United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
April 1, 2021
No. 20-50277 Lyle W. Cayce
Clerk
Albina Roque, individually, as heir at law to the Estate of Jason Roque,
and on behalf of all wrongful death beneficiaries; Vincente Roque,
individually, as heir at law to the Estate of Jason Roque, and on behalf of all
wrongful death beneficiaries,
Plaintiffs—Appellees,
versus
James Harvel, in his individual capacity,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:17-CV-932
Before King, Elrod, and Willett, Circuit Judges.
Don R. Willett, Circuit Judge:
This qualified-immunity case involves the police shooting and killing
of Jason Roque, a suicidal man experiencing a mental-health crisis. Roque’s
parents sued James Harvel, the officer who killed their son, alleging a
violation of their son’s Fourth Amendment right against the use of excessive
force.
No. 20-50277
The Fourth Amendment turns on reasonableness. And “[t]he
calculus of reasonableness must embody allowance for 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.”1 This allowance is particularly
understandable when police officers encounter suicidal suspects. At some
point, however, and even in the most difficult circumstances, the
reasonableness rope ends. Here, the district court decided a jury should
determine whether it ended after Officer Harvel’s first shot. We agree and
therefore affirm the district court’s denial of summary judgment.
I
The Austin Police Department received two related 911 calls on the
morning of May 2, 2017. Jason Roque made the first call to report a shirtless,
Hispanic man “just going crazy” with a black pistol—not pointing it at
anybody but “all up in the air and whatnot.” Jason was speaking about
himself but didn’t disclose that fact to the 911 operator. Jason’s mother,
Albina, then called 911. While crying and pleading with Jason, she told the
operator that her son wanted to kill himself. Both Jason and Albina called to
report the incident from their home address.
During the 911 calls, Officer Harvel was on patrol in northeast Austin,
where the Roques live. Harvel learned of the 911 calls through his radio and
the dispatch report. Dispatch first described the calls as “Gun Urgent” but
changed the reported problem to “Attempted Suicide.” Dispatch also noted
that Jason’s only recent involvement with law enforcement was an allegation
of criminal mischief the year before.
1
Graham v. Connor, 490 U.S. 386, 396–97 (1989).
2
No. 20-50277
Multiple officers, including Harvel, responded to the situation. Harvel
and the other officers positioned themselves at the end of Jason’s street about
75 yards from Jason’s house. Jason was pacing the sidewalk in front of his
home with a black gun in his waistband. He was repeatedly saying, “Shoot
me!” Albina was standing on the porch imploring Jason not to kill himself.
The officers could hear—but not see—Albina from where they were
standing. One officer yelled, “Put your hands up!” Jason put his arms out to
the side and continued walking on the sidewalk. He yelled at the officers to
shoot and kill him.
Jason then pulled out the gun, which was later determined to be a BB
gun. Jason pointed the gun at his head then turned away from the officers and
said, “I’ll f---ing kill myself!” An officer then yelled (for the first time): “Put
the gun down!”
The parties dispute what happened next. Video evidence (taken from
two different home-surveillance systems)2 shows that, after the officer’s
order to put his gun down, Jason turned around to face the officers with the
gun pointed in the air. All of the officers claim, however, that they didn’t
know where the gun was and didn’t see Jason point it in their general
direction. Nonetheless, in the split second between the officer’s command to
put the gun down and Jason’s turning his body toward the officers with his
arm and the gun in the air, Harvel shot Jason with a semi-automatic rifle. The
video shows Jason immediately double over, drop the gun, and stumble from
the sidewalk toward the street (away from his mother and the officers). The
video also shows the black gun hitting the white sidewalk in broad daylight.
2
The first video is from the position of the officers, although about one house
closer to where Jason was located. https://www.ca5.uscourts.gov/opinions/pub/20/20-
50277-1.mp4. The second video is from the home of the Roques’ neighbor.
https://www.ca5.uscourts.gov/opinions/pub/20/20-50277-2.mp4.
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No. 20-50277
Harvel claims that he didn’t see the gun fall and considered Jason to be a
continuing threat to his mother.
About two seconds after the first shot, while Jason was stumbling into
the street, Harvel fired another shot that missed Jason. Jason continued
floundering into the street, and two seconds later, Harvel took a final and fatal
shot. The police officers then approached Jason’s body and unsuccessfully
attempted CPR. Paramedics took Jason to the emergency room; he died soon
after. Harvel maintains that he took each shot because he thought Jason was
a threat to his mother’s life and safety.
