Roque v. Harvel

Case: 20-50277 Document: 00515804751 Page: 1 Date Filed: 04/01/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

April 1, 2021

No. 20-50277

Lyle W. Cayce

Clerk

Albina Roque, individually, as heir at law to the Estate of Jason Roque,

and on behalf of all wrongful death beneficiaries; Vincente Roque,

individually, as heir at law to the Estate of Jason Roque, and on behalf of all

wrongful death beneficiaries,

Plaintiffs—Appellees,

versus

James Harvel, in his individual capacity,

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:17-CV-932

Before King, Elrod, and Willett, Circuit Judges.

Don R. Willett, Circuit Judge:

This qualified-immunity case involves the police shooting and killing

of Jason Roque, a suicidal man experiencing a mental-health crisis. Roque’s

parents sued James Harvel, the officer who killed their son, alleging a

violation of their son’s Fourth Amendment right against the use of excessive

force.

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The Fourth Amendment turns on reasonableness. And “[t]he

calculus of reasonableness must embody allowance for the fact that police

officers are often forced to make split-second judgments—in circumstances

that are tense, uncertain, and rapidly evolving—about the amount of force

that is necessary in a particular situation.” 1 This allowance is particularly

understandable when police officers encounter suicidal suspects. At some

point, however, and even in the most difficult circumstances, the

reasonableness rope ends. Here, the district court decided a jury should

determine whether it ended after Officer Harvel’s first shot. We agree and

therefore affirm the district court’s denial of summary judgment.

I

The Austin Police Department received two related 911 calls on the

morning of May 2, 2017. Jason Roque made the first call to report a shirtless,

Hispanic man “just going crazy” with a black pistol—not pointing it at

anybody but “all up in the air and whatnot.” Jason was speaking about

himself but didn’t disclose that fact to the 911 operator. Jason’s mother,

Albina, then called 911. While crying and pleading with Jason, she told the

operator that her son wanted to kill himself. Both Jason and Albina called to

report the incident from their home address.

During the 911 calls, Officer Harvel was on patrol in northeast Austin,

where the Roques live. Harvel learned of the 911 calls through his radio and

the dispatch report. Dispatch first described the calls as “Gun Urgent” but

changed the reported problem to “Attempted Suicide.” Dispatch also noted

that Jason’s only recent involvement with law enforcement was an allegation

of criminal mischief the year before.

1

Graham v. Connor, 490 U.S. 386, 396–97 (1989).

2

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Multiple officers, including Harvel, responded to the situation. Harvel

and the other officers positioned themselves at the end of Jason’s street about

75 yards from Jason’s house. Jason was pacing the sidewalk in front of his

home with a black gun in his waistband. He was repeatedly saying, “Shoot

me!” Albina was standing on the porch imploring Jason not to kill himself.

The officers could hear—but not see—Albina from where they were

standing. One officer yelled, “Put your hands up!” Jason put his arms out to

the side and continued walking on the sidewalk. He yelled at the officers to

shoot and kill him.

Jason then pulled out the gun, which was later determined to be a BB

gun. Jason pointed the gun at his head then turned away from the officers and

said, “I’ll f---ing kill myself!” An officer then yelled (for the first time): “Put

the gun down!”

The parties dispute what happened next. Video evidence (taken from

two different home-surveillance systems) 2 shows that, after the officer’s

order to put his gun down, Jason turned around to face the officers with the

gun pointed in the air. All of the officers claim, however, that they didn’t

know where the gun was and didn’t see Jason point it in their general

direction. Nonetheless, in the split second between the officer’s command to

put the gun down and Jason’s turning his body toward the officers with his

arm and the gun in the air, Harvel shot Jason with a semi-automatic rifle. The

video shows Jason immediately double over, drop the gun, and stumble from

the sidewalk toward the street (away from his mother and the officers). The

video also shows the black gun hitting the white sidewalk in broad daylight.

2

The first video is from the position of the officers, although about one house

closer to where Jason was located. https://www.ca5.uscourts.gov/opinions/pub/20/20-

50277-1.mp4. The second video is from the home of the Roques’ neighbor.

https://www.ca5.uscourts.gov/opinions/pub/20/20-50277-2.mp4.

3

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Harvel claims that he didn’t see the gun fall and considered Jason to be a

continuing threat to his mother.

