Edwards v. Oliver

Case: 21-10366 Document: 00516284939 Page: 1 Date Filed: 04/19/2022

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

April 19, 2022

No. 21-10366 Lyle W. Cayce

Clerk

Odell Edwards, individually and as the representative of The Estate

of Jordan Edwards, deceased, Vidal Allen, and Kevon

Edwards

Plaintiff—Appellee,

Shaunkeyia Keyon Stephens; Rhonda Washington;

Maxwell Everette; Maximus Everette

Intervenor Plaintiffs—Appellees,

versus

Roy Oliver,

Defendant/Intervenor Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:17-CV-1208

Before King, Graves, and Ho, Circuit Judges.

King, Circuit Judge:

Jordan Edwards, a fifteen-year-old boy, was shot and killed while

leaving a house party by then-Officer Roy Oliver, who had responded to a 911

call about possible underage drinking. Edwards’s family and friends sued

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Oliver and the City of Balch Springs alleging excessive force, and later Oliver

was separately convicted of murder. Oliver’s summary judgment motion

asserted his entitlement to qualified immunity, and the district court denied

the motion. We DISMISS Oliver’s interlocutory appeal of the order

denying qualified immunity for lack of jurisdiction and REMAND for

further proceedings.

I. BACKGROUND

On April 29, 2017, fifteen-year-old Jordan Edwards attended a party

at a house in Balch Springs, Texas (east of Dallas) with his two brothers and

two friends. The house is situated on the south side of Baron Drive, a

residential road that runs east-west and originates on the east end in a “T”

intersection with Shepherd Lane.

At around 11 p.m., Balch Springs Police Department officers Roy

Oliver and Tyler Gross arrived at the house in response to a 911 call about

possible underage drinking. The partygoers dispersed, and the boys returned

to their car parked on Baron Drive near the “T” intersection with Shepherd

Lane. Jordan Edwards’s brother, Vidal Allen, got in the driver’s seat, and

Jordan got in the front passenger seat, with the three other boys in the back

seat.

While the officers were in the house talking with the party host,

gunfire erupted from a parking lot on the east side of Shepherd Lane. Officer

Gross exited the house and immediately walked east. Officer Oliver also

exited the house but walked to his squad car to retrieve his semi-automatic

rifle before beginning to walk east.

While Vidal drove his car slowly, in reverse, on Baron Drive toward

Shepherd Lane, Officer Gross, approaching on foot, yelled at the car to stop.

Officer Oliver continued to walk east along Baron Drive from his squad car,

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and eventually started jogging toward the intersection where Officer Gross

was.

Once Vidal got into the intersection, he put the car in drive and

proceeded southbound on Shepherd Lane. It is at this critical point—when

Vidal started driving forward on Shepherd Lane rather than in reverse—

where the parties dispute what happened. 1 Officer Oliver argues that Vidal

accelerated toward Officer Gross, whereas the plaintiffs-appellees claim that

the vehicle was not close to Officer Gross when it proceeded forward and that

Officer Gross was never in the path of the vehicle.

When Officer Oliver arrived at the intersection, the car was

accelerating past Officer Gross, 2 and Oliver fired five shots at the car’s

passenger side as it headed southbound on Shepherd Lane, away from the

officers in the “T” intersection.

One bullet struck Jordan in the head, killing him. Three days after the

incident, on May 2, 2017, the Balch Springs Police Department terminated

Oliver’s employment. Then, on May 5, 2017, Jordan’s father, Odell

Edwards, and his two (now adult) brothers, Vidal Allen and Kevon Edwards,

filed complaints against the City of Balch Springs and Oliver, alleging, among

other things, a violation of 42 U.S.C. § 1983 for the use of excessive force

contrary to the Fourth Amendment. 3

1

The two officers’ body-camera videos, relied on by both parties, can be viewed at:

(1) https://www.ca5.uscourts.gov/opinions/pub/21/21-10036-Gross-Bodycam.mp4

(2) https://www.ca5.uscourts.gov/opinions/pub/21/21-10036-Oliver-Bodycam.mp4

2

Oliver’s first shot was made shortly after Officer Gross was close enough to the

back passenger-side window to hit it with his pistol, breaking the window.

