Elizondo v. Hinote

UNITED STATES DISTRICT COURT December 09, 2024

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

CORPUS CHRISTI DIVISION

RONALD ELIZONDO, SR., and §

MARIA ELIZONDO, individually and §

as the lawful heirs of the Estate of §

Ronald Elizondo, Jr., §

§

Plaintiffs, §

§

v. § Civil Action No. 2:20-CV-00191

§

DONALD HINOTE, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

At 1:26 a.m. on July 10, 2019, Defendant Donald Hinote’s home security system

alerted to movement in front of his house. Hinote was a trooper with the Texas

Department of Public Safety and was off duty at the time. He grabbed a pistol and went

outside, where he saw Ronald “Nano” Elizondo, Jr. inside a vehicle owned by a third

party parked on the street. Hinote believed that Elizondo was committing a crime, so he

quickly and quietly approached him. Hinote shouted, “Hey, get out of there!” In

response, Elizondo ran away from the vehicle in the only direction available to him—

toward Hinote. Hinote shot at him at least four times, and Elizondo died from those

injuries. He was seventeen. His parents—Ronald Elizondo, Sr. and Maria Elizondo—

filed this lawsuit as a result.1

1 Because three relevant individuals share the same last name in this case, for clarity, the

Court refers to Ronald Elizondo, Jr. as “Elizondo” and his parents, Ronald Elizondo, Sr. and Maria

Elizondo, as “Plaintiffs.”

Pending before the Court is Defendant Donald Hinote’s Motion for Summary

Judgment. (Dkt. No. 139). For the reasons set forth below, the Court GRANTS the

Motion.

I. BACKGROUND2

At 12:45 a.m. on July 10, 2019, Hinote completed his shift as a Highway Patrol

Trooper for the Texas Department of Public Safety (“DPS”) and went home. (Dkt. No.

141-3 at 10). He changed out of his uniform into some gym shorts and fell asleep in front

of the television. (Id. at 12–13). A little before 1:30 a.m., Hinote’s home security system

woke him with an alert of movement in his front yard. (Id. at 13). Hinote checked the

security system video feed on his phone and saw that the lights were on in his truck.3

(Id.). Hinote knew that he had not been in his truck earlier that evening, so he was

concerned. (Id. at 14). He grabbed his concealed-carry pistol from the dresser and ran

outside to investigate. (Id. at 14–15). Hinote verified that nobody was in his truck and

then saw that the lights were on in the car on the street at the end of his driveway. (Id. at

15–16). The car belonged to Hinote’s neighbor. (Id. at 11, 38). And although Hinote could

not identify him at the time, the individual inside the car was Elizondo. (Id. at 11, 18, 38).

2 Except where noted, this section contains only undisputed facts, and all facts and

reasonable inferences have been construed in favor of the nonmovant. Renfroe v. Parker, 974 F.3d

594, 599 (5th Cir. 2020). The Court has not weighed evidence or made credibility findings. Id.

3 Although not known to Hinote at the time, his security system video shows that the

lights were on in his truck because Elizondo opened the driver’s-side door and rifled around the

front seat area of the car, (Dkt. No. 140-B-1 at 00:00–00:17), before exiting the truck, closing the

door, and doing the same with the car parked on the street at the end of Hinote’s driveway, (Dkt.

No. 140-B-2 at 00:00–00:17).

Hinote ran down his driveway and stopped at the back driver’s side of the car.

(Dkt. No. 140-B-3 at 00:00–00:06). He saw a person in sweatpants and a hoodie

rummaging inside with his knees on the front seat and upper body in the back seat. (Dkt.

No. 141-3 at 19). Hinote drew his pistol and called, “Hey, get out of there!” (Dkt. No.

140-B-3 at 00:06; (Dkt. No. 141-3 at 19). Caught by surprise, Elizondo came darting out of

the driver’s seat and attempted to run from the car. (Dkt. No. 140-B-3 at 00:06–00:07). In

doing so, he ran directly at Hinote who saw an object in Elizondo’s hand and fired several

shots, immediately incapacitating Elizondo. (Id. at 00:08); (Dkt. No. 141-3 at 19, 21–22).