About two seconds after the first shot, while Jason was stumbling into

the street, Harvel fired another shot that missed Jason. Jason continued

floundering into the street, and two seconds later, Harvel took a final and fatal

shot. The police officers then approached Jason’s body and unsuccessfully

attempted CPR. Paramedics took Jason to the emergency room; he died soon

after. Harvel maintains that he took each shot because he thought Jason was

a threat to his mother’s life and safety.

Jason’s parents, Albina and Vincente Roque, sued Officer Harvel as

well as the City of Austin under 42 U.S.C. § 1983 for violations of Jason’s

Fourth Amendment rights. Both Harvel and the City moved for summary

judgment. The City argued that it could not be liable under § 1983 because

the Roques failed to show any official policy or custom that caused the alleged

constitutional violation. 3 The district court agreed with the City and granted

its motion. Harvel raised the defense of qualified immunity. The district

court granted Harvel’s motion as to the first shot but denied the motion as to

the second and third shots. Harvel timely filed this interlocutory appeal.

II

Qualified immunity “attempts to balance two competing societal

interests: ‘the need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from harassment,

3

See Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 694 (1978) (“We

conclude, therefore, that a local government may not be sued under § 1983 for an injury

inflicted solely by its employees or agents. Instead, it is when execution of a government’s

policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly

be said to represent official policy, inflicts the injury that the government as an entity is

responsible under § 1983.”).

4

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distraction, and liability when they perform their duties reasonably.’” 4 The

defense of qualified immunity therefore protects public officials “sued in

their individual capacities ‘from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” 5 A court’s decision on

qualified immunity involves two questions: (1) whether the defendant

violated the plaintiff’s constitutional or statutory rights; and (2) whether

those rights were clearly established at the time of the violation “such that

the officer was on notice of the unlawfulness of his or her conduct.” 6

The unique nature and purpose of qualified immunity affects both our

jurisdiction and the lens with which we review a district court’s denial of the

defense. We first discuss the changes to our jurisdiction and then the scope

of our review.

When a district court denies summary judgment, that order “is

generally not a final decision within the meaning of [28 U.S.C] § 1291 and is

thus generally not immediately appealable.” 7 But an exception, the

collateral-order doctrine, applies when the summary-judgment motion is

based on qualified immunity. 8 That’s because immunity is collateral to the

merits. 9 And an immunity determination cannot be “effectively reviewed on

4 Joseph v. Bartlett, 981 F.3d 319, 328 (2020) (quoting Pearson v. Callahan, 555 U.S.

223, 231 (2009)).

5

Joseph, 981 F.3d at 328 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

6

Cole v. Carson, 935 F.3d 444, 451 (5th Cir. 2019), as revised (Aug. 21, 2019), cert.

denied sub nom. Hunter v. Cole, 141 S. Ct. 111 (2020).

7

Plumhoff v. Rickard, 572 U.S. 765, 771 (2014).

8

Id. at 771–72.

9

Id. at 772.

5

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appeal from a final judgment because by that time the immunity from

standing trial will have been irretrievably lost.” 10 Accordingly, a district

court’s immunity decision is akin to a final decision, and a defendant who

loses on the qualified-immunity defense can bring an interlocutory appeal. 11

Qualified immunity also affects the scope of our review. The

summary-judgment question is whether the movant has shown “that there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” 12 When the district court answers this

question, it inherently makes two separate findings regarding whether there

are genuine fact disputes and whether those fact disputes are material to the

outcome of the case. 13 Typically, we review the district court’s analysis de

novo, asking the same questions the district court does regarding genuineness

and materiality. 14 But on interlocutory appeal following the denial of qualified

immunity, the scope of our review is limited to “whether the factual disputes

that the district court identified are material to the application of qualified

immunity.” 15 Our review therefore involves only “whether a given course of

conduct would be objectively unreasonable in light of clearly established

law.” 16 We do not review the district court’s determination that there are

genuine fact disputes. 17

10

Id.

11

See generally Mitchell v. Forsyth, 472 U.S. 511, 536 (1985).

12

Fed. R. Civ. P. 56(a).

13

Colston v. Barnhart, 146 F.3d 282, 284 (5th Cir. 1998).

14

Id.; see also Samples v. Vadzemnieks, 900 F.3d 655, 659–60 (5th Cir. 2018).

15

Samples, 900 F.3d at 660.

16

Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc).

