Dawes v. City of Dallas

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

§

MARY DAWES, individually and as §

the Administrator of the Estate of §

Decedent Genevive A. Dawes; §

ALFREDO SAUCEDO; and §

VIRGILIO ROSALES, § Civil Action No. 3:17-CV-1424-X

§

Plaintiffs, §

§

v. §

§

CITY OF DALLAS, CHRISTOPHER

HESS, and JASON KIMPEL,

Defendants.

MEMORANDUM OPINION AND ORDER

This case is about the 2017 shooting of Genevive Dawes by Dallas Police

Department officers. Before the Court is the United States Magistrate Judge’s

findings, conclusions, and recommendation [Doc. No. 136] on defendant-Officer

Christopher Hess’s and defendant-Officer Jason Kimpel’s motion for summary

judgment asserting qualified immunity [Doc. No. 104]. For the reasons explained

below, the Court ACCEPTS IN PART and REJECTS IN PART the Magistrate

Judge’s report and GRANTS the defendants’ motion for summary judgment.

I. Background

Around 5:00 am on January 18, 2017, Genevive Dawes and Virgilio Rosales

were sitting in the front seats of a black Dodge Journey SUV that Dawes had parked

in the back corner of an apartment complex’s parking lot.1 To the right side of

Dawes’s car was another vehicle.2 There was a white trellis fence to the left and in

front of Dawes’s car.3 Behind Dawes’s car was a lane for accessing the parking spots

and on the other side of that was a row of parked cars.4

Defendants Christopher Hess and Jason Kimpel and four other Dallas Police

Department officers were dispatched to the location to investigate a report of a

suspicious vehicle in the corner of the lot with a man and woman inside.5 At some

point during the incident, the officers learned that Dawes’s car had been reported

stolen.6 Shortly after the officers arrived, they began shining their flashlights into

the car’s windows and yelling commands such as “put your hands out the window.”7

The area was dark and poorly lit, and Dawes’s car windows were tinted and steamed

up, making it difficult to see inside.8

Dawes’s car was not moving. An officer remarked that the officers had been

informed that there “was a male and female inside.”9 Officer Hess retrieved the

closest squad car and pulled it up diagonally, facing the right rear side of Dawes’s

1 Doc. No. 106-1 at 4; Doc. No. 126 at 6–7.

2 Doc. No. 106-1 at 4; Doc. No. 126 at 7.

3 Doc. No. 106-1 at 4; Doc. No. 126 at 7; Evans Bodycam at 3:56.

4 Evans Bodycam at 0:53–1:05.

5 Doc. No. 106-1 at 4.

6 Doc. No. 106-1 at 4; Doc. No. 106-1 at 9; Doc. No. 126 at 40.

7 Evans Bodycam at 1:00–1:03, 1:32–2:00.

8 Doc. No. 106-1 at 9; see also Doc. No. 126 at 7.

9 Evans Bodycam at 1:48–52; Doc. No. 126 at 38; Kimpel Bodycam at 1:20–1:25.

vehicle.10 Then, Officer Hess sounded the squad car’s air horn, activated a short siren

yelp, and turned on the car’s spotlight, but did not turn on flashing emergency

lights.11 Officer Hess exited the squad car and walked to be near the rear left corner

of Dawes’s car, and stood beside two other officers for approximately 20 seconds.12

As officers stood nearby, Officer Hopkins slowly approached Dawes’s car and

pulled on the right rear door handle and the trunk handle, which appeared to be

locked, and an officer announced that two people were asleep inside the car.13 Officer

Hess heard the statement.14 A few seconds later, two officers yelled at Dawes and

Rosales to show their hands.15 After a short time, officers twice ordered them, again,

to show their hands while another officer yelled, “Dallas police.”16 Another officer

stated that someone was moving around inside the vehicle.17 Officers again twice

ordered Dawes and Rosales to show their hands, but they did not do so, although at

least one of them started moving around inside the car.18

10 Doc. No. 106-1 at 4.

11 Evans Bodycam at 1:58–2:11; Doc. No. 104-1 at 4.

12 Hess Bodycam 0:14–0:35; Kimpel Bodycam at 1:32–1:58; Evans Bodycam at 2:00–2:04;

Lickwar Bodycam at 2:00; Hopkins Bodycam at 4:17; Doc. No. 106-1 at 4; Doc. No. 126 at 119.

13 Hopkins Bodycam at 4:41–5:00; Doc. No. 126 at 40–41; Doc. No. 126 at 68; Kimpel Bodycam

at 2:00–2:10; Evans Bodycam at 2:30–2:38; Doc. No. 126 at 119.

14 Doc. No. 126 at 40–41.

15 Kimpel Bodycam at 2:10–2:12.

16 Kimpel Bodycam at 2:26–2:42.

17 Kimpel Bodycam at 2:40–2:42.

18 Kimpel Bodycam at 2:45–2:57.

Less than thirty seconds later, Dawes started her car, at which point the

officers again screamed commands for Dawes and Rosales to show their hands.19

When Officer Hess observed Dawes’s car turn on, he got back in the squad car, telling

the other officers to “watch out” and “move move move,” as he moved the squad car

closer.20 As Officer Hess moved the squad car, Dawes’s car began moving backwards.

Right after Officer Hess stopped, Dawes’s car hit the squad car.21 Dawes then

changed directions, drove forward, and hit the fence in front of her car.22 Then Dawes

put the car back in reverse. At the moment that Dawes’s reverse lights came on for

the second time and 6.1 seconds before Officer Hess fired the first shot, the officers

were in the following locations:23

19 Kimpel Bodycam at 3:11–3:14.

20 Doc. No. 106-1 at 4; Hess Bodycam at 0:51-59; Kimpel Bodycam at 3:20; Evans Bodycam at

3:40.

21 Doc. No. 106-1 at 4; Kimpel Bodycam at 3:10–3:20; Evans Bodycam at 3:40; Doc. 126 at 8

(Rosales Decl.); Hess Bodycam at 1:00–1:02; Hopkins Bodycam at 6:04; Kimpel Bodycam at 3:19.

22 Doc. No. 126 at 8 (Rosales Decl.); Hopkins Bodycam at 6:07–6:10; Kimpel Bodycam at 3:24–

3:28.

