Martinez v. Hinojosa

Case: 24-40535 Document: 82-1 Page: 1 Date Filed: 06/04/2026

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

No. 24-40535

FILED

June 4, 2026

____________

Lyle W. Cayce

Jorge R. Martinez, Clerk

Plaintiff—Appellant,

versus

Officer David Hinojosa; City of Laredo,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:20-CV-75

______________________________

Before Southwick, Higginson, and Wilson, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

This is a tragic case of mistaken identity. A police officer believed he

was targeting a gunman who had been firing on police from a residence.

Instead, he shot and badly wounded a man who had disarmed the actual

shooter and then emerged from the residence holding the weapon. The issue

here is whether that officer’s mistake led to a violation of the victim’s

constitutional rights. As lamentable as these events certainly were, we agree

with the district court that no constitutional violation occurred on the specific

facts of this case. The district court denied relief. We AFFIRM.

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No. 24-40535

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 5:42 a.m. on November 26, 2019, two officers of the

Laredo Police Department responded to a domestic disturbance at a

residence in their city. As the officers reached the scene, Cesar Terrazas

opened fire on them with an AR-15-style rifle, striking one officer in the leg.

After a brief gunfight with the officers, Terrazas broke into the home where

the plaintiff, Jorge Martinez, lived along with his mother and sister. Once

inside, Terrazas shot and wounded Mr. Martinez’s mother before Mr.

Martinez and his sister overpowered and disarmed Terrazas. Still inside the

home, Mr. Martinez removed the magazine from Terrazas’s rifle.

Officer Hinojosa arrived on the scene at 5:51 a.m., only seconds before

Terrazas entered Mr. Martinez’s home. At 5:52, Officer Hinojosa retrieved

a rifle from his vehicle and began walking toward the gunfire. 1 Unaware of

the suspect’s identity, description, or clothing, Officer Hinojosa stopped and

established a defensive position approximately 60 yards from Mr. Martinez’s

home.

Just before 5:56 a.m., Mr. Martinez exited the home completely naked

and carrying the confiscated weapon in his left hand. We found no

explanation in the record for why Mr. Martinez wore no clothes. Once

outside, he walked a few steps away from the home and shouted, “I am not

the shooter.” Officer Hinojosa — who would later state he did not hear Mr.

Martinez and perceived him as the suspect — immediately alerted his fellow

officers: “He’s naked,” and “[h]e’s got a 32.” Mr. Martinez then quickly

walked between two vehicles and into the street. There, he first turned 90

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1

As mentioned, Terrazas entered Mr. Martinez’s home shortly after Officer

Hinojosa arrived on the scene. The record is not clear as to when the shooting stopped or

to whom each shot can be attributed. The body camera footage captures occasional shots

being fired from the moment Officer Hinojosa arrived until Mr. Martinez was shot.

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degrees to his right — causing him to face away from Officer Hinojosa —

then turned completely around such that he was facing directly toward that

officer. That is when Officer Hinojosa shot him once in the abdomen. That

officer stated, in his post-incident statement, that he “fear[ed] for [his] safety

and the safety of other officers and the public in the area.” 2 Though he

suffered severe injuries, Mr. Martinez survived the shooting.

In May 2020, Mr. Martinez filed suit in the United States District

Court in Laredo, asserting claims under 42 U.S.C. § 1983. The complaint

alleged the three police officers used excessive force that night and the City

of Laredo had not properly trained them. 3 He filed an amended complaint in

September 2020, then a second amended complaint in February 2021. On

April 15, 2021, the district court dismissed all of Mr. Martinez’s claims, with

leave to amend. Mr. Martinez later filed a third, then a fourth, amended

complaint.

Defendants moved for judgment on the pleadings as to the City and

for summary judgment as to Officer Hinojosa, who asserted qualified

immunity. The district court granted the motion, holding that no

constitutional violation had occurred. As a result, the court held that Officer

Hinojosa was entitled to qualified immunity, and all municipal liability was

foreclosed. 4 Mr. Martinez timely appealed.

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2

Officer Hinojosa shot Mr. Martinez approximately 13 seconds after he exited the

home.

3

His original complaint included claims against two other City of Laredo police

officers and an “independent substantive due process claim” against Officer Hinojosa.

These claims were dismissed with prejudice and are not subject to our review.