Jason’s parents, Albina and Vincente Roque, sued Officer Harvel as
well as the City of Austin under 42 U.S.C. § 1983 for violations of Jason’s
Fourth Amendment rights. Both Harvel and the City moved for summary
judgment. The City argued that it could not be liable under § 1983 because
the Roques failed to show any official policy or custom that caused the alleged
constitutional violation.3 The district court agreed with the City and granted
its motion. Harvel raised the defense of qualified immunity. The district
court granted Harvel’s motion as to the first shot but denied the motion as to
the second and third shots. Harvel timely filed this interlocutory appeal.
II
Qualified immunity “attempts to balance two competing societal
interests: ‘the need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from harassment,
3
See Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 694 (1978) (“We
conclude, therefore, that a local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents. Instead, it is when execution of a government’s
policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy, inflicts the injury that the government as an entity is
responsible under § 1983.”).
4
No. 20-50277
distraction, and liability when they perform their duties reasonably.’”4 The
defense of qualified immunity therefore protects public officials “sued in
their individual capacities ‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’”5 A court’s decision on
qualified immunity involves two questions: (1) whether the defendant
violated the plaintiff’s constitutional or statutory rights; and (2) whether
those rights were clearly established at the time of the violation “such that
the officer was on notice of the unlawfulness of his or her conduct.”6
The unique nature and purpose of qualified immunity affects both our
jurisdiction and the lens with which we review a district court’s denial of the
defense. We first discuss the changes to our jurisdiction and then the scope
of our review.
When a district court denies summary judgment, that order “is
generally not a final decision within the meaning of [28 U.S.C] § 1291 and is
thus generally not immediately appealable.”7 But an exception, the collateral-
order doctrine, applies when the summary-judgment motion is based on
qualified immunity.8 That’s because immunity is collateral to the merits.9
And an immunity determination cannot be “effectively reviewed on appeal
4
Joseph v. Bartlett, 981 F.3d 319, 328 (2020) (quoting Pearson v. Callahan, 555 U.S.
223, 231 (2009)).
5
Joseph, 981 F.3d at 328 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
6
Cole v. Carson, 935 F.3d 444, 451 (5th Cir. 2019), as revised (Aug. 21, 2019), cert.
denied sub nom. Hunter v. Cole, 141 S. Ct. 111 (2020).
7
Plumhoff v. Rickard, 572 U.S. 765, 771 (2014).
8
Id. at 771–72.
9
Id. at 772.
5
No. 20-50277
from a final judgment because by that time the immunity from standing trial
will have been irretrievably lost.”10 Accordingly, a district court’s immunity
decision is akin to a final decision, and a defendant who loses on the qualified-
immunity defense can bring an interlocutory appeal.11
Qualified immunity also affects the scope of our review. The
summary-judgment question is whether the movant has shown “that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”12 When the district court answers this
question, it inherently makes two separate findings regarding whether there
are genuine fact disputes and whether those fact disputes are material to the
outcome of the case.13 Typically, we review the district court’s analysis de
novo, asking the same questions the district court does regarding genuineness
and materiality.14 But on interlocutory appeal following the denial of qualified
immunity, the scope of our review is limited to “whether the factual disputes
that the district court identified are material to the application of qualified
immunity.”15 Our review therefore involves only “whether a given course of
conduct would be objectively unreasonable in light of clearly established
law.”16 We do not review the district court’s determination that there are
genuine fact disputes.17
10
Id.
11
See generally Mitchell v. Forsyth, 472 U.S. 511, 536 (1985).
12
Fed. R. Civ. P. 56(a).
13
Colston v. Barnhart, 146 F.3d 282, 284 (5th Cir. 1998).
14
Id.; see also Samples v. Vadzemnieks, 900 F.3d 655, 659–60 (5th Cir. 2018).
15
Samples, 900 F.3d at 660.
16
Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc).