23 While screenshots are helpful and the Court therefore includes them in its written Order,

the Court ultimately bases its findings on the video footage as a whole. Screenshots help the reader

see the “facts evident from the video recordings”—and will have to suffice until technology advances

enough to support paper that plays video. Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011).

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“Watch out, watch out, watch out, watch out,” Officer Kimpel said, as he and

Officer Hopkins walked behind Dawes’s vehicle toward the rear left side of the squad

car.25 As they walked, Officer Hopkins was behind Officer Kimpel.?° Dawes’s car

began moving backwards.?’ The officers continued to yell commands.?* By this point,

Officer Hess had exited the squad car and stood behind the driver’s door, with his

weapon drawn and trained on Dawes’s car.?® Officer Hess told the other officers,

“back up back up,” and ordered Dawes and Rosales not to move.?°

24 Video “2-C Sync_With_Camera_Views’ at 0:22.

25 Kimpel Bodycam at 3:25-3:37; Hopkins Bodycam at 6:10-6:18.

26 Hopkins Bodycam at 6:10-6:15.

27 Hess Bodycam 1:08-1:13.

28 Td.

22 Hess Bodycam at 1:07.

30 Kimpel Bodycam at 3:25-3:37; Hess Bodycam 1:08-1:14.

Dawes’s car continued to move in reverse at a low rate of speed.*! One-tenth

of a second before Officer Hess fired the first shot, the officers’ positions and the speed

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Then, in a span of about four seconds, Officer Hess fired nine rounds at the

passenger side of Dawes’s vehicle, shattering the passenger window.** At some point

during Officer Hess’s firing his first nine rounds, Officer Kimpel fired his one and

only round.*4

31 Hess Bodycam at 1:10-1:16.

82 Video “2-D Velocity_Positions_Time_to_Shots” at 0:38.

33 Doc. No. 106-1 at 5 (Hess Affid.); Doc. No. 126 at 44 (Hess Depo.); see also Hess Bodycam at

1:15-1:20; Kimpel Bodycam at 3:35-3:38; Hopkins Bodycam at 6:19-6:23; Evans Bodycam at □□□□□□

4:07,

34 Doc. No. 126 at 120 (IA Brief).

Dawes’s car momentarily stopped.35 From when Dawes’s car began moving

backwards after hitting the fence in front of her car to when her car momentarily

stopped after the initial shots were fired, Dawes’s car’s maximum speed was 3.2

miles-per-hour.36

When Dawes’s car momentarily stopped, Officer Hess could then see inside the

vehicle and observed that Dawes appeared to have been shot at least once.37 Her

hands were no longer on the steering wheel, as she had one hand on her chest and

one in her lap.

But then Dawes’s car started moving again, and Officer Hess fired three more

shots before Dawes’s car came to rest.38 Officer Hess then approached Dawes’s car

where she was slumped in the reclined driver’s seat with her left hand in her lap and

her right hand next to her head.39

Several minutes later Officer Hess asked Officer Kimpel “who was back there,”

and Officer Kimpel responded, “me and Hopkins, we moved.”40 Bodycam footage

shows that both Officers Hopkins and Kimpel had moved out of Dawes’s immediate,

direct path as she moved backwards after hitting the fence—with Officer Kimpel

35 Hess Bodycam 1:13–1:17; Doc. No. 106-1 at 5 (Hess Affid.); Doc. No. 126 at 8 (Rosales Decl.).

36 Video “2-D Velocity_Positions_Time_to_Shots” at 0:30–0:40.

37 Doc. No. 126 at 45 (Hess Depo.).

38 Hess Bodycam at 1:17–1:20. Because Dawes’s car started moving again, this is not like cases

where an officer shoots a “clearly incapacitated suspect” and thus violates the suspect’s clearly

established, constitutional rights. Mason v. Lafayette City-Par. Consol. Gov’t, 806 F.3d 268, 278 (5th

Cir. 2015).

39 Hess Bodycam at 3:20–3:47.

40 Hess Bodycam at 4:48–4:53; Doc. No. 126 at 48 (Kimpel Depo.).

moving in front of and/or to the right of Officer Hopkins.*! At the moment that Officer

Hess fired the first shot, no officer was directly behind Dawes’s car—they were all

located on the passenger side at varying distances and some officers had the patrol

car positioned between Dawes’s car and themselves:

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After the passenger window had been shot out, Rosales eventually exited

Dawes’s car at the officers’ directions and was handcuffed until an ambulance arrived

to assist Dawes, who later died at the hospital.*? Officers searched Dawes’s car and

discovered a small handgun underneath a pillow between the driver and passenger

seat behind the central console.‘4 The defendants were not aware of the gun at the

41 Kimpel Bodycam at 3:25-3:37; Hopkins Bodycam at 6:14-6:18; Hess Bodycam at 1:17-1:22;

Doc. 126 at 73 (Kimpel Depo.).

42 Video “2-C Sync_With_Camera_Views” at 0:28.

“3 Doc. No. 126 at 8 (Rosales Decl.).

“4 Doc. No. 106-1 at 11 (Evans Affid.); Doc. No. 126 at 9 (Rosales Decl.).

time of the shooting.45 An investigation subsequently revealed that Officer Kimpel’s

bullet struck Dawes’s car and four of Officer Hess’s bullets struck Dawes.46

In her report and recommendation, the Magistrate Judge helpfully recounted

some of the parties’ subsequent testimony about that fateful night.47 Here are some

highlights: Rosales testified that Dawes awakened him and told him that she heard

something outside the car.48 He could hear voices and yelling, but says that the

fogged-up windows and bright lights outside the car made it difficult to discern what

was happening.49

Officer Hess testified that he pulled the squad car forward to provide cover for

the officers and to limit the space available for Dawes to accelerate if she tried to run

down the officers.50 Officer Hess testified that he interpreted Dawes hitting the fence

in front of her car as a failed attempt to escape.51 He testified that he fired at Dawes

because he believed that Officers Hopkins and Kimpel were in her path and that

Dawes was trying to run over them.52 Similarly, Officer Kimpel testified that he shot

because he thought that Officer Hopkins was in Dawes’s path and that Dawes’s

45 Doc. No. 126 at 43–44 (Hess Depo.); Doc. No. 126 at 74 (Kimpel Depo.).

46 Doc. No. 126 at 120 (IA Brief).

47 Doc. No. 136 at 13–15.

48 Doc. No. 126 at 7.

49 Id.

50 Doc. No. 106-1 at 4.

51 Id. at 5.

52 Id. at 4–5.

vehicle posed a danger.53 As it turned out, all officers were out of Dawes’s direct,

immediate path when Hess and Kimpel fired their rounds.

