Tuttle v. Gallegos

Case: 25-20132 Document: 91-1 Page: 1 Date Filed: 06/29/2026

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

June 29, 2026

No. 25-20132 Lyle W. Cayce

____________ Clerk

Clifford F. Tuttle, Jr., as Representative of the Estate of

Dennis W. Tuttle, Deceased; Robert Tuttle; Ryan Tuttle;

Jo Ann Nicholas; John Nicholas,

Plaintiffs—Appellees,

versus

Felipe Gallegos,

Defendant—Appellant,

______________________________

Jo Ann Nicholas, individually and as an heir of the Estate of Rhogena

Nicholas; John Nicholas, as temporary administrator of the Estate

of Rhogena Nicholas,

Plaintiffs—Appellees,

versus

Felipe Gallegos,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC Nos. 4:21-CV-270, 4:21-CV-272

______________________________

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Before Jones, Clement, and Richman, Circuit Judges.

Edith Brown Clement, Circuit Judge:

This is a high-profile qualified immunity case that involves a police

officer, Felipe Gallegos, shooting and killing Dennis Tuttle and Rhogena

Nicholas, after a squad of officers from the Houston Police Department

(“HPD”) executed a no-knock search warrant at their 7815 Harding Street

residence on January 28, 2019. Plaintiffs, the estates of Tuttle and Nicholas,

sued the officers and the City of Houston for several state and federal claims,

including a 42 U.S.C. § 1983 claim for excessive force under the Fourth

Amendment against Gallegos. Gallegos moved for summary judgment based

on qualified immunity, and the district court denied the motion because it

held that materially disputed facts precluded summary judgment. Gallegos

appealed, arguing there were no constitutional violations, and that, even if

there were, the law was not clearly established at the time of the incident.

The facts of this case are tragic. But tragic facts alone do not establish

liability under the Constitution. Because Gallegos did not violate Tuttle’s or

Nicholas’s constitutional rights, he is entitled to qualified immunity.

Accordingly, we REVERSE.

I

A

The following facts are undisputed.

The Search Warrant. This case’s genesis began on January 8, 2019,

when Patricia Garcia, Tuttle and Nicholas’s neighbor, repeatedly called 911

and falsely claimed that her daughter was doing drugs inside Tuttle and

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Nicholas’s house. Garcia also claimed there were guns inside the house, 1 so

HPD Officers Richard Morales and Nichole Blankenship-Reeves went to

investigate the scene outside the house. Neither officer observed any criminal

activity, or anyone entering or exiting the home. Blankenship-Reeves relayed

a note about the house to Lieutenant Marsha Todd in the Narcotics Division.

Todd then passed the tip to Squad 15 Officer Gerald Goines.

The falsehoods did not end with Garcia. To secure a no-knock warrant

to search the house, Goines falsely claimed in an affidavit that, on January 27,

2019, a confidential informant purchased heroin and observed a firearm at

the house. He also falsely claimed that fellow Squad 15 Officer Stephen

Bryant observed the drug purchase. With the search warrant in hand, Goines

and his Squad 15 supervisors, Sergeants Clemente Reyna and Thomas Wood,

reviewed the warrant and the tactical execution plan. Once Wood approved

the plan, he joined Squad 15 Officers Frank Medina and Gallegos on a tactical

“drive-by” of the house. Goines later led the pre-raid briefing with the

officers who would later help execute the search warrant. He described the

property and communicated to the officers that they should expect a female

resident, a male resident known to carry a gun, and an aggressive dog.

The Raid. After the briefing, eighteen officers were dispatched to the

house to execute the search warrant. The “entry team” consisted of Squad

15 Officers Medina, Bryant, Gallegos, Goines, Cedell Lovings, Manuel

Salazar, Oscar Pardo, Eric Sepolio, and Nadeem Ashraf, as well as Sergeants

Reyna and Wood. Six other HPD Officers—Morales, Blankenship-Reeves,

Joseph Arechiga, Samuel Garza, Valeriano Rios, and Yvette Ortiz—assisted

_____________________

1

Garcia pleaded guilty to one count of false information and hoaxes for making

these false reports and was sentenced to forty months of imprisonment. Her sentence was

affirmed by this court. See United States v. Garcia, No. 21-20309, 2022 WL 1014146 (5th

Cir. Apr. 5, 2022) (per curiam).

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with “perimeter security.” While Morales, Blankenship-Reeves, Rios, Ortiz,

and Garza wore body-worn cameras (“BWC”), they failed to activate them

before the raid, in violation of HPD policy. They instead activated their

BWC at different times during and after the raid.

On arrival, the entry team organized into a “stack” and breached the

front door while announcing themselves as HPD officers. Medina, the first

to enter the house, broke left after entering through the front door. According

to Medina, he saw Nicholas standing to his left and told her to put her hands

on her face and get down. Nicholas did not comply, and she continued to yell

and “flail” her hands. Medina then heard a gunshot to his right. He also saw

and shot an “angry” dog. Moments later, Medina was shot in the shoulder

and fell back against a couch. There, Medina first saw Tuttle behind a wall in

the dining room area. Medina then fell unconscious. Bullet fragments

consistent with a .223-caliber gun were later found in Medina’s wound.

Lovings, the second officer to enter the house, broke right. He saw a

dog running toward him and then saw a “muzzle flash.” 2 He fired his M6

.223-caliber rifle at the dog “several” times. He then saw another muzzle

flash from the dining room area, where he saw Tuttle standing with a gun.

Tuttle and Lovings exchanged fire. Tuttle shot Lovings in the neck with a

.357-caliber revolver gun, leaving Lovings paralyzed from the neck down.

Lovings was unsure whether any of the bullets he fired struck Tuttle, but he

observed Tuttle “flinch” and hide back behind a wall. Lovings, who lay

paralyzed on the floor, saw Tuttle attempt to take his gun.

Salazar and Pardo were the third and fourth officers to enter the

house. When Salazar stepped through the door, he saw Lovings shoot at the

dog. He also saw Tuttle fire three or four shots toward Medina from behind

_____________________

2

A muzzle flash is a glimpse of light that accompanies a gunshot.