3

Intervenor-Plaintiffs include Jordan’s mother and two of the car’s passengers and

their mother. Jordan Edwards’s brothers have agreed to settle their claims against both the

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While the civil suit was pending, on August 28, 2018, a jury found

Oliver guilty of murder. The Texas Court of Appeals affirmed Oliver’s

conviction. Oliver v. State, No. 05-18-01057-CR, 2020 WL 4581644, at *1

(Tex. App.—Dallas Aug. 10, 2020, pet. granted). 4 Oliver was sentenced to

fifteen-years imprisonment.

Then, in September 2020, Oliver moved for summary judgment in the

civil suit on the basis of qualified immunity. The magistrate judge denied the

summary judgment motion, concluding that “a reasonable jury could

conclude the car full of teenagers presented no immediate threat to the

officers’ safety, making Oliver’s use of deadly force unreasonable.” The

district court issued an order accepting the magistrate judge’s findings,

conclusions, and recommendation and denying Oliver’s motion for summary

judgment.. Oliver appeals this decision.

II. STANDARD OF REVIEW

“District court orders denying summary judgment on the basis of

qualified immunity are . . . reviewed de novo.” Kokesh v. Curlee, 14 F.4th 382,

390 (5th Cir. 2021). Cases like this one “involve[] multiple legal standards,

corresponding to qualified immunity, summary judgment, . . . and the Fourth

Amendment.” Joseph v. Bartlett, 981 F.3d 319, 328 (5th Cir. 2020). And the

“intersection of these standards gets tricky,” especially how “[q]ualified

immunity changes the nature of the summary-judgment burden, how and

City of Balch Springs and Oliver, but that settlement had not been approved and fully

executed by the parties as of February 23, 2022.

4

The Texas Court of Criminal Appeals granted Oliver’s petition for discretionary

review. Oliver’s petition argued for immunity under Garrity v. New Jersey, 385 U.S. 493

(1967), for Oliver’s statements made to law enforcement. Oliver’s appeal remains pending.

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when the burden shifts, and what it takes to satisfy the burden.” Id. at 328–

29.

Rule 56 of the Federal Rules of Civil Procedure requires summary

judgment when “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” In other words, summary

judgment is appropriate when “the nonmoving party has failed to make a

sufficient showing on an essential element of her case with respect to which

she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). In qualified immunity cases, “[t]he 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.” Joseph, 981 F.3d at 330. “But, to overcome

qualified immunity, the plaintiff’s version of those disputed facts must also

constitute a violation of clearly established law.” Id.

Complicating our task further, “[w]hen a defendant invokes qualified

immunity,” and the district court denies the defendant’s motion for summary

judgment, “it affects our jurisdiction in two ways—‘we review earlier than

we otherwise would, and we review less than we otherwise would.’ ” Kokesh,

14 F.4th at 391 (quoting Joseph, 981 F.3d at 330). First, we allow an

interlocutory appeal “even though denials of summary judgment are not

generally final, appealable orders under 28 U.S.C. § 1291.” Id. (citations

omitted); see Bazan v. Hidalgo Cnty., 246 F.3d 481, 490 (5th Cir. 2001)

(discussing the collateral order doctrine). Second, “the district court’s

finding that a genuine factual dispute exists is a factual determination that this

court is prohibited from reviewing in this interlocutory appeal.” Kokesh, 14

F.4th at 390 (quoting Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010)). Thus,

“in reviewing the denial of qualified immunity, we accept the district court’s

determination that there are genuine fact disputes.” Id. at 391 (citation

omitted); 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

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jurisdiction insofar as the interlocutory appeal challenges the materiality of

[the] factual issues.” (quoting Allen v. Cisneros, 815 F.3d 239, 244 (5th Cir.

2016))). Instead we ask only “whether the factual disputes that the district

court identified are material to the application of qualified immunity.”

Samples v. Vadzemnieks, 900 F.3d 655, 660 (5th Cir. 2018).

Accordingly, to avoid an improper review of the genuineness of this

case’s facts, we consider only whether the district court correctly assessed

the legal significance—that is, the materiality—of the disputed facts in

plaintiffs-appellees’ Fourth Amendment excessive force claim.

III. MATERIAL FACT DISPUTE

“To determine whether a denial of summary judgment based on

qualified immunity is immediately appealable, this Court looks at the legal

argument advanced.” Reyes v. City of Richmond, 287 F.3d 346, 350 (5th Cir.

2002). “An officer challenges materiality when he contends that

‘taking all the plaintiff’s factual allegations as true no violation of a clearly

established right was shown.’ ” Id. at 351 (quoting Cantu v. Rocha, 77 F.3d

795, 803 (5th Cir. 1996)).