The plaintiffs filed this suit against the City of Dallas and Officers Kimpel and

Hess under 42 U.S.C. § 1983.54 The plaintiffs assert that Officers Hess and Kimpel

violated Dawes’s and Rosales’s Fourth Amendment right to be free from excessive

force.

Officers Hess and Kimpel filed a motion for summary judgment on the basis of

qualified immunity.55 The Magistrate Judge entered her findings, conclusions, and

recommendations on the motion.56 The Magistrate Judge found that there were at

least four genuine disputes of material fact precluding summary judgment and

recommended denying qualified immunity to both Officers Hess and Kimpel.

II. Summary Judgment Standard

Courts must grant summary judgment if the movant shows that “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.”57 A material fact is one “that might affect the outcome of the suit

under the governing law.”58 And a “dispute is genuine ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’”59 Courts “resolve

53 Doc. No. 126 at 65–67.

54 Doc. No. 91. This motion for summary judgment does not involve the City of Dallas.

55 Doc. No. 104.

56 Doc. No. 136.

57 FED. R. CIV. P. 56(a).

58 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

59 Westfall v. Luna, 903 F.3d 534, 546 (5th Cir. 2018) (quoting Anderson, 477 U.S. at 248).

factual controversies in favor of the nonmoving party, but only where there is an

actual controversy, that is, when both parties have submitted evidence of

contradictory facts.”60 “Summary judgment is not foreclosed by some metaphysical

doubt as to the material facts, by conclusory allegations, by unsubstantiated

assertions, or by only a scintilla of evidence.”61

Before reaching the substantive qualified-immunity analysis, the Court

addresses the four purported genuine disputes of material fact that the Magistrate

Judge identified in her report and recommendation. The Magistrate Judge concluded

that “many facts are disputed . . . which would significantly impact the analysis” such

as (1) “whether Plaintiffs knew police officers were outside the vehicle,” (2) “whether

Dawes’s car hit Hess’s car or vice-versa,” (3) “whether Dawes reversed out of the

parking lot quickly or slowly,” and (4) “where officers were located at various times

during the interaction.”62

In their objections to the Magistrate Judge’s report, the defendants assert that

none of these facts are in dispute.63 The defendants stress that “[t]he speed of

Dawes’s car and the locations of the officers . . . are not in dispute.”64 In response to

the defendants’ objections, the plaintiffs do not argue that there are genuine disputes

of material fact. Rather, they argue that the undisputed, objective speeds and

60 Lexon Ins. Co. v. Fed. Deposit Ins. Corp., 7 F.4th 315, 321 (5th Cir. 2021) (cleaned up).

61 Id. at 322 (cleaned up).

62 Doc. No. 136 at 21–22.

63 Doc. No. 137 at 6.

64 Doc. No. 137 at 2.

locations are more important for the qualified-immunity analysis than the officers’

subjective perspectives.65 Thus, it appears that the parties agree that there are no

genuine disputes of material fact. Nevertheless, the Court will examine each of the

Magistrate Judge’s findings.

As for purported dispute (1) (whether the plaintiffs knew that police officers

were outside the vehicle), even assuming that it is disputed, it is not material. The

Magistrate Judge correctly acknowledges elsewhere in her report that the qualified-

immunity inquiry focuses on the objective reasonableness of the officer-defendants’

actions, not the subjective knowledge of the plaintiffs.

As for purported dispute (2) (whether Dawes’s car hit Officer Hess’s car or vice-

versa), this fact is not actually disputed. The plaintiffs stated in their response to the

defendants’ motion for summary judgment: “As [Dawes] backed out of the parking

spot, she bumped into something. . . . She had bumped into the squad car . . . .”66 The

defendants do not dispute the plaintiffs’ characterization and, importantly, the

plaintiffs do not say that this fact is disputed in their response to the defendants’

objections to the Magistrate Judge’s report. Plus, Officer Hopkins’s bodycam shows

that the squad car was not moving when Dawes’s car hit the squad car.67

As for purported disputes (3) and (4) (whether Dawes reversed out of the

parking lot quickly or slowly and where officers were located at various times during

65 See Doc. No. 138 at 8.

66 Doc. No. 125 at 13.

67 Hopkins Bodycam at 6:01–6:06.

the interaction), the defendants and the plaintiffs agree as to the speed of Dawes’s

car at all times and the locations of all officers at all times. The record and briefs

contain video recreations of the incident that track both the speed of Dawes’s car and

the officers’ locations, and no party disputes their accuracy.68

Accordingly, the Court determines that none of these four topics amounts to a

genuine dispute of material fact that would preclude summary judgment.

III. Qualified Immunity

Title 42 U.S.C. § 1983 authorizes plaintiffs to bring claims “against persons in

their individual or official capacity, or against a governmental entity.”69 A party has

a colorable claim under section 1983 if the plaintiff can “allege a violation of a right

secured by the Constitution or laws of the United States and demonstrate that the

alleged deprivation was committed by a person acting under color of state law.”70

The doctrine of qualified immunity provides a defense against these claims to

government officials who “make reasonable but mistaken judgments about open legal

questions” and shields “all but the plainly incompetent or those who knowingly

violate the law.”71 Qualified immunity presents two questions. “The first question is

whether the officer violated a constitutional right. The second question is whether

68 See, e.g., Doc. No. 125 at 13. The defendants do object that the videos are irrelevant, but not

that they are inaccurate. Doc. No. 131 at 6.

69 Pratt v. Harris Cnty., 822 F.3d 174, 180 (5th Cir. 2016) (cleaned up).

70 Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (cleaned up).