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a wall, and heard Medina exclaim that he was “hit.” Salazar fired his

Springfield 191 .45-caliber handgun at Tuttle around ten times. Pardo, the

last of the two to enter, only made it a few steps inside before he heard

someone yell “dog” and the firing of multiple gunshots. Pardo heard Medina

say he was “hit” and saw him lying on the couch. Pardo was then pushed out

of the house with Salazar. At this point, only Medina and Lovings remained

inside the house. Both of them had sustained gunshot wounds.

The following facts are disputed. Three versions are at play.

1

According to the City, Squad 15 Officers, and Robert Gonzales,

Gallegos was outside the house—to the right of the front porch—during the

above events. From that position, he heard several gunshots and Medina yell

that he was “hit.” He observed Salazar and Pardo “fall backwards off the

front porch” and saw Lovings drop in the threshold of the doorway. Gallegos

then acquired a visual of the inside, observing Medina unconscious on the

couch. Nicholas was standing over Medina, cursing and tugging at the gun

attached to Medina’s vest. Nicholas’s hands later tested positive for gunshot

residue. After seeing Nicholas tugging at Medina’s gun, Gallegos fired at

Nicholas with his M6 .223-caliber rifle between one and three times. At least

one of those bullets struck and killed her. Sepolio then went inside and helped

extract the wounded Medina.

After the fatal shot to Nicholas, Gallegos heard more gunshots inside

the house. Still located along the right side of the house, he stepped back from

the door and shot through the wall toward where he believed Tuttle was

positioned. Gallegos broke a window so he could see inside the house. But all

he saw was an empty bedroom. Gallegos then retreated to a tree and yelled

for someone to extract Lovings. Goines went toward the front door but was

struck in his face by a bullet or bullet fragments, so he, too, retreated.

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Afterward, Reyna approached the front door, and Gallegos saw “two hands

come out of the front door holding a revolver” pointed at Reyna. Tuttle and

Reyna exchanged fire, with Reyna using his .40-caliber Glock. Bullet

fragments from Tuttle’s gunshots struck Reyna’s face.

Gallegos saw Tuttle shoot at Reyna, so Gallegos shot Tuttle in his left

hand. Reyna retreated away from the house, and Tuttle retreated inside.

Gallegos moved from his position near the tree to gain a visual inside the

doorway. He saw Tuttle inside the house, leaning against the front door and

holding a gun to his chest with his right hand. Tuttle raised his gun toward

Gallegos, and Gallegos shot at him several times. Tuttle was struck at least

once in the shoulder and twice in the buttocks area. Tuttle fell to the ground,

out of Gallegos’s view. Pardo tried to retrieve Lovings, who was still lying

paralyzed inside the doorway. Pardo also saw Tuttle sitting on the floor near

Lovings with a gun in his hand, so he shot at Tuttle once and fell back to

Gallegos’s position.

Gallegos walked up the front porch stairs and saw Tuttle through the

doorway. Tuttle was in a seated position on the floor with a gun in his right

hand, resting on his thigh. Tuttle yelled at Gallegos, asking what he wanted

and stating there were “no drugs.” When Gallegos told Tuttle to stop

moving, Tuttle “looked directly at Gallegos” and “began to raise the

weapon.” Gallegos raised his own weapon, and Tuttle “flinched.” So,

Gallegos shot Tuttle one more time, fatally striking him in his upper back and

neck area. The full episode—from Squad 15’s initial entry into the house to

Gallegos’s final shot at Tuttle—lasted eighty seconds.

2

According to Plaintiffs, the story is different. Four problems, they say,

exist with the version offered by the City, Squad 15 Officers, and Gonzales.

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Problem 1: While Medina, Lovings, Goines, and Reyna each suffered

gunshot wounds during the raid, the evidence suggests that only Lovings was

shot by Tuttle. On the other hand, Medina, Goines, and Reyna’s injuries

were consistent with .223-caliber weapons, which only the officers carried.

Problem 2: Gallegos shot Nicholas after Medina was extracted from the

house, so Gallegos could not have seen Nicholas standing over Medina.

Plaintiffs rely on BWC video, which shows Squad 15 Officers exiting a white

van and moving toward the house. About seventeen seconds after their exit,

the video captures a loud noise. A series of gunshots ring out ten seconds

later. According to Plaintiffs, these shots were mostly fired by Salazar and

Lovings, and, about two seconds later, Sepolio and Medina can be seen

running from the direction of the house toward Squad 15’s white van. The

video then shows a flash of light in the front of the house. According to

Plaintiffs, the video also portrays Medina and Sepolio behind a van and an

unidentified officer—who they say is Gallegos—to the far left of the house.

Five seconds later, several more gunshots are heard. Plaintiffs assert that

these shots were likely fired by Salazar and Lovings. Plaintiffs also claim that,

at this point, Gallegos moved toward the house and engaged Nicholas.

Problem 3: Gallegos could not have shot Nicholas if she was standing

over Medina. Nicholas had been shot once on her right thigh and once on the

right side of her torso. According to Dr. Michael Maloney, Plaintiffs’ scene

reconstructionist expert, if Nicholas was standing over Medina while Medina

was on the couch, Gallegos could not have shot Nicholas on her right side

because only her left side was exposed to Gallegos.

Problem 4: Tuttle’s injuries would have prevented him from holding

or raising his weapon at Gallegos before Gallegos shot him the final two times.

Maloney determined that Tuttle was shot a total of nine times, and the first

seven shots inflicted wounds to “both” of Tuttle’s “arms and hands.”

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These wounds, according to Maloney, would have rendered Tuttle

“incapable of holding a weapon.” So, when Gallegos shot Tuttle the final

two times, Tuttle could not have raised or pointed his gun at Gallegos.

3

The third version of these events comes from Maloney, Plaintiffs’

own expert. According to Maloney, Gallegos shot Nicholas “after Medina

[was] shot and collapse[d] on the couch.” His version, unlike Plaintiffs’

version, concluded that Medina was inside the house when Nicholas was

shot. So, Plaintiffs advance a theory—with respect to Medina’s location—

that differs from their own expert. Maloney’s investigation further revealed

that, from Gallegos’s shooting position, he could not have seen Nicholas.

Even still, Maloney opines that Gallegos shot Nicholas through the front

door where Tuttle was standing, and the bullet was “destabilized by the

doorframe,” grazed Tuttle’s forearm, and ultimately killed Nicholas. This

conclusion was corroborated in part by the discovery of Tuttle’s and

Nicholas’s DNA on a bullet recovered from the couch inside the house.