Elizondo dropped the flashlight he was holding and fell on the street. (Dkt. No. 140-B-3

at 00:09–00:12); (Dkt. No. 141-3 at 19, 21–22, 39). Hinote checked Elizondo for weapons

and took a hatchet off him before running inside his house to retrieve his cell phone. (Dkt.

No. 140-B-4 at 00:00–00:16); (Dkt. No. 141-3 at 18–20). Hinote returned to the driveway

and called 9-1-1 to report the shooting and to watch over Elizondo. (Dkt. No. 140-B-5 at

00:00–1:33); (Dkt. No. 141-3 at 20, 24–25). After speaking with the emergency dispatcher,

Hinote ran back inside his house to grab his emergency first aid kit. (Dkt. No. 140-B-6 at

00:00–00:19); (Dkt. No. 141-3 at 25). Hinote quickly returned to administer first aid until

Corpus Christi Police and paramedics arrived. (Dkt. No. 140-B-7 at 00:00–00:16); (Dkt.

No. 141-3 at 25, 28). Despite Hinote’s efforts, Elizondo died from the gunshots. (Dkt. 139-

1 at 6) (Dkt. No. 139-1 at 20–21); (see Dkt. No. 141-3 at 27); (Dkt. No. 18 at 2).

Plaintiffs sued Hinote under 42 U.S.C. § 1983 for violating Elizondo’s Fourth

Amendment rights. (Dkt. No. 78 at 29–31). Hinote moved for summary judgment

asserting that he is entitled to qualified immunity. (Dkt. No. 139). Plaintiffs have

responded. (Dkt. No. 141).

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when there is “no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A fact is material if it could affect the suit’s outcome under governing law. Renwick

v. PNK Lake Charles, LLC, 901 F.3d 605, 611 (5th Cir. 2018) (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). And “[a] dispute about

a material fact is ‘genuine’ if the evidence is such that a reasonable jury could return a

verdict for the non-moving party.” TIG Ins. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir.

2002) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. at 2510). The moving party “always

bears the initial responsibility of informing the district court of the basis for its motion”

and identifying the record evidence that “it believes demonstrate[s] the absence of a

genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,

2553, 91 L.Ed.2d 265 (1986). “If the moving party fails to meet [its] initial burden, the

motion [for summary judgment] must be denied, regardless of the nonmovant’s

response.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per

curiam).

If the movant meets this burden, the nonmovant must come forward with specific

facts showing a genuine issue for trial. Fed. R. Civ. P. 56(c); see also Matsushita Elec. Indus.

v. Zenith Radio Corp., 475 U.S. 574, 585–87, 106 S.Ct. 1348, 1355–56, 89 L.Ed.2d 538 (1986).

The nonmovant must “‘go beyond the pleadings and by [the nonmovant’s] own

affidavits, or by the depositions, answers to interrogatories, and admissions on file,

designate specific facts showing that there is a genuine issue for trial.’” Nola Spice Designs,

LLC v. Haydel Enters., 783 F.3d 527, 536 (5th Cir. 2015) (quoting Celotex, 477 U.S. at 324,

106 S.Ct. at 2553). “The nonmovant must ‘identify specific evidence in the record

and . . . articulate the precise manner in which that evidence supports his or her claim.’”

Carr v. Air Line Pilots Ass’n, Int’l, 866 F.3d 597, 601 (5th Cir. 2017) (per curiam) (quoting

Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)), as revised (July 14, 2017).

If evidence is merely colorable or not significantly probative, summary judgment is

appropriate. Parrish v. Premier Directional Drilling, L.P., 917 F.3d 369, 378 (5th Cir. 2019)

(citing Anderson, 477 U.S. at 249–50, 106 S.Ct. at 2511).

In reviewing a motion for summary judgment, the district court views the

evidence in the light most favorable to the nonmovant. Carr, 866 F.3d at 601. This means

that courts must resolve factual controversies in the nonmovant’s favor, “but only

when . . . both parties have submitted evidence of contradictory facts.” Little, 37 F.3d at

1075.

III. QUALIFIED IMMUNITY STANDARD

Qualified immunity protects government officials from civil liability to the extent

that their conduct is objectively reasonable in light of clearly established law. Crostley v.