17

See Melton v Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc) (“[W]e lack

jurisdiction to review the genuineness of a fact issue but have jurisdiction insofar as the

6

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Plaintiffs argue that we lack jurisdiction over this entire appeal

because the district court found that genuine fact disputes precluded

summary judgment. As explained above, however, “[w]e do have

jurisdiction, but only to the extent that the appeal concerns the purely legal

question whether the defendants are entitled to qualified immunity on the

facts that the district court found sufficiently supported in the summary

judgment record.” 18

III

Although qualified immunity raises two distinct questions (whether

the conduct was unconstitutional and whether the unconstitutionality was

clearly established), we have discretion “to decline entirely to address the”

first question. 19 We can “skip straight to the second question concerning

clearly established law.” 20 But we have repeatedly emphasized that there is

value in addressing both questions “to develop robust case law on the scope

of constitutional rights.” 21 In that vein, we first address Plaintiffs’ Fourth

interlocutory appeal challenges the materiality of [the] factual issues.”) (quoting Allen v.

Cisneros, 815 F.3d 239, 244 (5th Cir. 2016)).

18

Kinney, 367 F.3d at 347 (5th Cir. 2004) (en banc).

19

Morgan v. Swanson, 659 F.3d 359, 384 (5th Cir. 2011).

20

Id.

21

Joseph v. Bartlett, 981 F.3d 319, 331 n.40 (5th Cir. 2020) (citing Morgan, 659 F.3d

at 395).

7

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Amendment claim and then discuss the clearly established law at the time of

the shooting.

A

The Fourth Amendment’s right to be free from unreasonable seizures

governs excessive-force claims. 22 To prove an excessive-force claim, “a

plaintiff must show (1) an injury, (2) which resulted directly and only from

the use of force that was clearly excessive, and (3) the excessiveness of which

was clearly unreasonable.” 23

Excessive-force claims are “necessarily fact-intensive,” so we must

“examine the totality of the circumstances to determine whether an officer’s

actions were objectively unreasonable.” 24 “The intent or motivation of the

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

circumstances would have concluded that a threat existed justifying the

particular use of force.” 25 We only consider the facts “knowable to the

defendant officers” at the time the officers used force, and we must be

“careful to avoid ‘second-guessing a police officer’s assessment, made on the

scene, of the danger presented by a particular situation.’” 26

22

Garza v. Briones, 943 F.3d 740, 744–45 (5th Cir. 2019); Graham v. Connor, 490

U.S. 386, 395 (1989) (“[A]ll claims that law enforcement officers have used excessive

force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a

free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’

standard, rather than under a ‘substantive due process’ approach.”).

23

Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) (quoting Ontiveros v. City of

Rosenberg, 564 F.3d 379, 382 (5th Cir.2009)).

24

Garza, 943 F.3d at 745 (cleaned up).

25

Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (citing Graham, 490 U.S. at

396–97); see also Kingsley v. Hendrickson, 576 U.S. 389, 391–92 (2015).

26

Garza, 943 F.3d at 745 (first quoting White v. Pauly, 137 S. Ct. 548, 550 (2017)

(per curiam) then quoting Ryburn v. Huff, 565 U.S. 469, 477 (2012)).

8

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When an officer uses deadly force, that force is considered excessive

and unreasonable “unless the officer has probable cause to believe that the

suspect poses a threat of serious physical harm, either to the officer or to

others.” 27 Further, “an exercise of force that is reasonable at one moment

can become unreasonable in the next if the justification for the use of force

has ceased.” 28

The parties do not dispute the district court’s conclusion that, even

though all of the officers claim they didn’t see Jason point the gun in their

direction, Harvel was justified in taking the first shot. The video evidence

(from all angles) shows that right before the first shot, and after the officers

shouted at Jason to put down his gun, Jason pointed the gun in the officers’

general direction. It’s also undisputed that Jason Roque suffered an injury

(element one of his excessive-force claim).

At issue, then, is whether Officer Harvel’s second and third shots

were excessive (element two) and objectively unreasonable (element three).

These questions are “often intertwined.” 29 Because Officer Harvel used

deadly force, the answer to these intertwined questions depends on whether

Jason posed a threat of serious physical harm after the first shot struck him.

Two factual disputes concerning the placement of the gun and Jason’s

movements prevent us from answering these questions.