B

In suing the City of Houston, the Squad 15 Officers, and Gonzales,

Plaintiffs asserted state law wrongful death and survival claims, and § 1983

claims flowing from unlawful search and seizure due to (1) lack of probable

cause arising from obtaining the search warrant and (2) excessive force

arising from the raid. Several claims have been dismissed. 3 Besides Goines,

all remaining Defendants moved for summary judgment or judgment on the

_____________________

3

On January 6, 2025, the district court dismissed all of Plaintiffs’ remaining claims

against Sepolio, Salazar, Wood, Pardo, Medina, Reyna, Lovings, and Ashraf.

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pleadings on all remaining claims against them. Relevant to this appeal, the

district court denied Gallegos’s motion for summary judgment. 4

Gallegos timely appealed.

II

Our review implicates multiple standards “corresponding to qualified

immunity, summary judgment, [and] interlocutory review of [a] qualified

immunity denial[].” Joseph v. Bartlett, 981 F.3d 319, 328 (5th Cir. 2020).

Since the interplay of these standards “gets tricky,” we take each in turn. Id.

A

The qualified-immunity doctrine shields public officials from suit for

damages under § 1983 unless their conduct violates a clearly established

constitutional right. Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir.

2003). On a theoretical level, qualified immunity seeks to “balance two

competing societal interests: ‘the need to hold public officials accountable

when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties

reasonably.’” Joseph, 981 F.3d at 328 (quoting Pearson v. Callahan, 555 U.S.

223, 231 (2009)). In practice, qualified immunity adjusts “the nature of the

summary-judgment burden, how and when the burden shifts, and what it

_____________________

4

The district court also granted in part Gonzales’s motion for judgment on the

pleadings, granted Gonzales’s motion for summary judgment, granted in part Bryant’s

motions for summary judgment, and granted the City’s motions for summary judgment.

Plaintiffs’ remaining claims were: (1) § 1983 excessive force claims against Gallegos, as well

as derivative wrongful death and survival claims; (2) § 1983 failure to intervene claims

against Bryant based on lack of probable cause for the search warrant, as well as a derivative

survival claim; and (3) § 1983 excessive force and lack of probable cause claims against

Goines, as well as state law wrongful death and survival claims.

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takes to satisfy the burden.” Id. at 329. In determining whether a defendant

is entitled to qualified immunity, courts must ask: “(1) was a statutory or

constitutional right violated on the facts alleged; and (2) did the defendant’s

actions violate clearly established statutory or constitutional rights of which

a reasonable person would have known.” Tucker v. City of Shreveport, 998

F.3d 165, 172 (5th Cir. 2021). These steps may be evaluated in any order, and

defendants are entitled to qualified immunity if the plaintiff fails to show

either one. Pearson, 555 U.S. at 242. In these cases, the plaintiff bears the

burden. See Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc).

B

At this stage, the burden shifting changes, too. Typically, under the

summary judgment standard, the party moving for summary judgment must

initially show “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).

“The movant satisfies this burden by showing that a reasonable jury could

not find for the nonmovant, based on the burdens that would apply at trial.”

Joseph, 981 F.3d at 329 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

252 (1986)). To overcome the plaintiff’s case, the defendant must show “that

the record cannot support a win for the plaintiff—either because the plaintiff

has a failure of proof on an essential element of its claim or because the

defendant has insurmountable proof on its affirmative defense to that claim.”

Id. The defendant can achieve this by introducing undisputed evidence or by

“pointing out . . . an absence of evidence to support the [plaintiff’s] case.”

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the defendant succeeds,

then “the burden shifts [back] to the plaintiff to demonstrate that there is a

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genuine issue of material fact and that the evidence favoring the plaintiff

permits a jury verdict in the plaintiff’s favor.” Joseph, 981 F.3d at 329.

Qualified immunity modifies that typical burden-shifting framework.

Valderas v. City of Lubbock, 937 F.3d 384, 389 (5th Cir. 2019) (per curiam).

When a public official makes “a good-faith assertion of qualified immunity,”

the burden shifts back to the “plaintiff to show that the defense is not

available.” Orr v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016) (cleaned up).

“To negate a defense of qualified immunity and avoid summary judgment,

the plaintiff need not present ‘absolute proof,’ but must offer more than

‘mere allegations.’” Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir.

2009) (quoting Reese v. Anderson, 926 F.2d 494, 499 (5th Cir. 1991)). “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,” which is the “same” as “if the plaintiff did not face qualified

immunity.” Joseph, 981 F.3d at 330. Thus, “the plaintiff’s version of those

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

C

If an official unsuccessfully moves for summary judgment based on

qualified immunity, the denial of qualified immunity, “to the extent that it

turns on an issue of law, falls within the ambit of a final decision” under the

collateral-order doctrine “notwithstanding the absence of a final judgment.”

Wertenbroch v. Hardeman, --- F.4th ----, 2026 WL 1583938, at *2 (5th Cir.

2026) (publication forthcoming) (cleaned up). Thus, we review the denial de

novo. Maldonado v. Rodriguez, 932 F.3d 388, 390 (5th Cir. 2019) (citation

omitted). Yet our jurisdiction is limited: We may not “review a district

court’s determination that a genuine factual dispute exists,” but we “may

review de novo the materiality of disputed facts to the qualified immunity

determination.” Terry v. Hubert, 609 F.3d 757, 761 (5th Cir. 2010) (first and

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third emphases added). At this point, “all facts in evidence are viewed in the

light most favorable to the non-movants.” Maldonado, 932 F.3d at 390. That

said, “[w]hen opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury could believe

it, a court should not adopt that version of the facts for purposes of ruling on

a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

III

Four issues exist on appeal.

A

The first issue is whether we have jurisdiction to review fact disputes.

Plaintiffs argue that we lack jurisdiction under the collateral-order

doctrine to review certain fact disputes, including the video that allegedly

provides evidence that Medina was not inside the house when Gallegos shot

Nicholas. Gallegos disagrees, arguing that we have jurisdiction under Scott v.

Harris, which provides “an exception” to our “general inability to review

the existence of fact disputes” when the video blatantly contradicts

Plaintiffs’ version. Poole v. City of Shreveport, 13 F.4th 420, 424 (5th Cir.