On appeal Oliver argues that the facts at the moment of the threat are

undisputed and urges this court to exercise jurisdiction over the case on the

issue of materiality. “[D]espite giving lip service to the correct legal standard,

[Oliver’s] argument does not take the facts in a light most favorable to the

[p]laintiffs. In fact, significant portions of his argument assume facts different

from those assumed by the [m]agistrate [judge].” Id.

For example, Oliver invites us to consider the fact that Oliver “heard

the window shatter right next to Gross,” which may have “sounded like a

gunshot,” making it “reasonable to think it was a gunshot.” Although the

magistrate judge acknowledges the fact that the officers heard gunfire while

they were in the house, nowhere in the magistrate judge’s findings,

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conclusions, and recommendation does the magistrate judge credit Oliver’s

factual assertion about a possible gunshot from the car’s occupants. Oliver

argued in his summary judgment motion (and again on appeal) that he was

“[i]nstinctively/involuntarily reacting to the perceived gunshot/violence

from the Suspect Car towards [Officer] Gross.” This argument invites us to

“assume facts different from those assumed by the [m]agistrate [judge].” Id.

As such, it is not a challenge to the materiality of the disputed facts, but rather

an attack on the magistrate judge’s factual determination. We do not have

jurisdiction to consider such an argument. Id. at 350–51; Kokesh, 14 F.4th at

391. 5

Furthermore, the extent of the car’s threat to Officer Gross is the

factual question at the heart of this case, and despite Oliver’s argument to the

contrary, it is a genuinely disputed question. Oliver describes that the car

accelerated “towards/near/by” Officer Gross, whereas plaintiffs assert that

Officer Gross was never in the path of the vehicle. The magistrate judge

identified this as the crux of the factual dispute warranting denial of summary

judgment: “[T]he body-camera footage sufficiently raises a fact

question. . . [about the car’s] threat of harm to [Officer] Gross because it was

moving away” from him.

5

Oliver also attempts on appeal to expand the relevant factual scenario to include

the “escalating circumstances” of a potential “active shooter” situation, and the

dissenting opinion follows suit, see post, at 4, suggesting that “[i]f anything, the perceived

risk might have been greater in this case” relative to Irwin v. Santiago, No. 21-10020, 2021

WL 4932988 (5th Cir. Oct. 21, 2021), pointing to the series of gun shots that the officers

heard while they were in the house. This expansion of the relevant factual scenario fails not

only because it is outside the magistrate judge’s findings but also because “[t]he excessive

force inquiry is confined to whether the [officer] was in danger at the moment of the threat

that resulted in the [officer’s] shooting.” Bazan, 246 F.3d at 493. The threat resulting in

the officer’s decision to shoot was the accelerating car, not the multiple gunshots the

officers heard while in the house well before they were even in the vicinity of a moving

vehicle.

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Importantly, the resolution of this factual dispute is material because

it affects both whether Oliver’s use of force was reasonable and whether the

force he used violated clearly established law. See Prim v. Stein, 6 F.4th 584,

590 (5th Cir. 2021) (“A [disputed] fact is ‘material’ if its resolution in favor

of one party might affect the outcome of the lawsuit under governing law.”

(quoting Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000))).

Oliver argues that the force he used was not unreasonable, and even if it was

unreasonable, it was not clearly established to be so on April 29, 2017. Our

precedent in Lytle v. Bexar County holds that the use of deadly force against a

fleeing suspect who poses insufficient harm to others violates clearly

established law. 560 F.3d 404, 417-18 (5th Cir. 2009) (focusing on the extent

of the “threat of harm to the officer or others” when the car was moving away

from the officer).

Oliver points to a recent unpublished case from our court, Irwin v.

Santiago, No. 21-10020, 2021 WL 4932988, at *3 (5th Cir. Oct. 21, 2021), for

the proposition that an officer’s position “standing ‘toward the front’ ” of a

moving car precludes Lytle’s applicability for purposes of the “clearly

established” prong. But to reach that conclusion, we would have to resolve

the factual dispute as to whether Officer Gross was standing toward the front

of, toward the back of, or behind the car at the time that Oliver fired his shots.