First, the gun. Harvel asserts that, after the first shot, he perceived

Jason to be a continuing threat to his mother because he didn’t see Jason drop

his gun. Plaintiffs argue, with video and expert evidence, that a reasonable

27

Romero v. City of Grapevine, 888 F.3d 170, 176 (5th Cir. 2018) (quoting Tennessee

v. Garner, 471 U.S. 1, 11 (1985)).

28

Lytle v. Bexar Cnty., 560 F.3d 404, 413 (5th Cir. 2009).

29

Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012).

9

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officer should have seen Jason drop his black gun on the white sidewalk in

broad daylight. Second, Jason’s movements. Harvel claims that Jason was

“still moving and ambulatory” after the first shot. Plaintiffs counter that the

video shows Jason double over and stumble into the street. Even though

Jason was still moving, Plaintiffs assert that these movements show a

wounded man moving away from everyone at the scene.

Both fact disputes go to whether a reasonable officer would have

known that Jason was incapacitated after the first shot. If Jason was

incapacitated, he no longer posed a threat. And if he no longer posed a threat,

Harvel’s second and third shots were excessive and unreasonable. Whether

Jason was incapacitated is therefore not only disputed but material to

Plaintiffs’ Fourth Amendment claim.

Harvel’s only arguments to the contrary center around whether

Plaintiffs’ evidence is sufficient to dispute his subjective version of events.

These arguments fail. On interlocutory appeal, “we cannot challenge the

district court’s assessments regarding the sufficiency of the evidence—that

is, the question whether there is enough evidence in the record for a jury to

conclude that certain facts are true.” 30 So we accept the district court’s

evidence-sufficiency (or genuineness) determination. And we agree with its

determination that material fact disputes preclude summary judgment on the

Fourth Amendment question.

30

Cole v. Carson, 935 F.3d 444, 452 (5th Cir. 2019), as revised (Aug. 21, 2019), cert.

denied sub nom. Hunter v. Cole, 141 S. Ct. 111 (2020) (quoting Trent v. Wade, 776 F.3d 368,

376 (5th Cir. 2015)); accord Colston v. Barnhart, 146 F.3d 282, 284 (5th Cir. 1998)

(“Johnson makes clear that an appellate court may not review a district court’s

determination that the issues of fact in question are genuine.”).

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B

Even if genuine disputes of material fact exist concerning the Fourth

Amendment violation, Harvel is entitled to qualified immunity unless his

“actions were objectively unreasonable in light of clearly established law at

the time of the” shooting. 31 The critical question when ascertaining the

clearly established law is “whether the state of the law at the time of an

incident provided fair warning to the defendants that their alleged conduct

was unconstitutional.” 32 Put differently, “[a] clearly established right is one

that is ‘sufficiently clear that every reasonable official would have understood

that what he is doing violates that right.’” 33

A plaintiff must “identify a case—usually, a body of relevant case

law—in which an officer acting under similar circumstances was held to have

violated the Constitution.” 34 While a plaintiff need not find a case “directly

on point, . . . existing precedent must have placed the statutory or

constitutional question beyond debate.” 35 The Supreme Court has also

explained that the clearly established law “should not be defined ‘at a high

level of generality.’” 36 It “must be ‘particularized’ to the facts of the case.” 37

But, “in an obvious case,” general standards “can ‘clearly establish’ the

31

Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012) (quoting Brumfield v.

Hollins, 551 F.3d 322, 326 (5th Cir. 2008)).

32

Tolan v. Cotton, 572 U.S. 650, 656 (2014) (cleaned up).

33

Mullenix v. Luna, 577 U.S. 7, 11–12 (2015) (quoting Reichle v. Howards, 566 U.S.

658, 663 (2012)).

34

Joseph v. Bartlett, 981 F.3d 319, 330 (5th Cir. 2020) (cleaned up).

35

Mullenix, 577 U.S. at 12 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

36

White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting al–Kidd, 563 U.S. at 742).

37

White, 137 S. Ct. at 552 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

11

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answer, even without a body of relevant case law.” 38 As the Supreme Court

has summarized, qualified “immunity protects ‘all but the plainly

incompetent or those who knowingly violate the law.’” 39

Finally, “drawing inferences in favor of the nonmovant” is especially

important when determining whether there is clearly established law. 40

That’s because the Supreme Court has “instructed that courts should define

the ‘clearly established’ right at issue on the basis of the ‘specific context of

the case.’” 41 So “courts must take care not to define a case’s ‘context’ in a

manner that imports genuinely disputed factual propositions.” 42 In other

words, a court assessing the clearly established law cannot “resolve[]

disputed issues in favor of the moving party.” 43 And it must “properly

credit[]” Plaintiffs’ evidence. 44

The district court implied that this was an obvious case under

Tennessee v. Garner. In Garner, the Supreme Court held that “[a] police

officer may not seize an unarmed, nondangerous suspect by shooting him

dead.” 45 Although the officer in Garner shot and killed a fleeing burglary

38

Brosseau v. Haugen, 543 U.S. 194, 199 (2004); see also Taylor v. Riojas, 141 S. Ct.