2021). Gallegos spills much ink explaining Scott’s application and force here.

Plaintiffs, by contrast, never mention Scott at all.

While we are generally limited to determining whether a fact dispute

is material, Terry, 609 F.3d at 761, we may assess the genuineness of evidence,

such as the video, to evaluate whether Plaintiffs’ story is “blatantly

contradicted” and “utterly discredited” by this record, Scott, 550 U.S. at

380–81. With our jurisdiction secure, we next review the genuineness of the

video and the materiality of the fact disputes identified by the district court.

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B

The second issue is whether the district court erred in concluding that

the video and Gallegos’s inconsistent statements created a genuine issue of

material fact about Medina’s location when Nicholas was shot.

Tucked within this inquiry are two sub-issues: Whether the video

presents a genuine fact dispute and whether Gallegos’s inconsistent

testimony about when he broke the window presents a material fact dispute.

1

Two legal principles guide our analysis to determine whether the

district court’s two identified fact disputes are both genuine and material.

First, a dispute is “genuine” only if a reasonable jury could return a

verdict for the nonmoving party based on the record. As a basic matter, we

review summary judgment de novo, applying the same standards as the

district court. Mason v. Lafayette City-Parish Consol. Gov’t, 806 F.3d 268, 274

(5th Cir. 2015). Again, summary judgment must be awarded “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). “A

dispute is genuine if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Westfall v. Luna, 903 F.3d 534, 546 (5th

Cir. 2018) (per curiam) (cleaned up). The “substantive law will identify

which facts are material” and facts are “material” only if they “might affect

the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248.

Second, when reviewing a denial of qualified immunity, we may assess

whether the district court correctly characterized the record as containing a

genuine dispute. Once again, we cannot question the district court’s

assessment of “whether there is enough evidence in the record for a jury to

conclude that certain facts are true.” Cole v. Carson, 935 F.3d 444, 452 (5th

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Cir. 2019) (en banc) (quoting Trent v. Wade, 776 F.3d 368, 376 (5th Cir.

2015)). So, we only review “whether the factual disputes identified by the

district court are material to the denial of qualified immunity—that is,

whether the factual disputes viewed in favor of the plaintiff make out a

violation of clearly established law.” Poole, 13 F.4th at 423 (citing Amador v.

Vasquez, 961 F.3d 721, 726 (5th Cir. 2020)). But we may bypass that rule and

assess “the facts in the light depicted by the videotape” and reject Plaintiffs’

factual version when it is “blatantly contradicted by the record.” Scott, 550

U.S. at 380–81 (emphasis added); see also Curran v. Aleshire, 800 F.3d 656,

663–64 (5th Cir. 2015) (recognizing Scott as an exception to the rule).

2

BWC Video. At summary judgment, Plaintiffs provided video that

depicted an unidentified officer standing away from the house while Medina

and Sepolio were running out. Three features purportedly indicate that

officer is Gallegos: (1) the officer appears to be wearing a short sleeve shirt,

which Gallegos wore during the raid; (2) the officer appears to have a skin

tone and tattoos similar to Gallegos; and (3) the Texas Rangers Report placed

Gallegos at the location of the unidentified officer in the video. Gallegos

submitted an affidavit disputing that he is that officer. The district court

swiftly concluded that Plaintiffs presented evidence that Medina was not

inside the house when Nicholas was shot.

Not so.

For starters, the video does not identify the officer outside the house,

let alone reasonably suggest that it was Gallegos. While the video shows

someone wearing a short sleeve shirt and standing on the same side of the

house as Gallegos before the shooting, it does not reveal any distinguishing

characteristics, like the sleeve tattoo on Gallegos’s right arm or other

identifying features that would enable a reasonable jury to conclude that this

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officer was Gallegos. If anything, the video suggests that this officer has no

tattoos at all. At bottom, Plaintiffs offer no distinguishing basis to conclude

the unidentified officer is Gallegos—as opposed to, say, Bryant or Goines,

who Plaintiffs concede also wore “short sleeves” that day. More to the point,

Bryant carried a tool called a “moby,” and was responsible for breaking down

the door, then moving out of the way. This placed him in the same general

area as the unidentified officer.

Nor does the record support Plaintiffs’ identification theory. Even if

the video itself did not blatantly contradict Plaintiffs’ story, Maloney’s expert

testimony establishes that Medina was inside the house when Gallegos shot

Nicholas. 5 The Texas Rangers Report also concluded that Medina was inside

the house. The Report depicted Gallegos moving from his initial position left

(west) of the front door to the right (east) side of the front door shortly after

the officers entered. After Tuttle shot Medina, “Gallegos yelled for someone

to extract Medina and Gallegos moved up to a position on the east side of the

front door.” From that position, the Texas Rangers opined, Gallegos

observed Nicholas near Medina and shot her.

The record as a whole blatantly contradicts Plaintiffs’ version of

events to the extent that Medina was outside the house when Nicholas was

shot. At most, the video shows an officer whose appearance is equally

consistent with Bryant as Gallegos. Because the video does not identify

Gallegos as the officer, and the remaining evidence does not permit a

reasonable jury to make this inference, Plaintiffs’ theory cannot preclude

summary judgment. While we must draw all reasonable inferences in their

favor, those inferences must derive from evidence and not speculation.

_____________________

5

In fact, Maloney concluded that it was Gallegos—not Tuttle—who shot Medina.

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For these reasons, we reject Plaintiffs’ version of events to the extent

their story relies on the video to establish that Medina was outside the house.

3

Inconsistent Statements. Plaintiffs also point to inconsistencies in

Gallegos’s own statements that supposedly relate to Medina’s location

outside the house at the time Gallegos shot Nicholas. For example, Gallegos

initially communicated to the HPD’s Internal Affairs Division (“IAD”)

that he broke the window before he shot Nicholas. But in the video, according

to the district court, Medina is seen exiting the house “well before” the

sound of glass breaking is heard. Gallegos later testified under oath that he

broke the window after he shot Nicholas. The district court concluded that

this dispute created a genuine issue of material fact.

Not quite.

