the Southwestern Institute or

with the copy provided to his client, Chief of Police Terry Hensley.6/ Nor has Johns’ counsel

even attempted to explain why his expert witnesses may properly rely upon the Autopsy

Report, but the plaintiffs may not do so.7/

5 /Similarly, the argument in his post-argument brief -- that the original report on file with the Dallas County Medical Examiner’s Office reveals that the Autopsy Report is missing a page -- puts Johns’ counsel in the position of claiming that the autopsy Report was not admissible because his client, Chief of Police Terry Hensley, provided an incomplete copy of the report to the plaintiffs’ attorney. 6 /If he had done so, he would have discovered that the Autopsy Report was substantially correct. See fn. 5. 7 /In Defendant’s Response to Plaintiffs’ Third Set of Interrogatories and Request for Production of Documents, Johns’ counsel identifies two expert witnesses whose testimony would rely on the Autopsy Report: Dr. Martin Fackler and Donald Bassett.

7 Underlying the sanctions provided in

is the recognition that frivolous

appeals and arguments waste scarce judicial resources and increase legal fees charged to

parties. See Carmon v. Lubrizol Corp.,

(5th Cir. 1994); Plattenburg v. Allstate

Ins. Co.,

(5th Cir. 1990). Accordingly, we hold that § 1927 sanctions are

appropriate in this case against Johns’ attorney because of his arguments to this Court that

the Autopsy Report was not properly authenticated when, in truth, (i) the attorney had no

reason to doubt the document’s accuracy, (ii) the document was produced to opposing counsel

by a witness who was also represented by Johns’ attorney, and (iii) the attorney’s own expert

witnesses rely upon a copy of the same Autopsy Report.

We are mindful that § 1927 sanctions should not be assessed without fair notice and

without giving the attorney an opportunity to respond. See Alizadeh v. Safeway Stores, Inc.,

(5th Cir. 1990), citing Roadway Express, Inc. V. Piper,

,

,

(1980). However, in their briefing to this Court, plaintiffs

strenuously argued that the instant appeal was frivolous. Then, at oral argument, we

questioned Johns’ counsel at length about the basis for his arguments concerning the Autopsy

Report. Counsel for Johns responded to these issues at oral argument and later in as post-

argument briefs. We are convinced, therefore, that counsel has received notice that we were

considering sanctions against him and has enjoyed sufficient opportunity to respond. See

Coghlan v. Starkey,

(5th Cir. 1988); Farguson v. Mbank Houston, N.A.,

(5th Cir. 1986) (per curiam).

We conclude that, pursuant to

, appellant’s attorney should be assessed

the attorney’s fees of appellees’ counsel and all costs incurred in this appeal. Counsel for

appellees has filed an affidavit in accordance with Local Rule 47.8, setting forth the time

reasonably spent on this appeal and the reasonable hourly rate charged in similar cases in the

8 Dallas area.8/ See Atwood v. Union Carbide Corp.,

(5th Cir. 1988) (per

curiam). Accordingly, we award reasonable attorneys fees of $20,643.75 and costs to the

appellees’ counsel.

V. Conclusion

This appeal is DISMISSED. SANCTIONS are imposed under

, and

reasonable attorneys fees of $13,831.31 and costs are taxed against counsel for appellant.

These sanctions are to be paid to appellees’ counsel within thirty (30) days from the date the

mandate issues.

8 /This affidavit asserts that appellees’ counsel spent 91.75 hours on this interlocutory appeal and that $225 to $300 is a reasonable hourly rate for attorneys of comparable experience. Appellant’s response does not question the hours or the rate claimed. Given this uncontested assertion, we approve of $13,831.31 as a reasonable fee in this case, but, as the specifics were not subject to adversarial testing, we do not opine on whether the rate claimed would be reasonable in other cases in the Dallas area.

9