Fifth Circuit Rejects Summary Judgment for Officer Based on Qualified Immunity in 1983 Claim

Per Brown v. Lippard, --- F.3d ----, 2006 WL 3598524, (5th Cir. Dec. 12, 2006):

Lippard [the officer] asserts that there was no evidence properly before the district court that his actions were in bad faith, and therefore that Brown did not overcome the immunity shield. The evidence that Lippard was acting in bad faith came from both a fellow officer and an inmate who described Brown's behavior as cooperative and unthreatening. But Lippard complains that such evidence was not in the record on summary judgment, but from the prior action dismissed for failure to exhaust remedies, and the judge mistakenly took judicial notice of it.

Lippard's argument is off point. The district judge did not have to credit the testimony of the officer and inmate "for the truth asserted." Taylor v. Charter Med. Corp., 162 F.3d 827, 830 (5th Cir.1998). The judge only had to notice that such testimony existed, because the testimony's very existence raises an issue of fact sufficient to overcome summary judgment. Especially here, where Lippard does not so much as allege that his actions were in response to Brown's misbehavior. Because the testimony's existence was "not subject to reasonable dispute" and "capable of accurate and ready determination," Fed. R. Evid. 201(b), it was not improper to take judicial notice of it.