This inconsistency does not undermine the video and expert

testimony that Medina was inside the house when Nicholas was shot. True,

Gallegos told IAD that he broke the window before shooting Nicholas before

later testifying that he broke the window after doing so. This discrepancy may

bear on Gallegos’s credibility as a witness, but such issues cannot defeat

summary judgment alone unless they concern material facts that “affect the

outcome of the suit under the governing law.” Anderson, 477 U.S. at 248.

Even if accepting Gallegos’s initial statement as true, no reasonable

jury could infer from it that—in light of the rest of the record, including the

video and expert testimony—Medina was outside when Gallegos shot

Nicholas. Plaintiffs’ theory that Gallegos’s initial statement permits a

reasonable inference that Medina was outside when Nicholas was shot is

“blatantly contradicted by the record.” Scott, 550 U.S. at 380–81. The video

does not show that Medina was outside the house when Gallegos shot

Nicholas. At most, it indicates that Medina was outside before the sound of

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glass breaking is heard. Since the video does not establish when Gallegos shot

Nicholas relative to Medina’s exit, Gallegos’s initial statement does not

materially undermine that Medina was inside when Gallegos shot Nicholas.

All in all, the video and expert testimony blatantly contradict

Plaintiffs’ story that Medina was outside the house when Gallegos shot

Nicholas under Scott, and Gallegos’s inconsistent testimony about the

window does not materially undermine that fact. Thus, the district court

erred in concluding that these two fact disputes were genuine and material.

We now proceed under the assumption that Medina was inside the

house when Gallegos shot Nicholas.

C

The third issue is whether the district court erred in denying

Gallegos’s motion for summary judgment based on qualified immunity as to

Nicholas’s claims.

To answer that question, we must review the third fact dispute

identified by the district court: Whether Nicholas was standing over Medina

and reaching for Medina’s gun on the couch. Maloney’s investigation

determined that Nicholas “was not over the body of Officer Medina, as

reported by several officers, where he had collapsed on the couch.” Rather,

Nicholas “was physically removed by at least [eight] feet from his location.”

According to Maloney, were Nicholas over Medina “attempting to gain

control of his shotgun,” only “her left side would have been exposed to

Gallegos[’s] shooting position.” Thus, “she could not have been shot on her

right side.” This conclusion was based on the house layout, location of the

couch, and Gallegos’s position when he shot Nicholas. Gallegos told IAD

that Nicholas was “standing directly over and facing Officer Medina,”

yelling profanities at him, before she “appeared to be lunging or reaching

towards” Medina’s gun. He later testified that Nicholas “was grabbing with

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both hands [and] tugging at the shotgun.” The district court deemed this fact

dispute material because there is no constitutional violation where an officer

uses deadly force on a suspect that appears to be reaching for a weapon.

At this stage, we must construe this conflicting evidence in favor of

Plaintiffs. We therefore proceed under the following factual baseline for

purposes of our analysis: Medina, who had been shot, was inside the house

when Gallegos shot Nicholas. Further, Nicholas was not standing over

Medina and reaching for his weapon while Medina was lying injured on the

couch. In our analysis, we consider these facts together in their context—in

this case, an intense and dangerous firefight that left multiple officers injured.

1

Turning to the constitutional analysis, we must consider, viewing the

facts in the light most favorable to Nicholas, whether Gallegos’s actions

violated her Fourth Amendment rights. The Fourth Amendment fashions a

“right to be free from excessive force during a seizure,” and that right is

clearly established. Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir.

2012); U.S. Const. amend. IV. “To establish a claim of excessive force

under the Fourth Amendment,” plaintiffs must show an “(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.” Deville v.

Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam) (quoting Tarver v.

City of Edna, 410 F.3d 745, 751 (5th Cir. 2005)).

As to the third element, we consider three factors when determining

whether force was excessive or unreasonable: (1) “the severity of the crime

at issue,” (2) “whether the suspect poses an immediate threat to the safety

of the officers or others,” and (3) “whether [the suspect] is actively resisting

arrest or attempting to evade arrest by flight.” Id. at 167 (quoting Graham v.

Connor, 490 U.S. 386, 396 (1989)). “The test used to determine whether a

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use of force was reasonable under the Fourth Amendment ‘is not capable of

precise definition or mechanical application.’” Trammell v. Fruge, 868 F.3d

332, 340 (5th Cir. 2017) (quoting Graham, 490 U.S. at 396). Instead, it

“requires careful attention to the facts and circumstances of each particular

case” to assess “whether the officers’ actions are ‘objectively reasonable’ in

light of the facts and circumstances confronting them.” Graham, 490 U.S. at

396–97. To determine reasonableness, courts must assess actions from the

objective view “of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight.” Id. at 396. “The intent or motivation of the

officer is irrelevant; the question is whether a reasonable officer in the same

circumstances would have concluded that a threat existed justifying the

particular use of force.” Roque v. Harvel, 993 F.3d 325, 333 (5th Cir. 2021)

(citation omitted). At this stage, while all disputed facts are construed in the

light most favorable to nonmovants, courts “evaluating the reasonableness

of an officer’s use of force [must consider] how a reasonable officer would

have perceived those facts.” Tucker, 998 F.3d at 171–72 (citing Griggs v.

Brewer, 841 F.3d 308, 313–14 (5th Cir. 2016)). In other words, qualified

immunity requires courts to “consider[] only the facts that were knowable to

the defendant officers.” White v. Pauly, 580 U.S. 73, 77 (2017) (per curiam).

In the specific context of an officer employing deadly force, such force

is excessive and unreasonable “unless ‘the officer has probable cause to

believe that the suspect poses a threat of serious physical harm, either to the

officer or to others.’” Romero v. City of Grapevine, 888 F.3d 170, 176 (5th Cir.

2018) (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)). “An officer’s use

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

when the officer 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). “The threat-of-harm factor typically predominates the analysis

when deadly force has been deployed.” Harmon v. City of Arlington, 16 F.4th

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1159, 1163 (5th Cir. 2021). And when assessing the force used in a particular

case, our reasonableness determination must be holistically made in the

context of all the relevant circumstances, “including facts and events leading

up to the climactic moment.” Barnes v. Felix, 605 U.S. 73, 76 (2025). 6

Our “calculus of reasonableness must” necessarily allow “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. The Supreme Court cautions us to avoid “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) (per curiam).