17
See Melton v Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc) (“[W]e lack
jurisdiction to review the genuineness of a fact issue but have jurisdiction insofar as the
6
No. 20-50277
Plaintiffs argue that we lack jurisdiction over this entire appeal
because the district court found that genuine fact disputes precluded
summary judgment. As explained above, however, “[w]e do have
jurisdiction, but only to the extent that the appeal concerns the purely legal
question whether the defendants are entitled to qualified immunity on the
facts that the district court found sufficiently supported in the summary
judgment record.”18
III
Although qualified immunity raises two distinct questions (whether
the conduct was unconstitutional and whether the unconstitutionality was
clearly established), we have discretion “to decline entirely to address the”
first question.19 We can “skip straight to the second question concerning
clearly established law.”20 But we have repeatedly emphasized that there is
value in addressing both questions “to develop robust case law on the scope
of constitutional rights.”21 In that vein, we first address Plaintiffs’ Fourth
interlocutory appeal challenges the materiality of [the] factual issues.”) (quoting Allen v.
Cisneros, 815 F.3d 239, 244 (5th Cir. 2016)).
18
Kinney, 367 F.3d at 347 (5th Cir. 2004) (en banc).
19
Morgan v. Swanson, 659 F.3d 359, 384 (5th Cir. 2011).
20
Id.
21
Joseph v. Bartlett, 981 F.3d 319, 331 n.40 (5th Cir. 2020) (citing Morgan, 659 F.3d
at 395).
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No. 20-50277
Amendment claim and then discuss the clearly established law at the time of
the shooting.
A
The Fourth Amendment’s right to be free from unreasonable seizures
governs excessive-force claims.22 To prove an excessive-force claim, “a
plaintiff must show (1) an injury, (2) which resulted directly and only from
the use of force that was clearly excessive, and (3) the excessiveness of which
was clearly unreasonable.”23
Excessive-force claims are “necessarily fact-intensive,” so we must
“examine the totality of the circumstances to determine whether an officer’s
actions were objectively unreasonable.”24 “The intent or motivation of the
officer is irrelevant; the question is whether a reasonable officer in the same
circumstances would have concluded that a threat existed justifying the
particular use of force.”25 We only consider the facts “knowable to the
defendant officers” at the time the officers used force, and we must be
“careful to avoid ‘second-guessing a police officer’s assessment, made on the
scene, of the danger presented by a particular situation.’”26
22
Garza v. Briones, 943 F.3d 740, 744–45 (5th Cir. 2019); Graham v. Connor, 490
U.S. 386, 395 (1989) (“[A]ll claims that law enforcement officers have used excessive
force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a
free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’
standard, rather than under a ‘substantive due process’ approach.”).
23
Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) (quoting Ontiveros v. City of
Rosenberg, 564 F.3d 379, 382 (5th Cir.2009)).
24
Garza, 943 F.3d at 745 (cleaned up).
25
Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (citing Graham, 490 U.S. at
396–97); see also Kingsley v. Hendrickson, 576 U.S. 389, 391–92 (2015).
26
Garza, 943 F.3d at 745 (first quoting White v. Pauly, 137 S. Ct. 548, 550 (2017)
(per curiam) then quoting Ryburn v. Huff, 565 U.S. 469, 477 (2012)).
8
No. 20-50277
When an officer uses deadly force, that force is considered excessive
and unreasonable “unless the officer has probable cause to believe that the
suspect poses a threat of serious physical harm, either to the officer or to
others.”27 Further, “an exercise of force that is reasonable at one moment
can become unreasonable in the next if the justification for the use of force
has ceased.”28
The parties do not dispute the district court’s conclusion that, even
though all of the officers claim they didn’t see Jason point the gun in their
direction, Harvel was justified in taking the first shot. The video evidence
(from all angles) shows that right before the first shot, and after the officers
shouted at Jason to put down his gun, Jason pointed the gun in the officers’
general direction. It’s also undisputed that Jason Roque suffered an injury
(element one of his excessive-force claim).
At issue, then, is whether Officer Harvel’s second and third shots
were excessive (element two) and objectively unreasonable (element three).
These questions are “often intertwined.”29 Because Officer Harvel used
deadly force, the answer to these intertwined questions depends on whether
Jason posed a threat of serious physical harm after the first shot struck him.
Two factual disputes concerning the placement of the gun and Jason’s
movements prevent us from answering these questions.
First, the gun. Harvel asserts that, after the first shot, he perceived
Jason to be a continuing threat to his mother because he didn’t see Jason drop
his gun. Plaintiffs argue, with video and expert evidence, that a reasonable
27
Romero v. City of Grapevine, 888 F.3d 170, 176 (5th Cir. 2018) (quoting Tennessee
v. Garner, 471 U.S. 1, 11 (1985)).