4

In 1978, the Supreme Court held that a claim for municipal liability may be

brought under Section 1983. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978).

Importantly, “every Monell claim requires ‘an underlying constitutional violation.’” See

Hicks-Fields v. Harris County, 860 F.3d 803, 808 (5th Cir. 2017).

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DISCUSSION

We review de novo a district court’s grant of summary judgment and

apply the same standards as the district court. Curtis v. Anthony, 710 F.3d

587, 593 (5th Cir. 2013) (citation omitted). Summary judgment is proper “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.” FED. R. CIV. P.

56(a). Factual disputes are genuine “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party,” and they are material if

they “might affect the outcome of the suit under the governing law.”

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

factual allegations that are “blatantly contradicted by the record,” we “view

the facts and draw reasonable inferences ‘in the light most favorable to the

party opposing’” summary judgment. Scott v. Harris, 550 U.S. 372, 378, 380

(2007) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

I. Section 1983 & Qualified Immunity

“[Section] 1983 ‘is not itself a source of substantive rights,’ but

merely provides ‘a method for vindicating federal rights elsewhere

conferred.’” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (quoting Baker

v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Specifically, “Section 1983

enables persons who have been ‘depriv[ed] of any rights, privileges, or

immunities secured by the Constitution and laws’ of the United States by the

actions of a person or entity operating under color of state law to seek redress

from those state actors responsible for the deprivations.” Surratt v.

McClarin, 851 F.3d 389, 392 (5th Cir. 2017) (alteration in original) (quoting

42 U.S.C. § 1983). Qualified immunity, though, protects those government

officials from liability under Section 1983, “insofar as their conduct does not

violate clearly established statutory or constitutional rights.” Trammel v.

Fruge, 868 F.3d 332, 339 (5th Cir. 2017) (quoting Harlow v. Fitzgerald, 457

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U.S. 800, 818 (1982)). “If we determine that the alleged conduct did not

violate a constitutional right, our inquiry ceases because there is no

constitutional violation for which the government official would need

qualified immunity.” Lytle v. Bexar County, 560 F.3d 404, 410 (5th Cir.

2009) (citation omitted).

II. Constitutional Violation

An officer’s use of excessive force is an unreasonable seizure in

violation of the Fourth Amendment. See Graham, 490 U.S. at 394–95. To

establish “a Fourth Amendment excessive-force claim, a plaintiff must show

two things: (1) a seizure occurred; and (2) the force used was unreasonable.”

Estate of Parker v. Miss. Dep’t of Pub. Safety, 140 F.4th 226, 238 (5th Cir.

2025) (footnote omitted).

A. Seizure

A Fourth Amendment seizure occurs either when physical force is

used or through the seized person’s “voluntary submission to a show of

authority or the termination of freedom of movement” of that person. Torres

v. Madrid, 592 U.S. 306, 322 (2021). In either context, the government’s

means of affecting the seizure must be “intentionally applied.” Kennedy v.

City of Arlington, 165 F.4th 937, 943 (5th Cir. 2026).

The relevant intentional act here was the use of force against a person

who was mistakenly believed to be the one who had earlier been shooting at

other police officers. A seizure may occur even “when an unintended person

or thing is the object of the detention or taking.” Brower v. County of Inyo,

489 U.S. 593, 596 (1989). Such mistakes typically fall into two factual

scenarios. In one, a law enforcement officer fires at the actual suspect “but

misses, accidentally hitting a bystander.” Milstead v. Kibler, 243 F.3d 157, 163

(4th Cir. 2001), abrogated in part on other grounds by Pearson v. Callahan, 555

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U.S. 223 (2009). The Fourth Circuit concluded that “the innocent victim’s

injury or death is not a seizure that implicates the Fourth Amendment

because the means of the seizure were not deliberately applied to the victim.”

Id. at 163–64. Those are not our facts, and we express no opinion as to

whether that is the proper view.

The other scenario, the one that occurred here, is when an officer

“shoots . . . a person he believes to be the suspect and hits the intended target,

but in fact, the target was misidentified and turns out to be an innocent

victim.” Id. at 163. “This seizure of the innocent victim implicates the

Fourth Amendment, but it is not necessarily unreasonable and therefore in

violation of the Fourth Amendment.” Id. at 164.