52, 53–54 (2020).

39

White, 137 S. Ct. at 551 (quoting Mullenix, 577 U.S. at 12).

40

Tolan v. Cotton, 572 U.S. 650, 657 (2014).

41

Id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).

42

Id.

43

Id.; see also Good v. Curtis, 601 F.3d 393, 398 (5th Cir. 2010) (“[A] defendant

challenging the denial of a motion for summary judgment on the basis of qualified immunity

must be prepared to concede the best view of the facts to the plaintiff.”).

44

Tolan, 572 U.S. at 660.

45

471 U.S. 1, 11–12 (1985) (holding unconstitutional a Tennessee statute that

authorized the use of deadly force against fleeing felony suspects).

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suspect who was never armed, 46 we have applied Garner to situations where

a suspect has a weapon but is incapacitated or otherwise incapable of using it

(functionally unarmed). 47

The district court stated that, according to Plaintiffs’ narrative, which

is supported by video evidence, Jason never pointed the gun at anyone but

himself. Before the first shot, Jason simply waved the gun in an arc as he

turned around to look in the officers’ direction right after they yelled at him

to drop the gun. As Jason was turning around, Harvel took the first shot. The

shot hit Jason, and he dropped the gun and stumbled into the street away

from the officers and his mother. Thus, the district court concluded that

under these facts, it was obviously unconstitutional to continue shooting at

an unarmed suspect who was limping away from everyone present.

Harvel argues that this is not an obvious case for the same reasons he

argues that there are no disputed facts: “All of the officers, including Officer

Harvel, believed that after the first shot, Roque was still armed. Roque was

not compliant with police commands, was not running away or surrendering

but was armed, mobile and capable of firing his weapon at his mother.”

Plaintiffs’ evidence contradicts all of these points, and the district court

already decided these facts were genuinely disputed. As stated above, we lack

jurisdiction to resolve the genuineness of factual disputes. 48 Further, we

prioritize video evidence. 49 If the jury accepts Plaintiffs’ narrative, which is

46

Id. at 3.

47

See, e.g., Mason v. Lafayette City-Par. Consol. Gov’t, 806 F.3d 268, 277 (5th Cir.

2015).

48

Joseph v. Bartlett, 981 F.3d 319, 331 (2020); Cole v. Carson, 935 F.3d 444, 452

(5th Cir. 2019), as revised (Aug. 21, 2019), cert. denied sub nom. Hunter v. Cole, 141 S. Ct. 111

(2020).

49

Joseph, 981 F.3d at 325.

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supported by video evidence, then Harvel shot a suicidal, unarmed, wounded

man who was a threat only to himself. That would make this case an

“obvious” one. 50

But we need not rely on obviousness here, as multiple cases show that

by May 2, 2017, the day that Harvel shot Jason, it was clearly established that

after incapacitating a suspect who posed a threat, an officer cannot continue

using deadly force. 51

The closest case is Mason v. Lafayette City-Parish Consolidated

Government. 52 In Mason, officers responded to a suspected armed robbery at

an apartment. 53 The apartment belonged to the suspect’s girlfriend, and both

the suspect and girlfriend were inside. 54 When the police arrived, the couple

opened the door and found the officers with their guns drawn. 55 The

girlfriend told the officers that Mason, the suspect, wasn’t doing anything

wrong. 56 The officers ordered Mason and his girlfriend to put their hands up

and get on the ground (although the exact commands were disputed). 57 One

50

See Cole, 935 F.3d at 453–54 (collecting cases).

51

See Lytle v. Bexar Cnty., 560 F.3d 404, 413 (5th Cir. 2009) (“A passing risk to a

police officer is not an ongoing license to kill an otherwise unthreatening suspect”);

Plumhoff v. Rickard, 572 U.S. 765, 777 (2014) (“This would be a different case if petitioners

had initiated a second round of shots after an initial round had clearly incapacitated Rickard

and had ended any threat of continued flight, or if Rickard had clearly given himself up.”).