71 Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).

the right at issue was clearly established at the time of the alleged misconduct.”72 A

court can begin its inquiry with either prong.73

Once a defendant has made a good-faith assertion of the defense of qualified

immunity, the burden shifts to the plaintiff to show that the defense is not available.74

So the plaintiff has to deal with both prongs: (1) “the plaintiff must show that there

is a genuine dispute of material fact and that a jury could return a verdict entitling

the plaintiff to relief for a constitutional injury”; and (2) “the plaintiff’s version of

those disputed facts must also constitute a violation of clearly established law.”75

A. Clearly Established Law76

Qualified immunity’s second prong “requires the plaintiff to ‘identify a case’—

usually, a ‘body of relevant case law’—in which ‘an officer acting under similar

72 Jackson v. Gautreaux, 3 F.4th 182, 186 (5th Cir. 2021) (cleaned up).

73 Pearson v. Callahan, 555 U.S. 223, 236 (2009).

74 Joseph v. Bartlett, 981 F.3d 319, 329–30 (5th Cir. 2020).

75 Id. at 330.

76 A brief preliminary note: The plaintiffs argue that the Court is bound by its determination

at the motion-to-dismiss stage that Lytle v. Bexar County, 560 F.3d 404 (5th Cir. 2009), provided the

clearly established law for Officers Hess and Kimpel to know that their conduct was unconstitutional.

See Doc. No. 125 at 33 (Plaintiffs’ Response to Defendants’ Motion for Summary Judgment); Doc. No.

87 at 9–10 (Court’s order on motion to dismiss finding that Lytle provided clearly established law in

light of plaintiffs’ allegations that no one was behind Dawes’s car when she backed up and the officers

did not have to react to an “abrupt change of direction”). When the Court made that finding at the

motion-to-dismiss stage, it had not considered the video and bodycam footage of the incident. The

Court did not have the parties’ discovery to aid it in the qualified-immunity analysis. The Court did

not have the benefit of the Fifth Circuit’s recent guidance that it is “dubious” that Lytle stands for the

proposition that “an officer lacks an objectively reasonable basis for believing his own safety is at risk—

and therefore cannot use concerns about his own safety to justify deadly force—when he is not in the

path of the vehicle.” Harmon v. City of Arlington, 16 F.4th 1159, 1166–67 (5th Cir. 2021). The Court

considered only the limited context and allegations that the plaintiffs’ complaint provided and accepted

them as true. Summary judgment is very different, and the Court is not bound by its prior

determination based only on the plaintiffs’ allegations. Rather, at summary judgment, the Court will

analyze all the evidence—without weighing evidence, evaluating the credibility of witnesses, or

resolving factual disputes—and determine whether a reasonable jury drawing all inferences in favor

circumstances . . . was held to have violated the [Constitution].’”77 “A right is ‘clearly

established’ only if preexisting precedent ‘ha[s] placed the . . . constitutional question

beyond debate.’”78 The burden is “heavy.”79 “[A]s the Supreme Court has repeatedly

admonished lower courts, we must define [the] constitutional question with

specificity.”80 “[T]he dispositive question is ‘whether the violative nature of

particular conduct is clearly established.’”81

“The specificity requirement assumes special significance in excessive force

cases, where officers must make split-second decisions to use force.”82 “[O]vercoming

qualified immunity is especially difficult in excessive-force cases.”83 “[P]olice officers

are entitled to qualified immunity unless existing precedent ‘squarely governs’ the

specific facts at issue.”84 “To overcome qualified immunity, the law must be so clearly

established that every reasonable officer in this factual context . . . would have known

he could not use deadly force.”85 And it is “the plaintiff’s burden to find a case in his

favor that does not define the law at a high level of generality.”86

of the nonmoving party could arrive at a verdict in that party’s favor. See Guzman v. Allstate

Assurance Co., 18 F.4th 157, 160 (5th Cir. 2021).

77 Joseph, 981 F.3d at 330 (quoting Dist. of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)).

78 Harmon, 16 F.4th at 1165 (quoting Ashcroft, 563 U.S. at 741).

79 Id.

80 Id. at 1166.

81 Id. (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)).

82 Id.

83 Morrow v. Meachum, 917 F.3d 870, 876 (5th Cir. 2019).

84 Harmon, 16 F.4th at 1166 (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)).

85 Id.

86 Vann v. City of Southaven, 884 F.3d 307, 310 (5th Cir. 2018) (emphasis added) (cleaned up).

Here, the Court chooses to begin with the second prong and asks: Could officers

Hess and Kimpel have reasonably interpreted the law in existence as of January 18,

2017 to conclude that the perceived threat that Dawes posed was sufficient to justify

deadly force?87

The clearly established prong requires the Court to place this case’s specific

facts against the backdrop of other cases where a court found that the defendant

violated the Constitution.88 The north star of excessive-force cases is the Supreme

Court’s decision in Tennessee v. Garner.89 Garner is substantially different from this

case because Garner involved a suspect fleeing on foot,90 but Garner did establish a

“framework” that “forbids deadly force unless the officer had probable cause to believe

[a] suspect poses ‘a threat of serious physical harm’ to the officer or others.”91 In

placing this case on the factual spectrum of others cases, the Court keeps the Garner

framework in mind and also heeds the Supreme Court and Fifth Circuit’s repeated,

clear instructions to define clearly established law with specificity—so much

specificity that the officer’s conduct must have been “clearly unreasonable . . . in the

specific situation the officer confronted.”92

87 See Reyes v. Bridgwater, 362 F. App’x 403, 408 (5th Cir. 2010).

88 Doc. No. 136 at 25; Joseph, 981 F.3d at 330.

89 Tennessee v. Garner, 471 U.S. 1 (1985).

90 Id. at 3–4. Importantly, the “the Supreme Court has warned . . . against extending Garner.”

Morrow, 917 F.3d at 878.