2

As to excessive force, Gallegos argues that Plaintiffs’ theory that

Gallegos intentionally shot Nicholas by accidentally shooting through Tuttle

is “too implausible” to support summary judgment—and “impossible”

given the evidence, including Maloney’s bullet trajectory analysis. Gallegos

also contends that Plaintiffs’ theory is premised on his subjective intent.

Thus, Gallegos asserts, the shot that killed Nicholas was constitutional “to

the extent Gallegos was aiming at Mr. Tuttle, who was grazed by the bullet.”

Plaintiffs challenge that theory, arguing that Gallegos’s conduct was

“objectively unreasonable when he shot and killed an unarmed woman who

_____________________

6

When the district court rendered its decision, the Supreme Court had granted

certiorari in Barnes v. Felix, 91 F.4th 393 (5th Cir. 2024), cert. granted, 145 S. Ct. 118 (2024),

to examine the propriety of the moment-of-threat doctrine. In analyzing the threat Nicholas

posed to the officers, our law at the time required “that the threat be examined only at the

moment deadly force is used,” Crane v. City of Arlington, 50 F.4th 453, 466 (5th Cir. 2022),

and “[a]ny prior events leading up to the shooting . . . were simply not relevant,” Barnes,

605 U.S. at 78 (cleaned up). Thus, the moment-of-threat doctrine is no longer good law.

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was not threatening him.” Without citation to the record, they contend that

Gallegos forfeited his argument that, “regardless of his intent, his conduct

was still objectively reasonable.” Presumably, Plaintiffs’ assertion refers to

Gallegos’s argument that the fatal shot to Nicholas was constitutional to the

extent that an objectively reasonable officer was aiming at Tuttle. But they

do not give any airtime to this point. Even still, Plaintiffs argue that Nicholas

did not pose an immediate threat of physical harm because she “was on the

back of the couch and unarmed.” For these reasons, they argue, Gallegos

used objectively unreasonable force in shooting Nicholas inside the house.

Before analyzing the merits of this excessive-force claim, we need to

briefly engage with Plaintiffs’ secondary and tertiary arguments before us.

To begin, Gallegos did not forfeit his argument that shooting Nicholas

was objectively reasonable. Forfeiture aside, Gallegos cannot escape his

deposition testimony that he shot at Nicholas—not Tuttle. Of course, a

question remains as to whether Gallegos could see Nicholas through the fatal

funnel of the house. Yet we must only assess materially disputed facts, not

their genuineness, Terry, 609 F.3d at 761, unless the record blatantly

contradicts them. In any event, the visual question is not materially disputed.

Gallegos attempts to airlift his own testimony off the scene by arguing

that Plaintiffs’ theory is impossible and implausible. But no help is available.

It is quite possible—indeed plausible—that Gallegos intended to shoot

Nicholas, according to his deposition, and accidentally hit Tuttle. For

example, Maloney testified that Gallegos “fired and the bullet grazed

[Tuttle’s] arm and hit” Nicholas. Yet Maloney could not determine what

Gallegos “was aiming at” because “[t]hat would be beyond the scope of the

reconstruction.” When asked if there was evidence to contradict testimony

that Gallegos fired at Tuttle’s hand, Maloney concluded, “[t]hat would be .

. . a pretty bad shot because he hit the house instead of his hand.” Moreover,

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there is no evidence—other than the bullet that struck Nicholas also grazed

Tuttle—suggesting Gallegos intended to shoot Tuttle instead of Nicholas.

To cure that unforgiving evidence in the record, Gallegos next presses

that, under an objectively reasonable officer standard, his testimony is

irrelevant because it is subjective. Of course, the “intent or motivation of the

officer is irrelevant; the question is whether a reasonable officer in the same

circumstances would have concluded that a threat existed justifying the

particular use of force.” Roque, 993 F.3d at 333 (citation omitted). But we also

cannot ignore his testimony. By construing his admission that he intended to

shoot Nicholas, we are not swapping an objective test for a subjective one.

We are evaluating the fact, construed in Plaintiffs favor, that Gallegos

intended to shoot Nicholas, not the reasons why he pulled the trigger.

Gallegos’s testimony helps frame the proper question: Whether an

objectively reasonable officer in Gallegos’s shoes would have shot Nicholas.

3

Now, back to the analysis.

Nicholas was fatally shot, so Plaintiffs have clearly shown an injury

(element one). See Deville, 567 F.3d at 167. At issue, then, is whether

Gallegos’s shots were excessive (element two) and objectively unreasonable

(element three). See id. These inquiries are often “intertwined.” Poole, 691

F.3d at 628. Because Gallegos used deadly force, “the answer to these

intertwined questions depends on whether [Nicholas] posed a threat of

serious physical harm.” Roque, 993 F.3d at 333; see also Flores v. City of

Palacios, 381 F.3d 391, 399 (5th Cir. 2004) (when deadly force is involved, our

analysis is “constrained” to whether suspect posed a threat of harm).

First, context.

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We begin with the backdrop of the shooting. The situation inside the

house was tense, uncertain, and rapidly evolving given that multiple officers

were involved in an active gunfight and several had been shot inside the

house. The events that transpired also took place over the course of eighty

seconds. As we account for all relevant circumstances, including the “events

leading up to the climactic moment,” Barnes, 605 U.S. at 76, we reaffirm that

context matters—especially when that context is undeniably dangerous.

Let us start with what an objectively reasonable officer in Gallegos’s

shoes would have known here. He would have known that, once Bryant

breached the door using a moby, the first three officers entered the house,

and someone yelled, “Houston Police, search warrant, Houston police

search warrant!” Since Gallegos was in the back of the stack, he “could not

see anything while the door was breached and officers made entry.” 7

Gallegos later heard Medina yell out that he had been shot. Afterward,

Gallegos could hear a gunfire exchange inside the house but could not tell—

from his vantage outside the house—who was firing. He also watched Salazar

and Pardo “fall backwards off the front porch, off the landing.” The shooting

continued apace inside the house, and Gallegos observed Lovings “drop in

the doorway” or the “threshold of the doorway” of the house. At that point,

Gallegos testified that he could “finally see . . . into the residence,” and he

observed Medina on the couch.

In short, an officer in Gallegos’s position would have known that the

circumstances were “tense, uncertain, and rapidly evolving,” so we must

_____________________

7

For additional context, at that point, Medina noticed Nicholas standing to his left

and told her to put her hands on her face and get down. Nicholas did not comply, and she

continued to yell and “flail” her hands. Later, after Pardo made it a few steps inside the

house, he saw Nicholas standing over Medina, yelling. While these are undisputed facts,

the record does not establish they were known or perceived by Gallegos.