52

806 F.3d 268 (5th Cir. 2015).

53

Id. at 272.

54

Id.

55

Id. at 273.

56

Id.

57

Id.

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of the officers unleashed his dog after he saw, and yelled to the other officers,

that Mason had a gun. 58

The officer claimed that when the dog attacked Mason, Mason

reached for his gun. 59 In response, the officer started shooting. 60 The

officer’s initial round of shots, five in total, all hit Mason in different parts of

his body. 61 After the fifth shot, Mason was face down on the ground, and the

officer temporarily stopped firing. 62 The officer claimed that Mason made a

movement that indicated he was reaching for his gun, so the officer fired two

more shots into Mason’s back. 63 Mason died at the scene. 64

Mason’s girlfriend told a different story. She said that Mason never

did anything to justify the dog attack, never touched his gun, and never

attempted to resist the officers. 65 She also claimed that after the first five

shots, Mason only picked up his head and put it back down—he never moved

in a threatening manner. 66 An expert also testified that after the first five

shots, Mason could have moved, but not effectively, and moving his arm

toward the gun would have been very painful. 67

58

Id.

59

Id.

60

Id.

61

Id.

62

Id.

63

Id. at 274.

64

Id.

65

Id. at 273.

66

Id.

67

Id.

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We held that the officer was entitled to qualified immunity for the first

five shots, but given the competing narratives, there were material fact

disputes as to the final two shots. 68 Specifically, whether Mason was

incapacitated after the first five shots was disputed and material to the

outcome of the case. 69 We further stated that, under Garner, an officer cannot

use deadly force when a suspect poses no immediate threat, and it was

“obvious” that an officer could not shoot an incapacitated suspect. 70 We

therefore concluded that whether Mason was incapacitated was material to

both the constitutional violation and the clearly established law. 71

Harvel attempts to distinguish Mason by recycling the same argument

that there is no fact dispute about whether Harvel believed Roque was a

continuing threat. Harvel also, once again, claims that the evidence is

undisputed that Jason was not incapacitated after the first shot because “[h]e

was not motionless.” As we previously stated, these arguments about the

genuineness of the fact disputes are inappropriate in this interlocutory

appeal.

There are certainly differences between Mason and this case. Mason

was attacked by a dog and was lying face down when the officer fired the last

two shots. 72 But Mason still had his gun. 73 And both the plaintiffs and

defendants stated that Mason continued to make some movements. 74 We

68

Id. at 278.

69

Id.

70

Id. at 277–78.

71

Id.

72

Id. at 277.

73

Id.

74

Id.

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determined it was for the jury to decide whether those movements made

Mason a threat that justified the officer’s use of deadly force. So too here.

Jason was not lying down after the first shot, but, as the video indisputably

shows, he was unarmed and stumbling into the street, moving further away

from anyone else. Whether a reasonable officer would have thought Jason

was incapacitated or a threat to his mother is a question for the jury to decide.

What’s more, we held in Mason that if the jury accepted the plaintiff’s set of

facts, the case was “obvious” under Garner. If Mason was obvious in 2015,

then the similar fact pattern in this case, which occurred two years later, is at

least clearly established.

Our unpublished decision in Graves v. Zachary in 2008 is also

instructive—not for its precedential value but for discerning the clearly

established law we cited in 2008. 75 In that case, Graves arrived at his ex-

girlfriend’s apartment, asking about her new boyfriend. 76 Graves smelled of

alcohol, had a gun and a box of bullets, threatened to shoot himself, and then

threatened to shoot his ex-girlfriend, Besek, in the leg. 77 Besek locked herself

in a bathroom and called 911. 78 Officers arrived at the scene and told Graves

to show his hands, which Graves did while pressing the gun against his

temple. 79 The officers claimed that they told Graves to drop his weapon, and

75

See Joseph v. Bartlett, 981 F.3d 319, 341 n.105 (5th Cir. 2020) (noting that while

unpublished cases “cannot clearly establish the law,” they “can illustrate or ‘guide us to

such authority,’ by ‘restating what was clearly established in precedents they cite or

elsewhere.’”) (quoting Marks v. Hudson, 933 F.3d 481, 486 (5th Cir. 2019)).

76

Graves v. Zachary, 277 F. App’x 344, 345 (5th Cir. 2008).