91 Goldston v. Anderson, 775 F. App’x 772, 773 (5th Cir. 2019) (quoting Garner, 471 U.S. at 3).

92 Goldston, 775 F. App’x at 773; see also Harmon, 16 F.4th at 1166.

In her report and recommendation, the Magistrate Judge first examined

Hathaway v. Bazany.93 There, “a police officer who was on foot fired at a vehicle

immediately after it struck him.”94 The Fifth Circuit affirmed the district court’s

grant of qualified immunity to the officer. The Fifth Circuit “determined that the

vehicle, which had accelerated toward the officer after he had attempted to pull it

over, posed such a threat to the officer that the use of deadly force was objectively

reasonable even if the officer had fired immediately after the vehicle struck him.”95

The Fifth Circuit “reasoned that the extremely brief period of time between when the

car accelerated toward and struck the officer and the officer’s firing of his weapon was

insufficient for the officer to perceive new information indicating the threat was

past.”96

The Magistrate Judge also analyzed Poole v. City of Shreveport, a 2021 Fifth

Circuit opinion arising from a March 31, 201797 incident in which a police officer shot

a suicidal man after he exited his vehicle following a low-speed car chase.98 The

district court found genuine disputes of material fact as to whether the officer warned

the suspect before the shooting, whether the suspect was turned away from the

officer, and whether it was apparent that the suspect’s hands were empty, and thus

93 Hathaway v. Bazany, 507 F.3d 312 (5th Cir. 2007).

94 Lytle, 560 F.3d at 413 (describing Hathaway).

95 Id.

96 Id. at 413–14 (internal quotations omitted).

97 This case’s incident occurred on January 18, 2017.

98 Poole v. City of Shreveport, 13 F.4th 420, 422 (5th Cir. 2021).

denied summary judgment.99 The Fifth Circuit affirmed the denial of summary

judgment and qualified immunity, agreeing with the district court that there were

genuine disputes of material fact.100 The Fifth Circuit noted that summary judgment

was inappropriate in light of the disputed facts because—if a reasonable jury accepted

the plaintiff’s version of the facts—then it could reasonably conclude that the officer

violated the plaintiff’s rights.101

There are two reasons that Poole does not provide the clearly established law

that the plaintiffs here need to overcome Officer Hess’s and Officer Kimpel’s assertion

of qualified immunity. First, Poole presented significantly different facts from this

case, the Fifth Circuit based its affirmance on the genuine disputes of material fact,

and the underlying incident occurred after the incident in this case. So, for multiple

reasons, Poole itself cannot provide the clearly established law for this case. Second,

the Poole panel cited several cases demonstrating in specific circumstances the

clearly established law that deadly force is excessive 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.102 But all of those cases present significantly different facts, and

the Court cannot extrapolate from those very different cases a clearly established law

99 Id. at 423–24.

100 Id.

101 Id. at 426 (“If a jury views the disputed facts in favor of the plaintiff—concluding that

Briceno shot Poole, without warning, seeing that he was empty-handed and turning away from the

officer—then Briceno violated Poole’s clearly established right to be free from unreasonable seizure.”).

102 Id. at 425 (citing Garner, 471 U.S. at 11; Roque v. Harvel, 993 F.3d 325, 329 (5th Cir.

2021); Waller v. Hanlon, 922 F.3d 590, 601 (5th Cir. 2019); Romero v. City of Grapevine, 888 F.3d 170,

176 (5th Cir. 2018); Lytle, 560 F.3d at 417).

for this case—without contravening the Supreme Court and Fifth Circuit’s repeated

and clear warnings that qualified-immunity’s second prong is a high bar and must be

defined with specificity.

The Magistrate Judge analyzed another Fifth Circuit case, Goldston v.

Anderson, a 2019 opinion arising from a 2015 incident.103 In Goldston, a police officer

named Straten was surveilling the suspect, Goldston, at Goldston’s girlfriend’s

house.104 Goldston had several outstanding arrest warrants on him, one of which

alleged that Goldston had attempted to run over and drag a police officer.105 The

Fifth Circuit recounted the facts:

When Goldston arrived at the house, Straten notified Officer Anderson,

who was waiting nearby to help if necessary. When Goldston began to

back out of the driveway in his pickup truck, Anderson blocked the

vehicle with his patrol car. Goldston got out of his truck and Anderson

ordered him to show his hands and get on the ground. Instead, Goldston

got back into the truck and locked the doors. Straten positioned her

unmarked minivan behind him at an angle, boxing him in. Apparently

trying to escape, Goldston began to back up quickly toward Straten and

Anderson fired into the cab, striking Goldston multiple times.106

The Fifth Circuit affirmed the district court’s grant of qualified immunity to

Officer Anderson. On the clearly established law prong, the Fifth Circuit rejected

Goldston’s argument that Garner’s “general standard” provided the clearly

established law forbidding the specific actions that Officer Anderson took.107 Instead,

103 Goldston v. Anderson, 775 F. App’x 772 (5th Cir. 2019).

104 Id.

105 Id.

106 Id. at 772–73.

107 Id. at 773.

“[e]xisting precedent must place the conclusion that Anderson acted unreasonably in

these circumstances beyond debate.”108 The Fifth Circuit found that Goldston had

not met this “high bar.”109

Like Poole, Goldston does not provide the clearly established law that the

plaintiffs need. The officers in Goldston were granted qualified immunity because

the plaintiff lost on both of qualified immunity’s prongs. For the same reason,

Hathaway didn’t clearly establish the law putting Officers Hess and Kimpel on notice

that their actions were unconstitutional.

For their part, the plaintiffs argue that “Garner provides clearly established

law” “under these circumstances.”110 But the Fifth Circuit says no: “At

most, Garner prohibits using deadly force against an unarmed burglary suspect

fleeing on foot who poses no immediate threat.”111 Garner provides only the “general

standard” for deadly force cases, and plaintiffs must go beyond Garner and identify a

case with specificity.112

The plaintiffs also cite Lytle, where the Fifth Circuit viewed the facts in the

light most favorable to the plaintiff and explained that—if the police officer in that

case had indeed shot the suspect when the suspect was in a fleeing vehicle three-to-

four-houses’ distance away from the officer—then the officer violated the suspect’s

108 Id. (cleaned up).

109 Id.

110 Doc. No. 125 at 35.

111 Harmon, 16 F.4th at 1167.

112 Goldston, 775 F. App’x at 773.

constitutional rights.113 The facts in Lytle are significantly different from the facts

of this case. Whereas, in Lytle, the Fifth Circuit assumed for summary-judgment

purposes that the suspect was far away, here the suspects’ vehicle was relatively close

to the officers in a confined space in the corner of a parking lot.114

The plaintiffs also quote Newman v. Guedry, where the Fifth Circuit held that

the plaintiff’s “right to be free from excessive force . . . was clearly established in

August 2007.”115 That was true for the Newman plaintiff, but unfortunately for the

plaintiffs here, that does not translate to clearly established law for this case because

the facts are extremely different. The Newman plaintiff and officer essentially

engaged in hand-to-hand combat after the suspect got out of his car during a traffic

stop and consented to a pat-down search.116 Nothing like that occurred here.