The Fourth Circuit in Milstead relied on a Supreme Court precedent

that no unconstitutional seizure occurs when an officer’s mistake as to the

identity of the person was based on “sufficient probability, not certainty,” as

that “is the touch-stone of reasonableness under the Fourth Amendment.”

Id. (quoting Hill v. California, 401 U.S. 797, 804 (1971)). Though a seizure

has occurred, the seizure “is not necessarily unreasonable and therefore in

violation of the Fourth Amendment.” Id.

Notwithstanding the mistake of identity, Mr. Martinez was “the

object of” the application of force. See Brower, 489 U.S. at 596. That means

that a seizure occurred. We now must decide if the seizure, as unfortunate

as it was, was reasonable.

B. Reasonableness

The touch-stone for whether a constitutional violation occurred is

reasonableness. See County of Los Angeles v. Mendez, 581 U.S. 420, 427

(2017). “Determining whether the force used to effect a particular seizure is

‘reasonable’ under the Fourth Amendment requires a careful balancing of

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‘the nature and quality of the intrusion on the individual’s Fourth

Amendment interests’ against the countervailing governmental interests at

stake.” Graham, 490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8

(1985)). This test is not capable of mechanical application, id., but instead it

“requires analyzing the ‘totality of the circumstances,’” and “demands

‘careful attention to the facts and circumstances’ relating to the incident.”

Barnes v. Felix, 605 U.S. 73, 80 (2025) (first quoting Mendez, 581 U.S. at 427–

28; and then quoting Graham, 490 U.S. at 396).

“An officer’s use of force is unreasonable under the Fourth

Amendment if the plaintiff shows: ‘(1) injury, (2) which resulted directly and

only from a use of force that was clearly excessive, and (3) the excessiveness

of which was clearly unreasonable.’” Estate of Parker, 140 F.4th at 239

(quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)). Because

Officer Hinojosa used deadly force, “injury and causation are established,”

see McVae v. Perez, 120 F.4th 487, 492 (5th Cir. 2024), leaving only for our

determination a “single objective-reasonableness inquiry.” Bailey v. Ramos,

125 F.4th 667, 680 (5th Cir. 2025) (quoting Pena v. City of Rio Grande City,

879 F.3d 613, 619 (5th Cir. 2018)).

When endeavoring to balance competing Fourth Amendment

interests, we recognize that deadly force is the ultimate intrusion. Aguirre v.

City of San Antonio, 995 F.3d 395, 407 (5th Cir. 2021); see Garner, 471 U.S. at

9–10. As a result, when deadly force is involved, our inquiry is

“constrained.” Batyukova v. Doege, 994 F.3d 717, 725 (5th Cir. 2021)

(citation omitted). While we consider other factors, such as the severity of

the crime at issue and the suspect’s flight or active resistance to

apprehension, see Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020), they

are subordinate to our ultimate standard: “An officer’s use of deadly force is

not excessive, and thus no constitutional violation occurs, when the officer

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

officer or to others.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009).

“[A]n immediate threat to safety[] is generally the most important factor in

determining the objective reasonableness of an officer’s use of deadly force.”

Baker v. Coburn, 68 F.4th 240, 247 (5th Cir. 2023).

Along with this understanding of the task, we also consider 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 397. To that end, we evaluate reasonableness “from the perspective

of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight,” and caution ourselves against “second-guessing a police officer’s

assessment, made on the scene, of the danger presented by a particular

situation.” Ryburn v. Huff, 565 U.S. 469, 477 (2012) (citation omitted). After

all, “to be reasonable is not to be perfect.” Beuhler v. Dear, 27 F.4th 969, 981

(5th Cir. 2022) (quoting Heien v. North Carolina, 574 U.S. 54, 61–62 (2014)).

Mr. Martinez argues that summary judgment was improper because

the evidence demonstrates genuine disputes of material fact as to whether

Officer Hinojosa’s use of deadly force was objectively unreasonable. We first

address Officer Hinojosa’s perception of Mr. Martinez as an imminent

threat, then discuss the reasonableness of his use of force.

1. Mistaken Identity

In granting summary judgment, the district court accepted that

“Officer Hinojosa’s decision turned out to be a mistake, [but] there is no

Fourth Amendment violation because he believed in good faith that he and

his fellow officers faced imminent danger[. R]elying on that belief, he made a

reasonable mistake.”

