Crane v. City of Arlington

Case: 21-10644 Document: 00516492221 Page: 1 Date Filed: 09/30/2022

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

September 30, 2022

No. 21-10644 Lyle W. Cayce

Clerk

De’On L. Crane, Individually and as the Administrator of the Estate of

Tavis M. Crane and on behalf of the Statutory Beneficiaries, G. C., T.

C., G. M., Z. C., and A. C., the surviving children of Tavis M.

Crane; Alphonse Hoston; Dwight Jefferson; Valencia

Johnson; Z. C., Individually, by and through her guardian Zakiya

Spence,

Plaintiffs—Appellants,

versus

City of Arlington, Texas; Craig Roper,

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:19-CV-91

Before Higginbotham, Dennis, and Graves, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge:

In 1996, the Supreme Court approved the use of pretextual stops in

Whren v. United States. 1 Since then, pretextual stops have become a

1

517 U.S. 806, 810 (1996).

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cornerstone of law enforcement practice. 2 Police officers follow a suspicious

person until they identify a traffic violation to make a lawful stop, even

though the officer intends to use the stop to investigate a hunch that, by itself,

would not amount to reasonable suspicion or probable cause. 3 Often pulled

over for minor traffic violations, these stops create grounds for violent—and

often deadly—encounters that disproportionately harm people of color. 4

When Whren was decided, the Court did not have what we have

now—twenty-five years of data on the effects of pretextual stops. 5 Indeed,

the Whren Court differentiated pretextual stops from “extreme practices”

like the use of deadly force. 6 Today, traffic stops and the use of deadly force

are too often one and the same—with Black and Latino drivers

overrepresented among those killed—and have been sanctioned by

numerous counties and major police departments. 7

2

David D. Kirkpatrick, Steven Eder & Kim Barker, Cities Try to Turn the Tide on

Police Traffic Stops, N.Y. TIMES (Apr. 15, 2022),

https://www.nytimes.com/2022/04/15/us/police-traffic-stops.html.

3

Stephen Rushin & Griffin Edwards, An Empirical Assessment of Pretextual Stops

and Racial Profiling, 73 Stan. L. Rev. 637, 640 (2021).

4

See Sam Levin, US Police Have Killed Nearly 600 People in Traffic Stops Since 2017,

Data Shows, GUARDIAN (Apr. 21, 2022), https://www.theguardian.com/us-

news/2022/apr/21/us-police-violence-traffic-stop-data (“Black drivers make up 28% of

those killed in traffic stops, while accounting for only 13% of the population. Research has

consistently found that Black and brown drivers are more likely to be stopped, searched and

subjected to force.”).

5

See Rushin & Edwards, supra, at 657–58 (noting the emergence of race-profiling

research as a modern field of study).

6

Whren, 517 U.S. at 818.

7

Kirkpatrick et al., supra.

2

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While several major cities have restricted the practice,8 in much of

America, police traffic stops still seine for warrants despite the shadows of

Monell v. Department of Social Services, 9 where a § 1983 claim can succeed

against a city with a showing that city policy was the moving force behind a

constitutional injury, and was implemented with deliberate indifference to

the known or obvious consequence that constitutional violations would

result. 10 The potential liability attending a policy of pretextual stops aside,

their empirical consequences are clear: they lead to the unnecessary and

tragic ending of human life. Here, a child threw a candy cane out the window.

Twenty-five minutes later, the driver, her father, was dead.

To be clear, we apply only settled laws that govern this case today,

cast as they are against the larger frame of their play in the streets across the

country.

I.