Lamar Cnty., 717 F.3d 410, 422 (5th Cir. 2013) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818,

102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). The doctrine provides government officials

“‘breathing room to make reasonable but mistaken judgments,’ and ‘protects all but the

plainly incompetent or those who knowingly violate the law.’” Davidson v. City of Stafford,

848 F.3d 384, 391 (5th Cir. 2017) (quoting Messerschmidt v. Millender, 565 U.S. 535, 546, 132

S.Ct. 1235, 1244, 182 L.Ed.2d 47 (2012)).

“A qualified immunity defense alters the usual summary judgment burden of

proof.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). “Once an official pleads the

defense, the burden then shifts to the plaintiff, who must rebut the defense by

establishing a genuine fact issue as to whether the official’s allegedly wrongful conduct

violated clearly established law.” Id.

To overcome a qualified-immunity defense, a plaintiff must show that (1) the

official violated a statutory or constitutional right and (2) the right was so “clearly

established” at the time of the challenged conduct that a reasonable officer would be on

notice that their conduct was against the law. Ramirez v. Killian, 113 F.4th 415, 421 (5th

Cir. 2024) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 2080, 179 L.Ed.2d

1149 (2011)); Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 2515, 153 L.Ed.2d 666 (2002)

(“Officers sued in a civil action for damages under 42 U.S.C. § 1983 have the same right

to fair notice as do defendants charged with the criminal offense defined in 18 U.S.C.

§ 242.”); see also Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3039, 97 L.Ed.2d

523 (1987).

A plaintiff cannot establish these two prongs at the summary-judgment stage

“with conclusory allegations or unsubstantiated assertions of wrongdoing.” Burke v.

Masters, 4:23-CV-00361, 2024 WL 1703085, at *7 (S.D. Tex. Apr. 14, 2024) (first citing

Mitchell v. Mills, 895 F.3d 365, 370 (5th Cir. 2018); and then citing Williams-Boldware v.

Denton Cnty., 741 F.3d 635, 643–44 (5th Cir. 2014)). Instead, a plaintiff “must point to

specific evidence in the record demonstrating a material fact issue concerning each

element of his claim.” Mitchell, 895 F.3d at 370.

And if a video recording is provided, courts should also “‘assign greater weight,

even at the summary judgment stage, to the . . . video recording[s] taken at the scene.’”

Baker v. Coburn, 68 F.4th 240, 244 (5th Cir. 2023) (alteration in original) (quoting Betts v.

Brennan, 22 F.4th 577, 582 (5th Cir. 2022)), as revised (May 19, 2023). If “the video ‘blatantly

contradict[s]’ either party’s account,” courts “‘view[] the facts in the light depicted by the

videotape.’” Macias v. Watkins, No. 23-40580, 2024 WL 3427047, at *2 (5th Cir. July 16,

2024) (alteration in original) (quoting Scott v. Harris, 550 U.S. 372, 380–81, 127 S.Ct. 1769,

1776, 167 L.Ed.2d 686 (2007)). Otherwise, courts draw all inferences in the plaintiff’s

favor. Id. (citing Brown, 623 F.3d at 253).

IV. DISCUSSION

Plaintiffs allege that Hinote violated Elizondo’s Fourth Amendment right against

unreasonable seizure when he shot and killed Elizondo without adequate warning or a

reasonable basis. (Dkt. No. 141 at 1–2). Hinote moves for summary judgment, asserting

that he is entitled to qualified immunity.4 (Dkt. No. 139 at 6–8).

4 “[W]hether an officer is acting under color of state law does not depend on his on- or

off-duty status at the time of the alleged violation.” Tyson v. Sabine, 42 F.4th 508, 522 (5th Cir.

2022) (quoting Bustos v. Martini Club Inc., 599 F.3d 458, 464 (5th Cir. 2010). An off-duty officer

may assert a qualified immunity defense because, “in Texas, ‘a police officer’s “off-duty” status

is not a limitation upon the discharge of police authority in the presence of criminal activity.’”

Defrates v. Podany, 789 F.App’x 427, 431 n.2 (5th Cir. 2019) (quoting Laughlin v. Olszewski, 102 F.3d

190, 192 n.1 (5th Cir. 1996)).