77

Id.

78

Id.

79

Id.

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Graves didn’t comply. 80 Graves said he never heard the order. 81 Allegedly

fearing for his life and Besek’s, one officer shot Graves; the shot hit Graves

in the groin. 82 The parties disputed the impact of the first shot. The officers

stated that Graves didn’t slump down or drop his weapon. But Graves

claimed that, although he was still holding his gun, he “was downed or

incapacitated.” 83 “After a short delay,” the officer fired again, this time

hitting Graves in the chest. 84

We held that there was a factual dispute about whether Graves was

incapacitated after the first shot and whether the shooting officer told Graves

to put the gun down before shooting him the first time. 85 Those disputes were

material, and, accepting Grave’s account, “the violation of [Grave’s]

constitutional rights would have been obvious even without a body of relevant

case law.” 86 We further explained that a reasonable officer wouldn’t need a

specific case “to know that he cannot shoot a compliant suspect and that he

cannot fire again at someone who is objectively ‘downed or

incapacitated.’” 87 Since we determined in Graves that shooting an

incapacitated suspect, even one still holding a weapon, was obviously

unconstitutional in 2008, the similar officer conduct here was at a minimum

clearly established in 2017.

80

Id. at 345–46.

81

Id. at 346.

82

Id.

83

Id.

84

Id.

85

Id. at 348–49.

86

Id. at 349 (cleaned up) (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)).

87

Id.

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Harvel says the instructive case here is not Mason or Graves but Garza

v. Briones. 88 In Garza, officers responded to a 911 call about a man (Garza),

who was sitting at a bar holding a pistol and what appeared to be a bottle of

wine. 89 One officer drew his weapon and repeatedly ordered Garza to drop

his gun. 90 Garza ignored the commands and instead “continued to move the

firearm around in different directions while making facial gestures” at the

officer. 91 The officer radioed for backup and waited. 92 When additional

officers arrived, they continued to give Garza commands, which Garza

ignored, and they formed a semi-circle around him with their guns drawn. 93

At one point, a witness told one of the backup officers that Garza’s gun was

not real and was actually just a BB gun. The officer didn’t relay this

information to the other officers because he couldn’t verify it. 94 A minute

later, Garza raised his gun and pointed it at the officer who first arrived on

the scene. 95 The officer yelled at Garza to stop; Garza again ignored the

command. 96 So the officer started shooting. 97 The other officers heard the

shots and assumed that Garza was the one shooting so they fired their

88

943 F.3d 740 (5th Cir. 2019).

89

Id. at 743.

90

Id.

91

Id.

92

Id.

93

Id.

94

Id.

95

Id. at 744.

96

Id.

97

Id.

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weapons at Garza until he fell to the ground. 98 In total, the officers fired 61

shots in an 8-second timespan, killing Garza in the process. 99

Harvel claims that Garza controls here because Jason, like Garza, had

a BB gun that the officers thought was real. And Jason, like Garza, ignored

orders to drop his weapon and displayed erratic behavior, “indicating that he

may [have] pose[d] an imminent threat to anyone on the scene.”

These arguments are unpersuasive. The first, concerning the BB gun,

played no role in the district court’s decision. The court noted that the

officers didn’t know the gun was fake until after their encounter with Jason.

As to the second point, the record in Garza showed that the officers gave

numerous warnings to Garza before shooting. Here, the officers told Jason to

drop his weapon once and started shooting barely a second later. No officer,

including Harvel, repeated the command, even though Harvel paused

between the first and second shots while Jason dropped his gun and limped

away. Further distinguishing this case from Garza is the video evidence. In

Garza, we noted that the video evidence supported the officers’ story and

contradicted the plaintiff’s version of events. 100 The video here does the

exact opposite.

To sum up, Garner, Mason, and Graves are the most pertinent cases.

And those cases show that by 2017, it was clearly established—and possibly

even obvious—that an officer violates the Fourth Amendment if he shoots

an unarmed, incapacitated suspect who is moving away from everyone

present at the scene.

98

Id.

99

Id.

100

Id. at 747.

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IV

This is a tragic case that raises difficult questions about how police

officers should respond to suicidal suspects. Those questions cannot be

answered here without the resolution of several factual disputes. And if

resolved in Plaintiffs’ favor, Harvel is not entitled to qualified immunity. We

thus AFFIRM the district court’s denial of summary judgment.

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