28
Lytle v. Bexar Cnty., 560 F.3d 404, 413 (5th Cir. 2009).
29
Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012).
9
No. 20-50277
officer should have seen Jason drop his black gun on the white sidewalk in
broad daylight. Second, Jason’s movements. Harvel claims that Jason was
“still moving and ambulatory” after the first shot. Plaintiffs counter that the
video shows Jason double over and stumble into the street. Even though
Jason was still moving, Plaintiffs assert that these movements show a
wounded man moving away from everyone at the scene.
Both fact disputes go to whether a reasonable officer would have
known that Jason was incapacitated after the first shot. If Jason was
incapacitated, he no longer posed a threat. And if he no longer posed a threat,
Harvel’s second and third shots were excessive and unreasonable. Whether
Jason was incapacitated is therefore not only disputed but material to
Plaintiffs’ Fourth Amendment claim.
Harvel’s only arguments to the contrary center around whether
Plaintiffs’ evidence is sufficient to dispute his subjective version of events.
These arguments fail. On interlocutory appeal, “we cannot challenge the
district court’s assessments regarding the sufficiency of the evidence—that
is, the question whether there is enough evidence in the record for a jury to
conclude that certain facts are true.”30 So we accept the district court’s
evidence-sufficiency (or genuineness) determination. And we agree with its
determination that material fact disputes preclude summary judgment on the
Fourth Amendment question.
30
Cole v. Carson, 935 F.3d 444, 452 (5th Cir. 2019), as revised (Aug. 21, 2019), cert.
denied sub nom. Hunter v. Cole, 141 S. Ct. 111 (2020) (quoting Trent v. Wade, 776 F.3d 368,
376 (5th Cir. 2015)); accord Colston v. Barnhart, 146 F.3d 282, 284 (5th Cir. 1998)
(“Johnson makes clear that an appellate court may not review a district court’s
determination that the issues of fact in question are genuine.”).
10
No. 20-50277
B
Even if genuine disputes of material fact exist concerning the Fourth
Amendment violation, Harvel is entitled to qualified immunity unless his
“actions were objectively unreasonable in light of clearly established law at
the time of the” shooting.31 The critical question when ascertaining the
clearly established law is “whether the state of the law at the time of an
incident provided fair warning to the defendants that their alleged conduct
was unconstitutional.”32 Put differently, “[a] clearly established right is one
that is ‘sufficiently clear that every reasonable official would have understood
that what he is doing violates that right.’”33
A plaintiff must “identify a case—usually, a body of relevant case
law—in which an officer acting under similar circumstances was held to have
violated the Constitution.”34 While a plaintiff need not find a case “directly
on point, . . . existing precedent must have placed the statutory or
constitutional question beyond debate.”35 The Supreme Court has also
explained that the clearly established law “should not be defined ‘at a high
level of generality.’”36 It “must be ‘particularized’ to the facts of the case.”37
But, “in an obvious case,” general standards “can ‘clearly establish’ the
31
Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012) (quoting Brumfield v.
Hollins, 551 F.3d 322, 326 (5th Cir. 2008)).
32
Tolan v. Cotton, 572 U.S. 650, 656 (2014) (cleaned up).
33
Mullenix v. Luna, 577 U.S. 7, 11–12 (2015) (quoting Reichle v. Howards, 566 U.S.
658, 663 (2012)).
34
Joseph v. Bartlett, 981 F.3d 319, 330 (5th Cir. 2020) (cleaned up).
35
Mullenix, 577 U.S. at 12 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).
36
White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting al–Kidd, 563 U.S. at 742).
37
White, 137 S. Ct. at 552 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
11
No. 20-50277
answer, even without a body of relevant case law.”38 As the Supreme Court
has summarized, qualified “immunity protects ‘all but the plainly
incompetent or those who knowingly violate the law.’”39
Finally, “drawing inferences in favor of the nonmovant” is especially
important when determining whether there is clearly established law.40
That’s because the Supreme Court has “instructed that courts should define
the ‘clearly established’ right at issue on the basis of the ‘specific context of
the case.’”41 So “courts must take care not to define a case’s ‘context’ in a
manner that imports genuinely disputed factual propositions.”42 In other
words, a court assessing the clearly established law cannot “resolve[]
disputed issues in favor of the moving party.”43 And it must “properly
credit[]” Plaintiffs’ evidence.44
The district court implied that this was an obvious case under
Tennessee v. Garner. In Garner, the Supreme Court held that “[a] police
officer may not seize an unarmed, nondangerous suspect by shooting him
dead.”45 Although the officer in Garner shot and killed a fleeing burglary
38
Brosseau v. Haugen, 543 U.S. 194, 199 (2004); see also Taylor v. Riojas, 141 S. Ct.