A. FOURTH AMENDMENT VIOLATION

Plaintiffs argue that Hinote used excessive force when he shot and killed Elizondo.

(Dkt. No. 141 at 1–2). The Fourth Amendment guarantees the right to be free from

unreasonable searches and seizures. U.S. Const. amend. IV. A seizure can be

unreasonable if it involves excessive force. See Graham v. Connor, 490 U.S. 386, 394–95,

109 S.Ct. 1865, 1870–71, 104 L.Ed.2d 443 (1989). To prevail on an excessive-force claim

under the Fourth Amendment, a plaintiff must show that he suffered (1) an injury that

(2) resulted directly and only from an officer’s use of force that was “clearly excessive”

and (3) “objectively unreasonable.” Betts v. Brennan, 22 F.4th 577, 582 (5th Cir. 2022) (first

quoting Joseph ex rel. Est. of Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020); and then

citing Graham, 490 U.S. at 395–97, 109 S.Ct. at 1871–72). It is undisputed that Elizondo

suffered an injury. (See Dkt. No. 139-1 at 1–8); (Dkt. No. 141-1). Thus, the Court must

assess whether Hinote’s use of force was “clearly excessive” and “objectively

unreasonable.”

1. Clearly Excessive

Three factors inform whether a use of force was excessive in the Fourth

Amendment context: (1) the severity of the crime committed; (2) whether the suspect

posed an immediate threat to the safety of officers or others; and (3) whether the suspect

was resisting arrest or attempting to evade arrest by flight. See Graham, 490 U.S. at 396,

109 S.Ct. at 1872. Excessive-force claims are “evaluated for objective reasonableness

based on the information the officers had when the conduct occurred.” Saucier v. Katz,

533 U.S. 194, 207, 121 S.Ct. 2151, 2159, 150 L.Ed.2d 272 (2001). This calculus must include

“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.” Graham, 490 U.S. at 396–97,

109 S.Ct. at 1872; see also Plumhoff v. Rickard, 572 U.S. 765, 775, 134 S.Ct. 2012, 2020, 188

L.Ed.2d 1056 (2014).

Plaintiffs contend that all three factors support a finding that Hinote used

excessive force. (Dkt. No. 141 at 9). They argue that (1) the crime’s severity was low

because Elizondo was committing a nonviolent burglary; (2) Elizondo posed no

immediate threat to Hinote or others; and (3) Elizondo was not resisting arrest but

complying with Hinote’s command, despite not knowing he was an officer. (Id.).

The Court disagrees. In particular, the second factor—whether Elizondo posed an

immediate threat to Hinote—favors a finding that Hinote acted reasonably.

a. Severity of the Crime Committed

Plaintiffs are correct that automobile burglary is not an inherently violent crime.

See, e.g., Tennessee v. Garner, 471 U.S. 1, 21, 105 S.Ct. 1694, 1706, 85 L.Ed.2d 1 (1985) (“The

FBI classifies burglary as a ‘property’ rather than a ‘violent’ crime.”). Even so, automobile

burglaries can, and often do, become violent when an offender is confronted. See, e.g.,

Lopez-Elias v. Reno, 209 F.3d 788, 792 (5th Cir. 2000) (reiterating that automobile burglaries

may be categorized as a crime of violence in the immigration context). At the time of the

incident here, Hinote did not know whether Elizondo was armed. This factor is neutral.

b. Immediate Threat to Safety

Turning to the second factor, Plaintiffs make two arguments as to why Hinote’s

belief that he was in imminent danger was unreasonable.

First, Plaintiffs attack the reasonableness of Hinote’s belief that the object in

Elizondo’s hand was a weapon. (Dkt. No. 141 at 12–14). They argue it was obvious

through the car’s window that Elizondo was just holding a flashlight. (Id. at 3, 5, 12–14).

The Court disagrees. A flashlight can be attached to a firearm or other weapon. See, e.g.,

Macias v. Watkins, 696 F.Supp.3d 283, 290–91 (S.D. Tex. 2023) (officer perceived an object

in suspect’s hand “to be a pistol with a gun mounted flashlight”), aff’d, No. 23-40580, 2024

WL 3427047 (5th Cir. July 16, 2024). And even assuming Hinote saw that the object was

a flashlight, that does not mean Hinote did not perceive it to be a possible weapon. See,

e.g., United States v. LeMoure, 474 F.3d 37, 45 (1st Cir. 2007) (flashlight was a dangerous

weapon); United States v. Couch, 59 F.3d 171 (6th Cir. 1995) (same); see also Thompson v.