Unlike in Irwin, viewing the facts at issue here in the plaintiffs’ favor, the

district court stated Officer Gross was toward the back of the car, or behind

the car, as it accelerated down Shephard Lane and before Oliver fired his

shots. In fact, the parties dispute how close Officer Gross was to the car such

that he could hit the back window with his gun before Oliver fired.

The dissenting opinion asserts that the “central question in this case

is whether” the videos in Irwin “are meaningfully distinguishable” from the

videos at issue here. See post, at 1. Although it is tempting to engage in such a

factual comparison, to do so would be inappropriate because, unlike the Irwin

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panel (which was reviewing a final judgment of a grant of qualified immunity),

we are reviewing an interlocutory appeal—that is, an appeal of a denial of

qualified immunity. On an interlocutory appeal, “we review less than we

otherwise would.” Kokesh v. Curlee, 14 F.4th 382, 391 (5th Cir. 2021)

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

when the lower court finds “that a genuine factual dispute exists” we are

prohibited from reviewing its genuineness. Id. at 390 (quoting Good v. Curtis,

601 F.3d 393, 397 (5th Cir. 2010)). Here, the lower court specifically found a

factual dispute, and taking the facts in the light most favorable to the

plaintiffs, found that “neither Oliver nor Gross was positioned in front of the

[moving] car when Oliver opened fire.”

Our dissenting colleague encourages us to conduct a direct

comparison of the two cases’ videos 6 and conclude that the threat posed to

Officer Gross was akin to the threat posed to Officer Santiago, who—

according to the Irwin panel conducting a de novo review of a final judgment

granting qualified immunity—“was standing ‘toward the front’ ” of the

moving vehicle when the officers began shooting. 2021 WL 4932988, at *3.

Conducting a comparison of the two videos would not only run counter to

our court’s binding precedent regarding the scope of our role in interlocutory

appeals in qualified immunity cases, but the conclusion our dissenting

colleague would have us draw from that comparison would also implicitly

overturn the lower court’s determination that a genuine factual dispute

exists.

6

We also note that the footage in the present case, compared to the footage in

Irwin, offers considerably less certainty about the position of the purportedly at-risk officer

relative to the moving car at the time that deadly force was used. This added uncertainty

further counsels restraint in this interlocutory appeal.

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Furthermore, despite the dissenting opinion’s comparison of this case

to Irwin and statement that both cases involve cars driving away from an

officer, see post, at 1, 4-5, the panel in Irwin stated that “the projected path of

Irwin’s vehicle was in the officer’s direction, at least generally,” and

distinguished that fact from other cases where the car “was moving away

from the officer,” Irwin, 2021 WL 4932988, at *3 (emphasis added). If we

were to compare the two cases, this case is unlike Irwin in that, here, the

district court determined that a resolution of the factual disputes in the

plaintiffs’ favor places Officer Gross toward the back of or behind the car, not

in the projected path of the car (where the front tires were facing

southbound), and that the car was moving away from the Officer Gross when

Oliver fired his shots. We need not say that Irwin was wrongly decided, nor

do we attempt to. Rather, we say only that the factual dispute in this case is

not the same as that in Irwin.

Because an analysis of the clearly established prong is fact-intensive,

“courts must take care not to define a case’s ‘context’ in a manner that

imports genuinely disputed factual propositions.” Kokesh, 14 F.4th at 392

(quoting Tolan v. Cotton, 572 U.S. 650, 657 (2014)). As such, “[w]e find that

if a jury accepts Plaintiffs’ version of the facts as true, particularly as to what

occurred in the moments before [Oliver] shot [at the car], the jury could

conclude that the officers violated [Plaintiffs’] clearly established right to be

free from excessive force.” Amador v. Vasquez, 961 F.3d 721, 730 (5th Cir.

2020), cert. denied, 141 S. Ct. 1513 (2021); see also Flores v. City of Palacios, 381

F.3d 391, 400 (5th Cir. 2004) (stating the resolution of whether shooting into

tires in “circumstances such as these” depended on the dispute of material

fact and affirming the denial of summary judgment); Joseph, 981 F.3d at 342

(denying qualified immunity at the summary judgment stage because there

was a dispute of material fact). Moreover, to the extent that Oliver argues

that the car’s threat is immaterial to the excessive-force analysis, we disagree

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and find it material to the excessive force claim. Lytle, 560 F.3d at 409, 418

(5th Cir. 2009). Because the factual dispute is material, “we lack jurisdiction

to consider the propriety of the summary judgment denial.” Bazan, 246 F.3d

at 493. We leave it to the jury to weigh the disputed facts.