52, 53–54 (2020).
39
White, 137 S. Ct. at 551 (quoting Mullenix, 577 U.S. at 12).
40
Tolan v. Cotton, 572 U.S. 650, 657 (2014).
41
Id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).
42
Id.
43
Id.; see also Good v. Curtis, 601 F.3d 393, 398 (5th Cir. 2010) (“[A] defendant
challenging the denial of a motion for summary judgment on the basis of qualified immunity
must be prepared to concede the best view of the facts to the plaintiff.”).
44
Tolan, 572 U.S. at 660.
45
471 U.S. 1, 11–12 (1985) (holding unconstitutional a Tennessee statute that
authorized the use of deadly force against fleeing felony suspects).
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No. 20-50277
suspect who was never armed,46 we have applied Garner to situations where
a suspect has a weapon but is incapacitated or otherwise incapable of using it
(functionally unarmed).47
The district court stated that, according to Plaintiffs’ narrative, which
is supported by video evidence, Jason never pointed the gun at anyone but
himself. Before the first shot, Jason simply waved the gun in an arc as he
turned around to look in the officers’ direction right after they yelled at him
to drop the gun. As Jason was turning around, Harvel took the first shot. The
shot hit Jason, and he dropped the gun and stumbled into the street away
from the officers and his mother. Thus, the district court concluded that
under these facts, it was obviously unconstitutional to continue shooting at
an unarmed suspect who was limping away from everyone present.
Harvel argues that this is not an obvious case for the same reasons he
argues that there are no disputed facts: “All of the officers, including Officer
Harvel, believed that after the first shot, Roque was still armed. Roque was
not compliant with police commands, was not running away or surrendering
but was armed, mobile and capable of firing his weapon at his mother.”
Plaintiffs’ evidence contradicts all of these points, and the district court
already decided these facts were genuinely disputed. As stated above, we lack
jurisdiction to resolve the genuineness of factual disputes.48 Further, we
prioritize video evidence.49 If the jury accepts Plaintiffs’ narrative, which is
46
Id. at 3.
47
See, e.g., Mason v. Lafayette City-Par. Consol. Gov’t, 806 F.3d 268, 277 (5th Cir.
2015).
48
Joseph v. Bartlett, 981 F.3d 319, 331 (2020); Cole v. Carson, 935 F.3d 444, 452
(5th Cir. 2019), as revised (Aug. 21, 2019), cert. denied sub nom. Hunter v. Cole, 141 S. Ct. 111
(2020).
49
Joseph, 981 F.3d at 325.
13
No. 20-50277
supported by video evidence, then Harvel shot a suicidal, unarmed, wounded
man who was a threat only to himself. That would make this case an
“obvious” one.50
But we need not rely on obviousness here, as multiple cases show that
by May 2, 2017, the day that Harvel shot Jason, it was clearly established that
after incapacitating a suspect who posed a threat, an officer cannot continue
using deadly force.51
The closest case is Mason v. Lafayette City-Parish Consolidated
Government.52 In Mason, officers responded to a suspected armed robbery at
an apartment.53 The apartment belonged to the suspect’s girlfriend, and both
the suspect and girlfriend were inside.54 When the police arrived, the couple
opened the door and found the officers with their guns drawn.55 The
girlfriend told the officers that Mason, the suspect, wasn’t doing anything
wrong.56 The officers ordered Mason and his girlfriend to put their hands up
and get on the ground (although the exact commands were disputed).57 One
50
See Cole, 935 F.3d at 453–54 (collecting cases).
51
See Lytle v. Bexar Cnty., 560 F.3d 404, 413 (5th Cir. 2009) (“A passing risk to a
police officer is not an ongoing license to kill an otherwise unthreatening suspect”);
Plumhoff v. Rickard, 572 U.S. 765, 777 (2014) (“This would be a different case if petitioners
had initiated a second round of shots after an initial round had clearly incapacitated Rickard
and had ended any threat of continued flight, or if Rickard had clearly given himself up.”).