Irwin v. Santiago117 is another relevant Fifth Circuit qualified-immunity case

which arose from a June 8, 2018 incident.118 In Irwin, one officer was standing toward

the front driver’s side of the suspect’s vehicle and another was standing toward the

back driver’s side.119 The suspect began to “slowly roll his vehicle forward.”120 Both

113 Lytle, 560 F.3d at 412–13.

114 Hess Bodycam 1:00–1:20.

115 703 F.3d 757, 763 (5th Cir. 2012).

116 Id. at 759–60.

117 Irwin v. Santiago, 2021 WL 4932988, (5th Cir. Oct. 21, 2021).

118 See Irwin v. Santiago, No. 3:19-CV-2926-B, 2021 WL 75452 (N.D. Tex. Jan. 8, 2021) (Boyle,

J.).

119 Irwin, 2021 WL 4932988, at *1.

120 Id.

officers fired their weapons.121 The Fifth Circuit agreed with the district court’s

determination that the law was not clearly established on the date of the incident to

give the officers notice that their conduct would have violated the Constitution.122

The Fifth Circuit explained: “[W]e have only been able to find . . . circuit precedent

establishing a Fourth Amendment violation where an officer was positioned behind

a vehicle that was moving away from him as he fired.”123 That didn’t cut it, so the

Fifth Circuit affirmed the grant of qualified immunity. For similar reasons and

considering the earlier date of the incident here (January 18, 2017), Irwin counsels

against finding that the law was clearly established to give Officers Hess and Kimpel

fair warning that their conduct was unconstitutional.

One exception to the requirement that a plaintiff identify clearly established

law is when a case presents facts so grotesque, so egregious, so “obvious” that the

defendant cannot claim immunity based on a lack of prior caselaw.124 For example,

the Supreme Court held in Hope v. Pelzer that a defendant would need no prior law

to give him fair warning that handcuffing a prisoner to a hitching post for seven hours

and depriving him of food and water would violate the Constitution’s Eighth

Amendment.125

121 Id.

122 Id. at *3.

123 Id.

124 See Reyes, 362 F. App’x at 408 (“Indeed, unless the violation is ‘obvious,’ there must be

relevant case law that ‘squarely governs’ the situation . . . .” (quoting Brosseau v. Haugen, 543 U.S.

194, 199 (2004))).

125 Hope v. Pelzer, 536 U.S. 730, 745 (2002).

The Fifth Circuit recently explained: “No doubt ‘obvious’ excessive force cases

can arise. . . . But they are so rare that the Supreme Court has never identified one

in the context of excessive force.”126 Here, the Magistrate Judge did not find this to

be an “obvious” case, but the plaintiffs appear to argue that it is,127 so the Court

briefly addresses it. The facts of this case are a far cry from tying a prisoner to a

hitching post for seven hours. They are a far cry from defendant officers leaving

prisoners in cells containing “massive amounts of feces over a period of six days.”128

They are a far cry from defendant public officials seeking to criminally prosecute a

journalist for asking them questions.129 This is not an “obvious-constitutional-

violation” case and the Court rejects the plaintiffs’ argument.

It is not the defendants’ burden to identify clearly established law showing that

they did not violate the plaintiffs’ constitutional rights. Rather, it is the plaintiffs’

burden to provide clearly established law that put the officers on notice that they did

violate the plaintiffs’ constitutional rights—and the plaintiffs’ burden is heavy.130

The plaintiffs have not carried their burden. The Court must obey the Supreme

Court’s and Fifth Circuit’s recent, unequivocal, forceful instructions to define clearly

established law with specificity. And that requires finding that Officers Hess and

Kimpel deserve qualified immunity.

126 Harmon, 16 F.4th at 1167.

127 Doc. No. 125 at 35.

128 Villarreal v. City of Laredo, 17 F.4th 532, 539 (5th Cir. 2021) (describing Taylor v. Riojas,

141 S. Ct. 52 (2020) (reversing Fifth Circuit’s grant of qualified immunity)).

129 Villarreal, 17 F.4th at 540.

130 Vann, 884 F.3d at 310; Harmon, 16 F.4th at 1165.

B. Constitutional Violation

Because the Court concludes that the plaintiffs fail on qualified immunity’s

second prong, it need not address the first prong, which asks whether the defendant

officers violated the plaintiffs’ constitutional rights to be free from excessive force.

Nevertheless, the Court does so.

“To prevail on an excessive force claim, a plaintiff must establish injury which

resulted directly and only from a use of force that was clearly excessive and the

excessiveness of which was clearly unreasonable.”131 “[T]he relevant Fourth

Amendment questions are whether the force was ‘excessive’ and ‘unreasonable’ as

‘judged from the perspective of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight.’”132 “That calculus ‘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.’”133

“In evaluating whether the officer used ‘excessive’ force, courts consider the

‘severity of the crime at issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.’”134 The Fifth Circuit holds that “[a]n officer’s

use of deadly force is not excessive, and thus no constitutional violation occurs, when

131 Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007) (cleaned up).

132 Harmon, 16 F.4th at 1163 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).

133 Id. (quoting Graham, 490 U.S. at 396–97).

134 Id. (quoting Graham, 490 U.S. at 396).

the officer reasonably believes that the suspect poses a threat of serious harm to the

officer or to others.”135 “A court must ‘be cautious about second-guessing [the] police

officer’s assessment’ of the threat level.”136

Although this case presents a relatively close question of whether a

constitutional violation occurred, the Court concludes that, on balance, Officers Hess

and Kimpel reasonably believed that Dawes posed a threat of serious harm to

themselves and the other officers.

Less than one minute before Officer Hess fired the first shot, he had walked

over to and stood by Officers Kimpel and Hopkins, who were standing a few feet from

the rear left corner of Dawes’s vehicle, with the fence behind and to their left, and the

135 Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009).

136 Harmon, 16 F.4th at 1163 (quoting Ryburn v. Huff, 565 U.S. 469, 477 (2012)).

row of parked cars behind and slightly to their right.!°’ The view from Officer Hess’s

bodycam as he approached Officers Kimpel and Hopkins:

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138

After standing by Officers Kimpel and Hopkins for a few seconds, Officer Hess

stood behind Dawes’s car for a few seconds, shining his flashlight in the back window,

yelling “Hands up!,” and training his gun on Dawes’s car.!3® When Dawes turned her

car on, Officer Hess quickly got into the squad car and moved it forward as other

officers continued to scream commands at Dawes and Rosales.!4° After Dawes hit the

squad car while Officer Hess was in it, drove forward, and as she hit the fence, Officer

187 Hess Bodycam at 0:07-0:20; see also Hess Bodycam at 1:24 (showing row of parked cars

that was on the other side of the path that accessed the parking spots, and behind Dawes’s car).