Hammond City, No. 2:18-CV-10658, 2019 WL 7291060, at *9 (E.D. La. Dec. 30, 2019) (same),

aff’d, No. 20-30056, 2023 WL 155412 (5th Cir. Jan. 11, 2023); United States v. Frazier, No.

1:12-CR-01572, 2013 WL 499245, at *7 (D.N.M. Feb. 4, 2013) (same); Malden v. City of

Waukegan, 1:04-CV-0282, 2009 WL 2905594, at *4 (N.D. Ill. Sept. 10, 2009) (defendant was

armed with a dangerous weapon, a large flashlight); see also United States v. Daulton, 488

F.2d 524, 524–25 (5th Cir. 1973) (listing various everyday objects that courts have found

to be weapons under certain circumstances); Fall v. Esso Standard Oil Co., 297 F.2d 411, 414

(5th Cir. 1961) (“A useful tool may be a dangerous weapon.”); Green v. City of Mission,

No. 7:18-CV-00049, 2019 WL 3217033, at *23 (S.D. Tex. July 17, 2019) (“Courts have found

officers were justified in utilizing deadly force when they reasonably believed an object

could have been a deadly weapon, even if the object, in fact, did not pose a risk of harm.”),

aff’d sub nom. Green v. Lara, 811 F.App’x 888 (5th Cir. 2020).

Second, Plaintiffs question Hinote’s testimony that he believed Elizondo was

likely armed because, in his experience, “criminals doing illegal activities are armed in

Corpus [Christi].” (Dkt. No. 141 at 11); (Dkt. No. 141-3 at 53). Plaintiffs point to Hinote’s

lack of automobile-burglary experience and emphasize that this makes his assertion that

Elizondo was armed unreasonable. (Id. at 11–12). Whether Hinote expected Elizondo to

be armed, the facts supported Hinote’s reasonable belief that Elizondo was armed. In the

dark, from only a few feet away, Elizondo ran toward Hinote with an object in his hands

that could have been used as a weapon. (Dkt. No. 140-B-3 at 00:05–00:08). Under these

circumstances, Hinote’s perception that he was in immediate danger was reasonable.

In a similar case, the Fifth Circuit held that an officer acted reasonably when he

shot a suspect “charging almost directly toward him in the dark from less than a car’s

length away.” Guerra v. Bellino, 703 F.App’x 312, 317 (2017). There, the officer “was forced

to make a split-second decision based on [the suspect’s] conduct without knowledge of

his subjective intent.” Id. A determination “in hindsight that [the suspect] posed no

threat . . . is of no consequence to the analysis.” Id. So too here. Elizondo ran directly

toward Hinote from less than a car’s length away in the dark. (Dkt. No. 140-B-3 at 00:05–

00:08). Although Hinote did not know at the time whether Elizondo was armed, from

such a close distance, Elizondo could have used any heavy or sharp object as a weapon.

Hinote knew nothing about Elizondo’s intent when he ran directly at him, and Hinote

had less than three seconds to determine whether he was in danger. Although the

outcome is tragic, Hinote’s determination that he was in immediate danger was

reasonable.

c. Resisting or Evading Arrest

Finally, as to the third factor, Plaintiffs are correct that Elizondo was not

attempting to resist or evade arrest. Elizondo was unaware that he was dealing with law

enforcement, let alone that Hinote might try to detain him. It is also true that Elizondo

may have been complying with Hinote’s order to get out of the vehicle. But Elizondo’s

“cooperation prior to the point at which he charged at [Hinote] is immaterial” in

determining whether the officer used a reasonable amount of force. Guerra, 703 F.App’x

at 317. Elizondo may not have been evading arrest, but he was attempting to flee the

scene. Given that Elizondo was not under arrest, this factor is not squarely relevant; but

as applied to these facts, it does not weigh in favor of Elizondo.