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permit “for the fact that police officers are often forced to make split-second

judgments.” Graham, 490 U.S. at 396–97.

Second, Nicholas’s actions.

While context is key, so is the suspect’s conduct. An objectively

reasonable officer in Gallegos’s shoes would have also perceived Nicholas’s

actions—when placed in this known dangerous situation—as posing a threat

of harm to the officers. Once Gallegos assumed a position on the right side of

the front door in which he could see Nicholas on the couch, we must assume

that Nicholas was not standing over Medina and reaching for his gun. Yet she

was on the same couch as Medina. According to Maloney, Nicholas was at

least eight feet away from Medina. Maloney also concluded that Nicholas was

shot twice “as she began to stand up from her seated position on the couch.”

An objectively reasonable officer would have been justified in making

a split-second use of deadly force against Nicholas given her actions under

these tense, uncertain, and rapidly evolving circumstances. Upon the initial

entry in the house, Gallegos heard officers announce their presence as HPD

executing a search warrant. And before shooting Nicholas, Gallegos observed

that Medina and Lovings had been shot during an active gunfight inside the

house and that Salazar and Pardo had rolled off the front porch. At that point,

Gallegos did not know who fired the shots because he was outside. But after

Lovings fell to the ground, he saw Medina and Nicholas on the couch.

Plaintiffs argue that Nicholas posed no threat because she was

unarmed and not standing over Medina. Even if Nicholas was not standing

over Medina and reaching for his gun, she was at least eight feet away from

him on the same couch and was starting to stand up from her seated position.

While those facts in isolation may suggest she was not a threat, as a whole

and viewed in this context, an objectively reasonable officer would have

perceived them differently. A reasonable officer under these dangerous

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circumstances would have been uncertain about Nicholas’s role in the

gunfire: Was she the shooter who injured Medina or Lovings, did she assist

the person who did, or was she an innocent bystander? A reasonable officer

would have perceived that Nicholas’s proximity to Medina, who was lying

injured on the couch, heightened the threat of harm because of her proximity

to Medina’s weapon. And that perception would have been further

strengthened as Nicholas defied orders and began to move off the couch.

After all, Nicholas was aware that HPD officers were there to execute a

warrant; the officers announced this information when they entered the

house. Under these circumstances, an officer in Gallegos’s shoes would have

been constitutionally justified in deploying deadly force against Nicholas.

Much authority exists in this circuit for the uncontroverted legal

proposition that no constitutional violation exists when an officer deploys

deadly force on an unarmed suspect who made movements perceived as

reaching for a weapon. See, e.g., Manis, 585 F.3d at 847 (officer entitled to

qualified immunity for shooting unarmed man who allegedly reached for

something under front seat of his vehicle); Ontiveros, 564 F.3d at 381, 385

(officer entitled to qualified immunity for shooting an unarmed man who

reached into a boot for what the officers believed could be a weapon); Reese

v. Anderson, 926 F.2d 494, 500–01 (5th Cir. 1991) (officer entitled to qualified

immunity for shooting an unarmed man who reached down twice in his car

after officers told him to raise his hands); Young v. City of Killeen, 775 F.2d

1349, 1351–53 (5th Cir. 1985) (officer entitled to qualified immunity for

shooting an unarmed man who allegedly reached toward car floorboard).

One may say, for example, that Nicholas standing up from the couch

pales in comparison to the more overt gestures involved in the cases above.

Perhaps so. In the abstract, her move may have been less overt. But her

actions must be placed in context. None of the above cases involved a

gunfight where multiple officers had been shot, including one who was wounded

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on the same couch and within eight feet of a suspect who was aware that officers

were executing a search warrant. This scene was far more tense, uncertain,

and rapidly evolving. It required a split-second judgment call—one that we,

respectfully, will not second-guess. See Ryburn, 565 U.S. at 477. Gallegos was

not required to be right in his assessment and response to the perceived

threat. He was required to be reasonable. See Manis, 585 F.3d at 843.

Thus, an objectively reasonable officer would have been justified in

deploying deadly force against Nicholas. Because there is no constitutional

violation, Gallegos is entitled to qualified immunity on this claim.

D

The fourth and final issue is whether the district court erred in

denying qualified immunity for Gallegos as to Tuttle’s claims.

While Tuttle suffered nine total gunshot wounds, Plaintiffs only

challenge the constitutionality of the final two shots—one to his buttocks

area and the fatal shot that struck his neck and upper back area. As to both

shots, Gallegos testified that Tuttle was holding a gun or raised his weapon.

Plaintiffs say that Tuttle’s seven gunshot wounds, including to both his hands

and arms, would have rendered him incapable of handling a gun. The district

court held that, with respect to the final two shots, summary judgment was

improper as to whether Gallegos violated Tuttle’s constitutional rights

because there is a material fact dispute regarding whether Tuttle’s hands and

arms were incapacitated such that he could not use a gun.

Given this conflict, we must construe the evidence in favor of

Plaintiffs and assume that Tuttle was incapable of holding a gun.

1

An officer’s use of “deadly force is not excessive, and thus no

constitutional violation occurs, when the officer reasonably believes that the

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suspect poses a threat of serious harm to the officer or to others.” Manis, 585

F.3d at 843. The Supreme Court also instructs that “if police officers are

justified in firing at a suspect in order to end a severe threat to public safety,

the officers need not stop shooting until the threat has ended.” Plumhoff v.

Rickard, 572 U.S. 765, 777 (2014). But that general rule does not apply if a

defendant “had initiated a second round of shots after an initial round had

clearly incapacitated” the plaintiff, or if the plaintiff “had clearly given

himself up.” Id. So, when assessing whether an officer’s use of force is

objectively reasonable, courts must assess “only the facts that were knowable

to the defendant officers.” White, 580 U.S. at 77 (emphasis added).

2

Gallegos argues that the final two shots were not objectively

unreasonable under the Fourth Amendment. For starters, Tuttle did not yell

“I surrender” or take any actions “indicating a willingness to give up the

fight.” His actions, according to Gallegos, also took place during a tense,

uncertain, and rapidly evolving scenario in which Gallegos saw that multiple

officers had been shot. He also argues that the fact issue identified by the

district court relating to Tuttle’s actual capacity was immaterial because it

does not address whether Gallegos knew that Tuttle was incapacitated.