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While Mr. Martinez was not Terrazas, or otherwise a threat to anyone,

he is not the principal focus of our inquiry. See Smith v. Lee, 73 F.4th 376,

385 (5th Cir. 2023). Rather, in keeping with our charge of avoiding such

retrospective determinations, we must consider whether Officer Hinojosa

reasonably believed Mr. Martinez was in fact the shooter. See id.; Ryburn,

565 U.S. at 477.

Mr. Martinez’s primary argument is that a fact question exists

regarding whether or not Officer Hinojosa heard Mr. Martinez shout that he

was “not the shooter.” In support, Mr. Martinez offers dashboard and body-

camera footage, as well as two testifying neighbors who were present the

night of the shooting. While the dashboard footage contains no audio, Mr.

Martinez alleges that even though the words are unclear, “you can hear the

plaintiff shouting on Officer Hinojosa’s Body Camera system.”

Additionally, two of Mr. Martinez’s neighbors — Hector Flores and Blanca

Hill — testified that they heard him shouting that he was not the shooter.

Martinez argues that because Flores “was further from Martinez than

Officer Hinojosa,” it is plausible that Mr. Martinez’s “declarations were

audible to Hinojosa.”

The district court held that Officer Hinojosa’s testimony that he could

not hear Mr. Martinez was uncontroverted. As to the video footage

specifically, the court stated:

There is no discernable audio of Plaintiff shouting “I’m not the

shooter.” There is some barely audible sound of someone’s

voice in the distance, but the words are inaudible on the audio

of the body camera footage. To the extent Plaintiff asserts that

this audio recording reflects what Officer Hinojosa could hear

at the time of the shooting, it does not support the conclusion

that [he] could clearly hear Plaintiff shouting ‘I’m not the

shooter’ before he fired.”

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Our listening to the body camera recording revealed that the sounds

on the audio are overlapping and indistinct. No shouted words can be

discerned. It is true that video evidence can prevent contrary testimony from

creating a fact issue about what appears on a video. Scott v. Harris, 550 U.S.

372, 378 (2007). What can be conclusive about a video concerns what

physically occurred. On the other hand, a video may not display exactly what

a person would have seen from the same location as the camera. One reason

is that a person may have poor eyesight. Another reason is the opposite, i.e.,

video can be blurry or otherwise of poor quality. That may not keep the video

from being factually definitive as to what occurred.

We have been directed to no precedent treating audio recordings as

definitive as to what a person would have heard from the same location as the

device that was recording audio. Similar to video, the recording, if it has

sufficient clarity, can be conclusive as to what words were said or sounds were

made. The recording cannot by itself be conclusive about what a specific

person in a particular location would have heard, as that depends on the

quality of the person’s hearing as well as the quality of the audio recording.

Indeed, some microphones may record words more clearly than a person

would hear; other microphones, less clearly. Some evidence would be

needed to address such factual issues before a recording could be said to

represent what a similarly-located person would have heard. Without more,

we cannot give the audio portion of the body camera recording in this case

any conclusive effect on what the officer heard.

Regardless of the recording’s inconclusiveness, the disputed fact is

whether Officer Hinojosa heard Mr. Martinez shouting that he was not the

shooter. A genuine factual dispute about what the officer heard could arise

from the testimony of two of Mr. Martinez’s neighbors, one of them further

away from Mr. Martinez than Officer Hinojosa, who said they heard the

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shouted assertion. We agree that such testimony does raise a genuine factual

dispute, but we also must consider whether the dispute is material.

The district court held, in effect, that the dispute was not material:

“Even if Officer Hinojosa could clearly hear and understand what Plaintiff

was saying, it would not be unreasonable for him to conclude that the shooter

may have been lying to evade the police and continue his shooting spree.”

Does that possibility, when considering what was objectively reasonable for

an officer to do even if hearing the yelled assertion, mean that Officer

Hinojosa’s shooting Mr. Martinez was “clearly unreasonable”? Estate of

Parker, 140 F.4th at 239 (citation omitted).