IV. CONCLUSION

For the foregoing reasons, we DISMISS Oliver’s interlocutory

appeal. The case is REMANDED for further proceedings.

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James C. Ho, Circuit Judge, dissenting:

In my view, the central question in this case is whether the events

depicted in the videos taken from the body cameras of Officers Roy Oliver

and Tyler Gross, see ante, at 3 n.1, are meaningfully distinguishable from the

bodycam video at issue in Irwin v. Santiago, 2021 WL 4932988, at *1 n.1 (5th

Cir.).

If there is a meaningful distinction here, then we should explain what

it is. But if there isn’t one, then we should reach the same outcome as we did

in Irwin—entry of summary judgment based on qualified immunity. Barring

that, we should at least explain why we think our court’s unanimous but

unpublished, non-precedential decision in Irwin is incorrect.

For my part, I see no principled difference between the video evidence

in Irwin and the videos in this case. In both cases, the driver of an automobile

appears to be trying to escape a police officer by driving away from him—not

by running him over. In both cases, the officer was nevertheless close enough

to the anticipated path of the automobile that he theoretically could have

been hit and badly injured as a result.

So a reasonable viewer of the videos may be troubled by the callous

conduct of the officers in both cases—or unconcerned because of the

hypothetical threat to officer safety in both cases. But the reaction should be

the same.

And that should decide this case. Because in Irwin, our court

concluded that the officers may well have violated the Fourth Amendment,

due to the absence of immediate danger of harm—but that any such violation

was not “clearly established,” so the officers were entitled to qualified

immunity. Id. at *3. And Irwin was decided well after the events in this case.

So if the law wasn’t clearly established at the time of Irwin, then it wasn’t

clearly established here, either.

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To be sure, a good case can be made that we should not require

plaintiffs under 42 U.S.C. § 1983 to identify a “clearly established” violation

of law. See, e.g., Horvath v. City of Leander, 946 F.3d 787, 795, 800–03 (5th

Cir. 2020) (Ho, J., concurring in the judgment in part and dissenting in part).

But we are of course bound by that requirement as a matter of longstanding

Supreme Court precedent. See, e.g., Lefebure v. D’Aquilla, 15 F.4th 650, 663

(5th Cir. 2021) (noting “our obligation to follow Supreme Court precedent,

whether we like it or not”). And that precedent entitles Oliver to qualified

immunity here, just as our court held in Irwin. 1

I.

The panel majority concludes that we need not—and indeed cannot—

decide whether the videos in this case are comparable to the video in Irwin.

According to the panel, that’s a fact dispute for a jury to resolve, not a

qualified immunity question for this court to decide. See ante, at 8-9.

But it’s not clear to me why that is. We all agree that, on interlocutory

appeal from the denial of qualified immunity, we do not address whether a

fact dispute is genuine—but we do address whether a fact dispute is material.

See, e.g., Lytle v. Bexar Cty., 560 F.3d 404, 408 (5th Cir. 2009) (“Where the

district court has determined that genuine issues of material fact preclude a

determination of qualified immunity, we have jurisdiction only to address the

1

Qualified immunity also explains why our decision in this case is not dictated by

Oliver’s state court criminal conviction. Unlike a federal habeas proceeding—where a state

court criminal conviction would be entitled to deference—this is a § 1983 action, where a

prior state court judgment is given no deference in a later federal action because “the

defense[] of . . . qualified immunity . . . [was] not available” in the prior state proceeding.

Gutierrez v. Coughlin, 841 F.2d 484, 486 (2nd Cir. 1988). Moreover, there is also the fact

that Oliver’s conviction remains pending on appeal, following the grant of discretionary

review by the Texas Court of Criminal Appeals, as the panel majority notes. Ante, at 4 n.4.

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legal question of whether the genuinely disputed factual issues are material

for the purposes of summary judgment.”).

And we all agree that any fact dispute, no matter how genuine, is

immaterial “[i]f the defendant would still be entitled to qualified immunity

under [the plaintiff’s] view of the facts”—and that in such cases, “denial of

summary judgment [is] improper, and we must reverse.” Id. at 409.

Finally, we all agree that Oliver properly presented a materiality

argument on appeal. He argues that there’s no clearly established violation

in this case, citing Irwin. And he invites us to compare this case to the

bodycam video in Irwin.

