United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 14, 2003
Charles R. Fulbruge III
Clerk
No. 03-40548
Summary Calendar
JORGE ALVAREZ
Plaintiff - Appellant
v.
RON ENGLAND, Camp County Deputy Sheriff
Defendant - Appellee
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:02-CV-184
--------------------
Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.
PER CURIAM:*
Jorge Alvarez appeals from the district court’s summary-
judgment dismissal of his 42 U.S.C. § 1983 action against Ronald
England, a former deputy sheriff of Camp County, Texas. Alvarez
asserts that England violated the Fourth Amendment by applying
excessive, objectively unreasonable force against him, thereby
causing him injury. Alvarez further argues that England is not
protected by qualified immunity.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-40548
-2-
Alvarez was a passenger in a vehicle that was frequently
driven by Valentin Aguirre, an individual with an extensive
criminal history which included assault and weapons violations.
The police believed that Aguirre might be in possession of
firearms and illegal narcotics. Alvarez did not comply with the
police officers’ orders to remain in the vehicle, and once he was
out of the car, to get on the ground. England could recognize
Aguirre and knew that Alvarez was not Aguirre. However, because
the windows of the vehicle were tinted, the police could not see
if Aguirre was hidden in the car or if the occupants of the car
possessed weapons. Under those circumstances, it was objectively
reasonable for a police officer to believe that Alvarez posed a
serious danger to the officers and the public when he appeared to
head back into the car and it was objectively reasonable for a
police officer to apply non-deadly force to gain control over the
situation. This court is not to employ “the 20/20 vision of
hindsight,” but must consider “the fact that police officers are
often forced to make split second judgments--in circumstances
that are tense, uncertain, and rapidly evolving--about the amount
of force that is necessary in a particular situation.” See
Graham v. Connor, 490 U.S. 386, 396-97 (1989). Because no
reasonable fact-finder could conclude that England’s use of force
was unreasonable and excessive, this court need not decide
whether England is entitled to qualified immunity.
No. 03-40548
-3-
The district court did not err in awarding summary judgment
to England.
AFFIRMED.