* * *

Accordingly, under the Graham framework, the first and third factors do not

conclusively determine whether Hinote’s use of force was reasonable, but the second

factor clearly shows that it was.

2. Objectively Unreasonable

Apart from the Graham factors, Plaintiffs also argue that the amount of force that

Hinote used was unreasonable because Hinote failed to identify himself or provide a

warning before he shot Elizondo. (Dkt. No. 141 at 9–10). The Court disagrees.

Plaintiffs’ contention that officers must give a warning before firing on a suspect

comes from Tennessee v. Garner. In Garner, a police officer fatally shot an unarmed

individual fleeing from a burglary. 471 U.S. at 3–4, 105 S.Ct. at 1697–98. The Court found

that the officer “could not reasonably have believed that [the suspect]—young, slight, and

unarmed—posed any threat.” Id. at 21, 105 S.Ct. at 1706. The Court stated that “[a] police

officer may not seize an unarmed, nondangerous suspect by shooting him dead.” Id. at

11, 105 S.Ct. at 1701. And “where feasible, some warning [must] be[] given” even if the

suspect poses a threat of serious physical harm such that deadly force may be used. Id.

at 12, 105 S.Ct. 1701.

The Court does not agree that Garner’s warning requirement or its facts lead to a

conclusion that Hinote acted unreasonably. Garner is materially distinguishable from this

case. Most notably, in Garner, the suspect was running away from the officer, so the fact

that the suspect had committed a nonviolent offense, was unarmed, and was running

away from the officer led the Court to conclude that the officer did not have justification

to shoot. Id. at 3–5, S.Ct. at 1697–98. Here, Elizondo ran toward Hinote, which materially

changed the calculus about whether the “young, slight, and [possibly] unarmed”

individual posed any threat. See id. at 21, 105 S.Ct. at 1706. Garner is also clear that a

warning should be given “where feasible.” Id. at 11–12, 105 S.Ct. at 1701. The entire

interaction between Hinote announcing his presence and Elizondo running toward

Hinote took place in less than three seconds. (Dkt. No. 140-B-3 at 00:05–00:08). It was not

feasible for Hinote to see Elizondo running toward him, issue a warning, evaluate

Elizondo’s response, and then decide whether to fire his weapon. If Elizondo intended

to harm Hinote, he could have done so during the time it would have taken for Hinote to

warn that he was law enforcement. Hinote had less than three seconds to assess the

situation and act, leaving insufficient time for a warning. Therefore, Hinote did not

violate Garner’s warning requirement.

In sum, the video evidence demonstrates that Hinote’s use of force was neither

excessive nor unreasonable in light of the facts before Hinote at the time. Therefore, he

is entitled to qualified immunity because Plaintiffs failed to prove the first qualified-

immunity prong—i.e., that Hinote violated Elizondo’s Fourth Amendment rights.

B. CLEARLY ESTABLISHED LAW

The second prong of the qualified immunity inquiry is whether the officer violated

“clearly established” law. Brewer v. Hayne, 860 F.3d 819, 823 (5th Cir. 2017). “The ‘clearly

established’ prong is difficult to satisfy.” Cunningham v. Castloo, 983 F.3d 185, 191 (5th

Cir. 2020). A right is “clearly established” if it is “sufficiently clear that every reasonable

official would have understood that what he is doing violates that right.” Cope v. Cogdill,

3 F.4th 198, 204 (5th Cir. 2021) (quoting Mullenix v. Luna, 577 U.S. 7, 11, 136 S.Ct. 305, 308,

193 L.Ed.2d 255 (2015) (per curiam)). This standard is met only if “‘the state of the law at

the time of the incident provided fair warning to the defendants that their alleged

[conduct] was unconstitutional.’” Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016)

(alteration in original) (quoting Tolan, 572 U.S. at 656, 134 S.Ct. at 1866). Consequently,

to establish that a constitutional right was “clearly established,” a plaintiff must identify

precedent that “‘squarely govern[s]’ the specific facts at issue.” Bartlett, 981 F.3d at 337

(quoting Mullenix, 577 U.S. at 15, 136 S.Ct. at 310). Courts must ask “whether the violative

nature of particular conduct is clearly established.” Mullenix, 577 U.S. at 12, 136 S.Ct. at