1388 Hess Bodycam at 0:15.

1389 Hess Bodycam at 0:27-0:40.

140 Hess Bodycam at 0:48-1:02.

26

Hess stepped out of the squad car and trained his gun on Dawes’s car.'*! The view

from Officer Hess’s bodycam as Dawes’s reverse lights came on for the second time:

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141 Hess Bodycam at 1:00-1:07.

142 Hess Bodycam at 1:07.

27

Officers Kimpel and Hopkins were, at that moment, in the direct path behind

Dawes’s car:

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143 Video “2-C Sync_With_Camera_Views” at 0:22.

28

The view from Officer Hopkins’s bodycam, as Officer Hess stood behind the

squad car door with his gun drawn and trained on Dawes’s car, and as Officers

Hopkins and Kimpel were in Dawes’s car’s direct path:

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144

As Dawes drove her car backwards and the officers continued to scream

commands, and after a few seconds, Officers Hess and Kimpel fired their weapons.

What matters for the constitutional inquiry is whether the officers believed—

on the scene—that the suspect posed a threat of serious harm and whether that belief

was objectively reasonable. The contemporaneous, on-scene assessment (and its

reasonableness or lack thereof) is determinative because we must never “allow the

theoretical, sanitized world of our imagination to replace the dangerous and complex

144 Hopkins Bodycam at 6:09.

145 See Harmon, 16 F.4th at 1163.

29

world that policemen face every day.”146 Indeed, “[w]hat constitutes ‘reasonable’

action may seem quite different to someone facing a possible assailant than to

someone analyzing the question at leisure” or, for example, during a deposition

months after the incident, aided by the 20/20 vision of hindsight bestowed on the

viewer by bodycam footage.147

Here, it is undisputed that both Officer Hess’s and Officer Kimpel’s on-scene

assessment was that Dawes’s vehicle posed a threat of serious harm to themselves

and other officers. Officer Hess believed that “two officers [were] behind [Dawes’s]

vehicle”148 and Officer Kimpel also “believe[d] there was somebody there”149 behind

Dawes’s vehicle. Thus, the only remaining question is whether that belief was

objectively reasonable.

On these facts, the Court concludes that Officers Hess and Kimpel reasonably

believed that Dawes posed a threat of serious harm to themselves and other officers.

Specifically, Officer Hess reasonably believed that Officers Kimpel and Hopkins were

in danger, Officer Kimpel reasonably believed that Officer Hopkins was in danger,

and the officers reasonably acted in accord with those reasonable beliefs.

146 Malbrough v. Stelly, 814 F. App’x 798, 806 (5th Cir. 2020) (quoting Stroik v. Ponseti, 35 F.3d

155, 158 (5th Cir. 1994)).

147 See Stroik, 35 F.3d at 158–59 (cleaned up).

148 Doc. No. 126 at 40; see also Doc. No. 106-1 at 5 (“I believed at least two officers were

positioned behind the suspects’ vehicle . . . . I then witnessed the female suspect place the vehicle in

reverse again, and back directly toward the location where I believed two officers remained.”).

149 Doc. No. 126 at 64; see also id. at 73 (“When I fired, I believed [Dawes’s vehicle] did pose a

danger.”); Doc. No. 106-1 at 9 (“Officer Hopkins and I backed up to a position behind [Dawes’s]

vehicle . . . . The suspect then placed the vehicle in reverse and I moved to the right while crossing in

front of Officer Hopkins. The suspect then began backing up toward where I believed Officer Hopkins

was still standing. I believed the suspect was going to strike Officer Hopkins . . . .”).

Why? Because these tragic and chaotic events occurred in a relatively tight

space in the corner of a parking lot in the dark of night. Because the officers were

investigating a suspicious vehicle with two suspects inside, and they learned during

the incident that the car had been reported stolen.150 Because Dawes and Rosales

had ignored the officers’ countless, screamed commands. Because Dawes had hit

Officer Hess’s squad car while he was in it. Because Dawes had driven into the fence

with enough force to crumple it. Because Officer Hess had stood beside and observed

Officers Kimpel and Hopkins behind Dawes’s car just seconds before Dawes cranked

her car and began her apparent, chaotic attempt to flee.151 Because Officer Hess’s

body was facing the corner of the parking lot and the rear right corner of Dawes’s car

with his gun trained on her car, while Officers Kimpel and Hopkins walked

approximately behind and to Officer Hess’s left.152 Because, as shown by Officer

Hopkins’s bodycam footage, he and Officer Kimpel had barely moved out of Dawes’s

path by the time that Officer Hess fired the first shot.153 Because, also from the

viewpoint of Officer Hopkins’s bodycam, Officer Kimpel was in front of and to the left

of Officer Hopkins as Officer Kimpel moved out of Dawes’s direct path.154 Because,

even after the officers had fired multiple times, Dawes continued to drive in reverse.

150 See Harmon, 16 F.4th at 1163 (noting that courts consider the “severity of the crime at

issue”).

151 See id. (noting that courts consider whether the suspect was “attempting to evade arrest by

flight”).

152 See Hess Bodycam at 1:06–1:12; Hopkins Bodycam at 6:08–6:13.

153 Hopkins Bodycam at 6:12–6:19; see also Lytle, 560 F.3d at 413–14 (noting that the period of

time in Hathaway, 507 F.3d 312, was “insufficient for the officer to perceive new information indicating

the threat was past”).