Useful in answering that question is that mistaken beliefs have arisen

in other contexts. Other precedents concern an officer’s mistaken belief that

a suspect was reaching for a weapon. In each case, the constitutionality of an

officer’s use of deadly force is justified so long as the officer had a reasonable

belief that the suspect was reaching for a weapon. 5 Whether the suspect

actually had a weapon is irrelevant, as we are only concerned with what the

officer knew or reasonably believed at the time. Kingsley, 576 U.S. at 397.

In one precedent, we concluded that an officer’s use of deadly force

was justified because the suspect, Manis, could not contradict the officer’s

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5

See, e.g., Winder v. Gallardo, 118 F.4th 638, 646 (5th Cir. 2024) (“[B]inding

caselaw demonstrates that what matters is whether [the officer] could reasonably believe that

[the suspect] was reaching for or had a gun.”); Salazar-Limon v. City of Houston, 826 F.3d

272, 275, 279 (5th Cir. 2016) (holding that, despite the discovery that suspect was unarmed,

the officer reasonably perceived the suspect to be reaching for a weapon); Batyukova, 994

F.3d at 717 (same); Manis, 585 F.3d at 845 (same); Argueta v. Jardi, 86 F.4th 1084, 1092

(5th Cir. 2023) (holding that whether the officer could see the weapon was immaterial); see

also Poole, 13 F.4th at 425–26 (reversing summary judgment on qualified immunity where

the officer could see the suspect was “empty-handed” and otherwise “visibly unarmed”).

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“testimony that he shot Manis because he believed Manis had retrieved a

weapon.” Manis, 585 F.3d at 845. There, “the only fact material to whether

[the officer] was justified in using deadly force” was whether or not the

suspect “reached under the seat of his vehicle and then moved as if he had

obtained the object he sought” — a gun. Id. at 844. Thus, the “eventual

discovery” that the threat was not real, i.e., there was no gun under his seat,

did not negate the officer’s reasonable belief that the suspect had one. Id. at

842, 844.

The same conclusion can be drawn here, except for the fact that Mr.

Martinez was indisputably armed, and the eventual discovery was of the fact

that he was not a threat. In both situations, the officer has a mistaken belief

as to the facts establishing the existence of probable cause to use deadly force.

See Saucier v. Katz, 533 U.S. 194, 206 (2001). In that context, when an officer

acts on a reasonable belief, what fact the officer is wrong about generally will

not matter and does not matter here.

Officer Hinojosa was forced to make a split-second judgment, and we

must not scrutinize that decision with the benefit of our later knowledge. See

Ryburn, 565 U.S. at 477. “To a reasonable officer under the circumstances,”

Mr. Martinez did not appear to be an innocent victim nor a “fleeing non-

dangerous suspect in a non-violent crime.” See Pipkins v. City of Hoover, 134

F.4th 1163, 1171 (11th Cir. 2025) (quoting Powell v. Snook, 25 F.4th 912, 923

(11th Cir. 2022)). As the district court found:

[He] was in a dark neighborhood with a shooter on the

loose and did what he reasonably thought was best to keep him

and his fellow officers safe. The fact that a naked man exited

the residence, while holding a rifle in his hand and yelling

something that Officer Hinojosa could not clearly hear, does

not mean that Officer Hinojosa should have concluded that it

was not Terrazas. [His] decision to shoot a person who[m] he

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saw emerging from a house with an automatic rifle in the

context of that night’s events was sufficiently reasonable to

justify the use of deadly force.

To that analysis, we add only that even if the officer did hear the claim

that Mr. Martinez was not the shooter, it was reasonable for him not to accept

it. We conclude that this mistake was objectively reasonable.

2. Use of Deadly Force

Officer Hinojosa’s misidentification of Mr. Martinez was reasonable.

The question remains whether the use of deadly force was reasonable.

Answering that question requires us to apply these factors identified by the

Supreme Court: “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.”

Graham, 490 U.S. at 396. Obviously, whether force is excessive depends very

much on the facts presented to the officer.

First, the severity of the crime to which Officer Hinojosa was

responding was the shooting of another officer and an exchange of gunfire

with the police. That is a severe crime.