The panel majority acknowledges all of this. It agrees that we “lack

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

insofar as the interlocutory appeal challenges the materiality of the factual

issues.” Ante, at 5-6 (quoting Melton v. Phillips, 875 F.3d 256, 261 (5th Cir.

2017) (en banc)) (cleaned up). And it agrees that a fact dispute is immaterial,

and the defendant is entitled to qualified immunity, when, “‘taking all the

plaintiff’s factual allegations as true[,] no violation of a clearly established

right was shown.’” Ante, at 6 (quoting Reyes v. City of Richmond, 287 F.3d

346, 351 (5th Cir. 2002)).

So it’s not clear to me why the panel responds by explaining why it is

improper for us to review the genuineness of a fact dispute—a point that is

both undisputed and irrelevant to this appeal.

In any event, my point is simply this: I see no principled reason why

we should depart from what our colleagues did in Irwin. Both here and in

Irwin, there was a genuine fact dispute—but an immaterial one for purposes

of qualified immunity.

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In Irwin, the parties genuinely disputed, among other things, whether

the vehicle was accelerating toward or away from the officer—a

quintessential fact question. We nevertheless held that the dispute was

immaterial as to whether the officers violated clearly established law.

That’s because, even accepting the plaintiff’s view that “[n]either

officer ‘was positioned directly in front of or in the pathway of [the]

vehicle,’” the facts as depicted in the bodycam video were “not sufficiently

analogous to” prior authorities such that the officers “would have been ‘on

notice’ that their conduct was unconstitutional.” Irwin, 2021 WL 4932988,

at *1, *3.

So the fact dispute identified by the panel here is virtually identical to

the dispute in Irwin: Oliver says the vehicle accelerated toward Gross, while

Plaintiffs say Gross was never in the vehicle’s path.

If that dispute was immaterial in Irwin, it’s immaterial here as well.

II.

Plaintiffs’ efforts to distinguish the videos here and in Irwin are

unconvincing. During oral argument, Plaintiffs’ counsel claimed that the

officer was in greater danger in Irwin than here due to their relative proximity

to the automobiles. But I see nothing in the videos to support such a claim.

In both cases, an officer was plausibly, albeit not likely, within the anticipated

path of the automobile.

In fact, if anything, the perceived risk might have been greater in this

case: Here, the officers were responding to a series of gun shots, and ran to

the scene on a dark street late at night with limited visibility—facts not

present in Irwin, and undisputed here.

The panel majority responds that it must ignore these facts because

they have nothing to do with how the officers perceived the very different

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threat of the accelerating car. See ante, at 7 n.5. But that ignores the fact that

the officers believed they were in hot pursuit of the shooter, just moments

after the shooting, when they were confronted with an accelerating car

controlled by a driver who refused to obey police instructions. Although the

use of deadly force likely violated the Fourth Amendment under Irwin, the

violation wasn’t clearly established, as Irwin itself confirms.

The panel majority also invokes the fact that, in Irwin, our court noted

that “‘the projected path of Irwin’s vehicle was in the officer’s direction, at

least generally.’” Ante, at 10 (quoting Irwin, 2021 WL 4932988, at *3)

(emphasis added). But the same thing is true in this case, as the videos here

and in Irwin readily confirm.

Finally, the panel majority suggests a potential distinction based on

the timing of the shots fired in this case and in Irwin. See ante, at 10. But to

be clear, we’re talking about less than a second here. To their credit, Plaintiffs’

counsel during oral argument disclaimed any meaningful reliance on the

timing of the shots fired here as compared to Irwin.

And even putting all of this aside, one central problem remains: To

overcome qualified immunity, Plaintiffs (and the panel majority) must

demonstrate that the constitutional violation here was clearly established. So

what authority clearly establishes the constitutional violation in this case?

There is none. And that’s the whole point of Irwin—that there is no such

authority, at least none before Irwin itself.

***

If Irwin is wrong, we should say so. It’s unpublished. So we’re not

bound by it. We’re subject only to persuasion by the respected members of

that panel.

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But I’m not prepared to say that Irwin was wrongly decided. And nor,

it appears, is the panel majority. See ante, at 10.

Our legal system is premised on the principle of treating like cases

alike. See, e.g., H.L.A. Hart, The Concept of Law 163–64 (3d ed.

2012). We should follow that principle here. I respectfully dissent.

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