308 (emphasis in original) (quoting Ashcroft, 563 U.S. at 742, 131 S.Ct. at 2084). This

constitutional question must be framed “‘with specificity and granularity.’” Cunningham,

983 F.3d at 193 (quoting Morrow v. Meachum, 917 F.3d 870, 874–75 (5th Cir. 2019)). In other

words, a plaintiff generally must “‘identify a case in which an officer acting under similar

circumstances was held to have violated the Constitution’ and explain ‘why the case

clearly proscribed the conduct of that individual officer.’” Cope, 3 F.4th at 205 (cleaned

up) (quoting Bartlett, 981 F.3d at 345). “While an exact case on point is not required,” the

specifics of the officers’ violation must be “‘beyond debate.’” Id. (quoting Baldwin v.

Dorsey, 964 F.3d 320, 326 (5th Cir. 2020)). Specifically, “‘the right’s contours [must be]

sufficiently definite that any reasonable official in the officer’s shoes would have

understood that he was violating it.’” Baker, 68 F.4th at 245–46 (cleaned up) (quoting

Plumhoff, 572 U.S. at 779, 134 S.Ct. at 2023). Broad, general propositions of law are not

enough. Cope, 3 F.4th at 205; Ashcroft, 563 U.S. at 742, 131 S.Ct. at 2084 (“We have

repeatedly told courts . . . not to define clearly established law at a high level of

generality.”). Put simply, “‘[T]he law must be so clearly established that—in the blink of

an eye, in the middle of a high-speed chase—every reasonable officer would know it

immediately.’” Martin v. Petty, 699 F.Supp.3d 547, 556 (S.D. Tex. 2023) (emphasis and

alternation in original) (quoting Morrow, 917 F.3d at 876).

Plaintiffs do not appear to argue that Hinote violated clearly established law.

Plaintiffs argue that the inquiries into whether Hinote violated the Fourth Amendment

and whether Hinote “clearly” violated the Fourth Amendment are essentially one and

the same, as both hinge on whether the force used was “clearly excessive.” (Dkt. No. 141

at 8) (citing Darden v. City of Fort Worth, 880 F.3d 722, 728 (5th Cir. 2018) (“Our precedents

recognize that inquiries regarding whether a use of force was ‘clearly excessive’ or

‘clearly unreasonable...are often intertwined,’ and we consider those questions

together.”)). Plaintiffs emphasize that courts often assess these factors together, treating

“clearly excessive” force as indicative of a “clearly unreasonable” use of force, thus

violating the Fourth Amendment. Plaintiffs assert that by alleging that Hinote’s use of

force was “clearly excessive,” they have inherently argued that Hinote “clearly” violated

the Fourth Amendment. (Id. at 8–14).

Because the Court finds Hinote’s use of force was not clearly excessive, the Court

finds that Hinote did not “clearly” violate the Fourth Amendment. And to the extent that

their arguments about Hinote’s failure to warn and his belief that Elizondo posed an

immediate threat were intended to be assertions that Hinote violated clearly established

law, the Court disagrees, as explained in its analysis above. See supra Section IV.A.

Hinote’s failure to warn did not violate Garner because it was not feasible for him to issue

a warning at the time the situation escalated. Id. at IV.A.2. And although officers may

not assume that an individual poses a threat just because he possesses a weapon, see, e.g.,

Cole v. Carson, 935 F.3d 444, 446–47 (5th Cir. 2019) (en banc) (qualified immunity denied

to officers who shot a suspect holding a gun but not threatening officers), the

reasonableness of Hinote’s belief that Elizondo posed an immediate threat was based on

Elizondo running straight toward Hinote in the dark with an object in his hand, not

merely the presence of a possible weapon. See id. at 1V.A.1.b. Therefore, Hinote did not

violate clearly established law.

V. CONCLUSION

Considering the above analysis, Defendant Donald Hinote’s Motion for Summary

Judgment, (Dkt. No. 139), is GRANTED. Because Hinote is entitled to qualified

immunity, Plaintiffs’ claims against him fail as a matter of law.

It is SO ORDERED.

Signed on December 7, 2024.

R J □

DREW B. TIPTON

UNITED STATES DISTRICT JUDGE

17