Second, we consider whether the facts support that Officer Hinojosa

reasonably believed the person he saw with a gun posed a serious threat of

harm to others. Officer Hinojosa arrived on the scene at 5:51 a.m. He knew

the following at that point: (1) officers were engaged in an active shootout

with the suspect, and (2) an officer had been shot. Officer Hinojosa armed

himself and established a defensive position. Within a few seconds, a person

with an assault rifle came out of the residence where the shooting had been

occurring and walked into the street. These facts, as they appeared to Officer

Hinojosa, easily meet our standard for using deadly force. From this officer’s

perspective, he was using deadly force against an active shooter. Estate of

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Parker, 140 F.4th at 240 (listing cases). While the shooting had recently

ceased prior to Officer Hinojosa’s use of force, the officer could not know

whether that was simply a brief interlude before more shooting occurred.

Finally, the factor of whether the suspect was resisting or attempting

to flee is less clear than the other factors. The issue, though, is whether

Officer Hinojosa reasonably believed the person he saw with a gun was

positioning himself to recommence his shootout with officers. It was

reasonable for the officer to believe the person he saw with an assault rifle

was not surrendering and subjecting himself to arrest.

“Even when a suspect is armed, a warning must be given, when

feasible, before the use of deadly force.” Poole, 13 F.4th 420, 425 (5th Cir.

2021). In such a case, a warning is a “critical component of risk assessment

and de-escalation.” Cole v. Carson, 935 F.3d 444, 453 (5th Cir. 2019) (en

banc). Mr. Martinez contends that Officer Hinojosa had time to issue a

warning and relies on the fact that Hinojosa gave a clear post-shooting

warning.

First, was a warning feasible? As mentioned before, only 13 seconds

elapsed after Mr. Martinez exited the home and until Officer Hinojosa shot

him. In that time, Mr. Martinez was acting erratically while holding a

dangerous weapon, and he was shot less than three seconds after entering the

street. We have found that Officer Hinojosa’s perception of Mr. Martinez as

a violent suspect was reasonable, and Mr. Martinez turned towards Officer

Hinojosa immediately before being shot. These facts distinguish the case

from another “standoff” precedent in which it was disputed whether the

victim was turning towards officers when they fired the first shot at him. See,

e.g., Cole, 935 F.3d at 453–55.

Second, it would have been reasonable for Officer Hinojosa, arriving

after other officers have been engaged in an exchange of gunfire, to assume

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either that “proper procedures,” such as a warning, “ha[d] already been

followed,” or that the actual shooter’s exchange of gunfire with the police

was sufficient to warn him that he would be shot. See White v. Pauly, 580 U.S.

73, 80 (2017). With limited knowledge of the situation, Officer Hinojosa

reacted swiftly to protect himself and those around him. As a result, we

conclude that Officer Hinojosa’s not issuing a warning was reasonable.

Lastly, Mr. Martinez raises other arguments purporting to create a

fact question as to whether or not Officer Hinojosa reasonably perceived him

as an imminent threat. Mr. Martinez contends he never raised the weapon

toward Hinojosa or made any other movement that could be interpreted as

presenting an imminent threat, and that generally Officer Hinojosa should

have understood his hand above his head as a gesture of surrender.

In considering this argument, it is important that “we have never

required officers to wait until a defendant turns towards them, with weapon

in hand, before applying deadly force to ensure” their own safety or the safety

of others. Salazar-Limon, 826 F.3d at 279 n.6. Officer Hinojosa’s testimony,

as well as the video footage, supports that Mr. Martinez’s erratic movements

caused the rifle to move around as he walked to the street. Moreover, when

he turned in the direction of the officers, Officer Hinojosa believed that the

“firearm could have come up immediately.” Despite Mr. Martinez’s

subjective attempt to surrender, we must take the facts from the perspective

of the reasonable officer. As stated by the district court: “Hinojosa’s

decision to shoot [Mr. Martinez], while a mistake, was reasonable and not

excessive given the totality of the circumstances before him.”

We conclude that Officer Hinojosa did not violate Mr. Martinez’s

constitutional rights and that the district court did not err in granting

summary judgment. Because we conclude that Mr. Martinez’s

constitutional rights were not violated, the City of Laredo cannot be liable:

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“[M]unicipal liability under Section 1983 requires proof of . . . a violation of

constitutional rights.” Zarnow v. City of Wichita Falls, 614 F.3d 161, 166 (5th

Cir. 2010) (quoting Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.

2001)). Dismissal of the claims against the City was proper.

AFFIRMED.

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