154 Hopkins Bodycam at 5:58–6:16.

Because the officers reasonably believed that Dawes was attempting to flee and had

been unsuccessful at doing so through the fence in front of her car, leaving the only

next possible route being the access path/road in which the officers stood by the squad

car. Because Officers Hess and Kimpel reasonably believed that at least one other

officer was “at least generally” in the “projected path of” Dawes’s vehicle.155

The plaintiffs argue that Officers Hess and Kimpel should have chosen

reasonable, alternative courses of action, such as turning on the squad car’s flashing

emergency lights. Even assuming that the plaintiffs’ proposed alternatives are

indeed reasonable, their argument misunderstands the constitutional question. The

constitutional “question” is “whether the Fourth Amendment require[d]” the officers

to do something other than what they did.156 The “question is not what ‘could have

been achieved.’”157 And “a reasonable search does not become unreasonable simply

because the officer might’ve had other reasonable alternatives.”158 For all of the

reasons that the Court has explained, Officer Hess’s and Officer Kimpel’s actions

were reasonable, and those actions do not become unreasonable just because the

officers may have had other reasonable options. “If an officer has two reasonable

alternatives . . ., she can choose either of them and behave reasonably.”159

155 Edwards v. Oliver, 31 F.4th 925, 931 (5th Cir. 2022) (quoting Irwin, 2021 WL 4932988, at

*3).

156 Illinois v. Lafayette, 462 U.S. 640, 647 (1983).

157 Id.

158 Ramirez v. Guadarrama, 2 F.4th 506, 513 (5th Cir. 2021) (Oldham, J.) (concurring in denial

of rehearing en banc), cert. denied, 142 S. Ct. 2571 (June 30, 2022).

159 Id.

The plaintiffs also note that Officers Hess and Kimpel were later found to have

contravened police-department policy. But “a law enforcement officer’s violation of

department policy ‘is constitutionally irrelevant’ for purposes of a claim brought

under § 1983.”160

“[T]he threat of harm must be ‘judged from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of hindsight.’”161 The Court’s

analysis must “allow[] for the fact that police officers are often forced to make split-

second judgments” and the Court must be slow to second-guess the officers’ on-scene

assessment.162 In light of the facts and the law, the Court finds that only a Monday-

morning quarterback could side with the plaintiffs.163 Therefore, the Court must

160 Craven v. Perry Cnty., No. 2:12-CV-99-KS-MTP, 2013 WL 4458771, at *9 (S.D. Miss. Aug.

16, 2013) (quoting Pasco v. Knoblauch, 566 F.3d 572, 579 (5th Cir. 2009)). See also Scott v. Harris,

550 U.S. 372, 375 n.1 (2007) (“It is irrelevant to our analysis whether Scott had permission to take the

precise actions he took.”).

161 Harmon, 16 F.4th at 1165 (quoting Graham, 490 U.S. at 396).

162 Graham, 490 U.S. at 397; see also Ryburn, 565 U.S. at 477.

163 The Fifth Circuit recently issued a qualified-immunity opinion in Edwards v. Oliver, 31

F.4th 925. In that case, suspects were slowly reversing their car away from two police officers as the

officers commanded the suspects to stop. Id. at 928. Then, the suspects changed direction and began

accelerating “past” one of the police officers. Id. The other officer opened fire, killing one of the car’s

passengers. Id. Unlike in this case, the district court in Edwards adopted the magistrate judge’s

finding that there was a genuine dispute of material fact precluding summary judgment. The Fifth

Circuit agreed and said:

[T]he extent of the car’s threat to Officer Gross is the factual question at the heart of

this case, and despite Oliver’s argument to the contrary, it is a genuinely disputed

question. Oliver describes that the car accelerated ‘towards/near/by’ Officer Gross,

whereas plaintiffs assert that Officer Gross was never in the path of the vehicle. The

magistrate judge identified this as the crux of the factual dispute warranting denial of

summary judgment: ‘[T]he body-camera footage sufficiently raises a fact question . . .

[about the car’s] threat of harm to [Officer] Gross because it was moving away’ from

him.

Id. at 930.

First, Edwards is meaningfully different from this case because, here, the Court concludes that

it simply cannot side with the plaintiffs without engaging in the Monday-morning quarterbacking that

grant Officers Hess and Kimpel qualified immunity on the additional ground that

they did not violate the Constitution.

IV. Evidentiary Rulings

The Magistrate Judge made recommendations on various of the parties’

evidentiary objections.164 The Court finds no error in them and ACCEPTS the

Magistrate Judge’s recommendations.

the Fifth Circuit repeatedly warns against. Second, another meaningful difference is that, in Edwards,

the magistrate judge didn’t mention or acknowledge in its findings, conclusion, and recommendation

the officers’ evidence about their perception that they “heard the window shatter right next to” one of

the officers, which may have “sounded like a gunshot.” Id. Because of that, the Fifth Circuit “d[id]

not have jurisdiction to consider . . . an argument” based on that perception. Id. In contrast, here and

for the reasons explained above the line, Officers Hess and Kimpel had a reasonable basis to believe

that at least one officer was in the path of Dawes’s vehicle as she reversed. Third, here and in contrast

to Edwards, the Court finds that the officers reasonably interpreted the law in existence as of January

18, 2017 to conclude that the perceived threat was sufficient to justify deadly force. Reyes, 362 F. App’x

at 408. Fourth, unlike in Edwards, the bodycam footage here does not “sufficiently raise[] a fact

question.” Edwards, 31 F.4th at 930. Finally, even if the plaintiffs were to win the Edwards battle,

they would still lose the war—because they have not carried their burden on the clearly-established-

law-prong. The Fifth Circuit has repeatedly affirmed grants of qualified immunity in equally factually

analogous cases. See, e.g., Goldston, 775 F. App’x 772; Irwin, 2021 WL 4932988. And “[c]ases cutting

both ways do not clearly establish the law.” Morrow, 917 F.3d at 879.

But if the Fifth Circuit ends up disagreeing with the Court on the above points, then Edwards

controls. And it appears to the Court that Edwards—when it controls—might hold that every

qualified-immunity case involving excessive force and a suspect in a vehicle must go to a jury if the

plaintiffs and defendants disagree as to the extent of the harm that the suspect’s vehicle posed—even

if everyone agrees about what actually happened on the scene, i.e., that the videos are accurate

depictions of what occurred. But wouldn’t that be every case in this category? Of course the plaintiffs

think that their actions didn’t pose a sufficient threat of harm to the officers, and of course the officers

think the opposite.

164 Doc. No. 136 at 2–8.

V. Conclusion

The Court ACCEPTS IN PART and REJECTS IN PART the Magistrate

Judge’s report and GRANTS the defendants’ motion for summary judgment.

IT IS SO ORDERED this 11th day of August, 2022.

_— STARR

UNITED STATES DISTRICT JUDGE

35