52
806 F.3d 268 (5th Cir. 2015).
53
Id. at 272.
54
Id.
55
Id. at 273.
56
Id.
57
Id.
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No. 20-50277
of the officers unleashed his dog after he saw, and yelled to the other officers,
that Mason had a gun.58
The officer claimed that when the dog attacked Mason, Mason
reached for his gun.59 In response, the officer started shooting.60 The officer’s
initial round of shots, five in total, all hit Mason in different parts of his
body.61 After the fifth shot, Mason was face down on the ground, and the
officer temporarily stopped firing.62 The officer claimed that Mason made a
movement that indicated he was reaching for his gun, so the officer fired two
more shots into Mason’s back.63 Mason died at the scene.64
Mason’s girlfriend told a different story. She said that Mason never
did anything to justify the dog attack, never touched his gun, and never
attempted to resist the officers.65 She also claimed that after the first five
shots, Mason only picked up his head and put it back down—he never moved
in a threatening manner.66 An expert also testified that after the first five
shots, Mason could have moved, but not effectively, and moving his arm
toward the gun would have been very painful.67
58
Id.
59
Id.
60
Id.
61
Id.
62
Id.
63
Id. at 274.
64
Id.
65
Id. at 273.
66
Id.
67
Id.
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No. 20-50277
We held that the officer was entitled to qualified immunity for the first
five shots, but given the competing narratives, there were material fact
disputes as to the final two shots.68 Specifically, whether Mason was
incapacitated after the first five shots was disputed and material to the
outcome of the case.69 We further stated that, under Garner, an officer cannot
use deadly force when a suspect poses no immediate threat, and it was
“obvious” that an officer could not shoot an incapacitated suspect.70 We
therefore concluded that whether Mason was incapacitated was material to
both the constitutional violation and the clearly established law.71
Harvel attempts to distinguish Mason by recycling the same argument
that there is no fact dispute about whether Harvel believed Roque was a
continuing threat. Harvel also, once again, claims that the evidence is
undisputed that Jason was not incapacitated after the first shot because “[h]e
was not motionless.” As we previously stated, these arguments about the
genuineness of the fact disputes are inappropriate in this interlocutory
appeal.
There are certainly differences between Mason and this case. Mason
was attacked by a dog and was lying face down when the officer fired the last
two shots.72 But Mason still had his gun.73 And both the plaintiffs and
defendants stated that Mason continued to make some movements.74 We
68
Id. at 278.
69
Id.
70
Id. at 277–78.
71
Id.
72
Id. at 277.
73
Id.
74
Id.
16
No. 20-50277
determined it was for the jury to decide whether those movements made
Mason a threat that justified the officer’s use of deadly force. So too here.
Jason was not lying down after the first shot, but, as the video indisputably
shows, he was unarmed and stumbling into the street, moving further away
from anyone else. Whether a reasonable officer would have thought Jason
was incapacitated or a threat to his mother is a question for the jury to decide.
What’s more, we held in Mason that if the jury accepted the plaintiff’s set of
facts, the case was “obvious” under Garner. If Mason was obvious in 2015,
then the similar fact pattern in this case, which occurred two years later, is at
least clearly established.
Our unpublished decision in Graves v. Zachary in 2008 is also
instructive—not for its precedential value but for discerning the clearly
established law we cited in 2008.75 In that case, Graves arrived at his ex-
girlfriend’s apartment, asking about her new boyfriend.76 Graves smelled of
alcohol, had a gun and a box of bullets, threatened to shoot himself, and then
threatened to shoot his ex-girlfriend, Besek, in the leg.77 Besek locked herself
in a bathroom and called 911.78 Officers arrived at the scene and told Graves
to show his hands, which Graves did while pressing the gun against his
temple.79 The officers claimed that they told Graves to drop his weapon, and
75
See Joseph v. Bartlett, 981 F.3d 319, 341 n.105 (5th Cir. 2020) (noting that while
unpublished cases “cannot clearly establish the law,” they “can illustrate or ‘guide us to
such authority,’ by ‘restating what was clearly established in precedents they cite or
elsewhere.’”) (quoting Marks v. Hudson, 933 F.3d 481, 486 (5th Cir. 2019)).
76
Graves v. Zachary, 277 F. App’x 344, 345 (5th Cir. 2008).
77
Id.
78
Id.