Plaintiffs continue to press their incapacity theory, analogizing this

case to Mason v. Lafayette City-Parish Consolidated Government, where we

denied qualified immunity based on fact disputes about whether the plaintiff

was incapacitated and therefore could not pose a threat. In Mason, we held

that “a reasonable jury could conclude that [the plaintiff] lay incapacitated

on the ground and did not move in a threatening manner before [the officer]

fired the final two shots.” 806 F.3d at 277. Plaintiffs prop up Mason to argue

that fact issues similarly preclude summary judgment on this claim.

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3

Tuttle was fatally shot, so the first element is met. See Deville, 567 F.3d

at 167. So, our key inquiry is whether Gallegos’s shots were excessive and

objectively unreasonable. See id. Because these inquiries are “intertwined,”

Poole, 691 F.3d at 628, the answer will turn on whether Tuttle “posed a threat

of serious physical harm” to the officers, Roque, 993 F.3d at 333.

Even if Tuttle’s hands and arms were incapacitated such that he could

not use a gun, there is no evidence that Gallegos would have known that fact.

According to Plaintiffs, when Gallegos emerged from behind the tree, Tuttle

was inside the house and “had his back to the door and [dropped] to the floor.”

Lovings, who was on the floor, also allegedly told Gallegos that he “need[ed]

to take a head shot.” Gallegos yelled “shut the f*** up,” and then shot

Tuttle in the buttocks area. Maloney similarly characterized the facts: “With

his back to the door, and beginning to drop to the floor, [Tuttle] was shot in the

buttocks/thigh.”

For this reason, an objectively reasonable officer in Gallegos’s

position would not have known that Tuttle lacked the capacity to use a gun

because Tuttle was not facing him, so a reasonable officer could not have

reasonably perceived that Tuttle was no longer dangerous to the officers.

Moreover, after being shot in the buttocks area, Tuttle continued to

move his body. According to Maloney, “[o]nce on the floor,” Tuttle put “his

body weigh[t] on his upper body by his elbows” to “raise[] his upper body”

and was “fatally shot in the back of his head/neck.” These movements did

not reasonably suggest that Tuttle “had clearly given himself up.” Plumhoff,

572 U.S. at 777. On the contrary, the record indicates Tuttle was unwilling to

surrender his fight. While a reasonable officer “need not stop shooting until

the threat has ended,” nothing in the record suggests that Tuttle gave up. Id.

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Finally, before shooting Nicholas, Gallegos observed that Medina and

Lovings had been shot by someone inside the house. According to Plaintiffs,

Gallegos then retreated from the house and “circle[d] to [a] tree in front of

the door.” From that position, Plaintiffs press that “[i]n the next flurry of

shots from Gallegos, Reyna [was] hit with bullet fragments and Goines [was]

hit in the face.” The parties have different stories as to who shot Reyna and

Goines. Even so, as Goines approached the front door, Gallegos observed

that he was “struck by a round in his jaw and dropped to the ground.” He

next saw Reyna “attempt to go up to the front door to grab Officer Lovings,”

where Gallegos then saw “two hands come out of the front door holding a

revolver.” When Goines and Reyna suffered facial injuries, according to

Plaintiffs, Tuttle “had approached the front of the house.” Gallegos testified

that he saw Tuttle at the front door when Goines and Renna were shot.

A reasonable officer in Gallegos’s position would have indisputably

known that four officers—Medina, Lovings, Goines, and Reyna—had been

shot in the moments leading up to his final shots at Tuttle. While there are

disputes about who shot Medina, Goines, and Reyna, an objectively

reasonable officer would not have known the answer to that question under

these “tense, uncertain, and rapidly evolving” circumstances, which must

necessarily allow for “the fact that police officers are often forced to make

split-second judgments.” Graham, 490 U.S. at 396–97. In turn, we must not

second-guess Gallegos’s “assessment, made on the scene, of the danger

presented by a particular situation” involving Tuttle. Ryburn, 565 U.S. at 477.

At bottom, Gallegos’s decision to shoot Tuttle was objectively

reasonable based on the overall dangerous context, Tuttle’s placement away

from the door, and Tuttle’s continued movement after sustaining gunshot

wounds. “Ample precedent supports the reasonableness of using deadly

force against an active shooter.” Est. of Parker v. Miss. Dep’t of Pub. Safety,

140 F.4th 226, 240 (5th Cir. 2025); see also Harmon, 16 F.4th at 1163. While

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there may be a genuine issue as to whether Tuttle was incapacitated and

therefore incapable of using a gun when Gallegos shot him, see Mason, 806

F.3d at 277, the record establishes that Gallegos would not have been able to

know, White, 580 U.S. at 76, that fact because Tuttle’s back was to the door,

and so a reasonable officer could not have reasonably perceived that Tuttle

was no longer a dangerous threat to the officers, Tucker, 998 F.3d at 171–72.

The safety and comfort of our chambers invite a temptation to second-

guess police officers and to reimagine, with the benefit of hindsight, how an

officer should have responded here. We resist that temptation, as we must

not “allow the theoretical, sanitized world of our imagination to replace the

dangerous and complex world that policemen face every day.” Stroik v.

Ponseti, 35 F.3d 155, 158 (5th Cir. 1994). The Fourth Amendment’s excessive

force jurisprudence does not require police officers to diagnose a suspect’s

medical condition during an active gunfight in which officers had been shot.

Thus, an objectively reasonable officer would have been justified in

deploying deadly force against Tuttle. Because there is no constitutional

violation, Gallegos is entitled to qualified immunity on this claim.

IV

The events underlying the 7815 Harding Street raid are harrowing.

Lies were told. People were shot. Lives were taken. Yet while these events

are tragic, they do not establish liability under the Constitution. Gallegos

acted like an objectively reasonable officer during a tense, uncertain, and

rapidly evolving gunfight on January 28, 2019. We do not second-guess his

training and judgment, which required split-second decisions during this

shootout. For these reasons, we REVERSE the district court’s denial of

summary judgment and hold that Gallegos is entitled to qualified immunity.

30