79
Id.
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No. 20-50277
Graves didn’t comply.80 Graves said he never heard the order.81 Allegedly
fearing for his life and Besek’s, one officer shot Graves; the shot hit Graves
in the groin.82 The parties disputed the impact of the first shot. The officers
stated that Graves didn’t slump down or drop his weapon. But Graves
claimed that, although he was still holding his gun, he “was downed or
incapacitated.”83 “After a short delay,” the officer fired again, this time
hitting Graves in the chest.84
We held that there was a factual dispute about whether Graves was
incapacitated after the first shot and whether the shooting officer told Graves
to put the gun down before shooting him the first time.85 Those disputes were
material, and, accepting Graves’s account, “the violation of [Graves’s]
constitutional rights would have been obvious even without a body of relevant
case law.”86 We further explained that a reasonable officer wouldn’t need a
specific case “to know that he cannot shoot a compliant suspect and that he
cannot fire again at someone who is objectively ‘downed or
incapacitated.’”87 Since we determined in Graves that shooting an
incapacitated suspect, even one still holding a weapon, was obviously
unconstitutional in 2008, the similar officer conduct here was at a minimum
clearly established in 2017.
80
Id. at 345–46.
81
Id. at 346.
82
Id.
83
Id.
84
Id.
85
Id. at 348–49.
86
Id. at 349 (cleaned up) (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)).
87
Id.
18
No. 20-50277
Harvel says the instructive case here is not Mason or Graves but Garza
v. Briones.88 In Garza, officers responded to a 911 call about a man (Garza),
who was sitting at a bar holding a pistol and what appeared to be a bottle of
wine.89 One officer drew his weapon and repeatedly ordered Garza to drop
his gun.90 Garza ignored the commands and instead “continued to move the
firearm around in different directions while making facial gestures” at the
officer.91 The officer radioed for backup and waited.92 When additional
officers arrived, they continued to give Garza commands, which Garza
ignored, and they formed a semi-circle around him with their guns drawn.93
At one point, a witness told one of the backup officers that Garza’s gun was
not real and was actually just a BB gun. The officer didn’t relay this
information to the other officers because he couldn’t verify it.94 A minute
later, Garza raised his gun and pointed it at the officer who first arrived on
the scene.95 The officer yelled at Garza to stop; Garza again ignored the
command.96 So the officer started shooting.97 The other officers heard the
shots and assumed that Garza was the one shooting so they fired their
88
943 F.3d 740 (5th Cir. 2019).
89
Id. at 743.
90
Id.
91
Id.
92
Id.
93
Id.
94
Id.
95
Id. at 744.
96
Id.
97
Id.
19
No. 20-50277
weapons at Garza until he fell to the ground.98 In total, the officers fired 61
shots in an 8-second timespan, killing Garza in the process.99
Harvel claims that Garza controls here because Jason, like Garza, had
a BB gun that the officers thought was real. And Jason, like Garza, ignored
orders to drop his weapon and displayed erratic behavior, “indicating that he
may [have] pose[d] an imminent threat to anyone on the scene.”
These arguments are unpersuasive. The first, concerning the BB gun,
played no role in the district court’s decision. The court noted that the
officers didn’t know the gun was fake until after their encounter with Jason.
As to the second point, the record in Garza showed that the officers gave
numerous warnings to Garza before shooting. Here, the officers told Jason to
drop his weapon once and started shooting barely a second later. No officer,
including Harvel, repeated the command, even though Harvel paused
between the first and second shots while Jason dropped his gun and limped
away. Further distinguishing this case from Garza is the video evidence. In
Garza, we noted that the video evidence supported the officers’ story and
contradicted the plaintiff’s version of events.100 The video here does the
exact opposite.
To sum up, Garner, Mason, and Graves are the most pertinent cases.
And those cases show that by 2017, it was clearly established—and possibly
even obvious—that an officer violates the Fourth Amendment if he shoots
an unarmed, incapacitated suspect who is moving away from everyone
present at the scene.
98
Id.
99
Id.
100
Id. at 747.
20
No. 20-50277
IV
This is a tragic case that raises difficult questions about how police
officers should respond to suicidal suspects. Those questions cannot be
answered here without the resolution of several factual disputes. And if
resolved in Plaintiffs’ favor, Harvel is not entitled to qualified immunity. We
thus AFFIRM the district court’s denial of summary judgment.
21