Tavis Crane’s estate and the passengers of Crane’s car sued Arlington

Police Officer Craig Roper and the City of Arlington for the use of excessive

force during a traffic stop in violation of the Fourth Amendment. The district

court dismissed the passengers’ claims, finding that they could not bring

claims as bystanders, and granted summary judgment to Roper and the City

8

Los Angeles, Philadelphia, Pittsburgh, Seattle, Berkeley, and the State of Virginia

have all banned or restricted pretextual stops. Id.; see LOS ANGELES POLICE DEPARTMENT

MANUAL §240.06 (2022) (established by Special Order No. 3); Achieving Driving

Equality, PHILA. CODE §§ 12-1701–1703 (2021); Pittsburgh, Pa., PGH CODE ORDINANCES

§ 503.17 (2021); SEATTLE POLICE DEPARTMENT MANUAL § 6.220 (2020); BERKELEY

POLICE DEP’T, LAW ENFORCEMENT SERVICES MANUAL §401(2) (2022); VA. CODE ANN.

§§ 46.2-1014, 46.2-1052, 46.2-646, 46.2-1157 (limiting ability to use evidence discovered or

obtained as a result of a stop for a minor traffic violation).

9

436 U.S. 658 (1978).

10

Alvarez v. City of Brownsville, 904 F.3d 382, 389–90 (5th Cir. 2018) (en banc).

3

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after determining that Roper was entitled to qualified immunity. We affirm

the dismissal of the passengers’ claims and vacate the grant of summary

judgment as to Crane’s claims and dismiss the appeals of those claims for

want of jurisdiction.

On February 1, 2017, Tavis Crane was driving in Arlington, Texas

with three passengers: Dwight Jefferson, Valencia Johnson, who was

pregnant with Crane’s child, and Z.C., Crane’s two-year-old daughter.

While Crane was stopped at a traffic light at approximately 11:38 p.m., Officer

Elsie Bowden pulled up behind him. After the light turned green, Crane

pulled away from the intersection and Bowden saw an object being tossed

from the passenger’s side. She claims that she thought the object might be a

crack pipe and called for backup; Roper responded.

Bowden turned on her police car’s lights and Crane pulled over.

Bowden approached the passenger side of the vehicle and asked Jefferson

what he threw out the window. Jefferson replied that the only thing he threw

was a cigarette butt. Bowden asked Crane for his driver’s license and proof

of insurance. Crane provided Bowden with his identification card, as he did

not have a driver’s license. Bowden then noticed an object fall on the ground

behind her, outside the window by Z.C. She recognized the object as the red

top of a large plastic Christmas candy cane and realized the object thrown

from the car was the candy cane’s clear bottom half. Bowden laughed about

the misunderstanding and handed the red piece back to Z.C. But she did not

send the family on. Rather, she returned to her vehicle and ran a warrant

check, which found that Crane had warrants for several misdemeanors and a

possible felony probation violation.

Bowden requested additional backup and confirmation of the warrants

and was informed that Officer Eddie Johnson was also en route. While

waiting for the other officers to arrive, she confirmed five misdemeanor

4

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warrants from Grand Prairie but was still waiting for a reply from Dallas

County for the felony probation warrant, and began writing Crane a citation

for driving without a license.

At 11:47 p.m., Officer Johnson arrived. Bowden informed him that the

passengers had been cooperative and that she wasn’t sure if Crane even knew

he had a warrant out. Roper arrived after that conversation and received no

briefing, knowing only the information relayed to his in-car computer display,

which showed Crane’s unconfirmed outstanding warrant for a felony

probation violation.

All three officers then approached Crane’s car at 11:50 p.m., by which

point Crane had rolled up his window almost entirely. Bowden stood next to

Crane’s window; Roper was behind Bowden, next to Valencia Johnson, with

Officer Johnson on the other side of the car, next to Jefferson. Bowden asked

Crane to step out of the car because he had outstanding warrants, which

Crane denied. Bowden told Crane that if he did not get out of the car, he

would face additional charges. Crane said he needed to get Z.C. home to her

mother. Bowden asked if he could leave Z.C. with the other passengers and

alternatively offered to call someone to pick her up. Crane refused, insisting

that he did not have any outstanding warrants and reiterating that he was not

getting out. Bowden told him five tickets had been confirmed. Crane asked

what the warrants were for. Bowden said she didn’t know yet. Bowden told

Crane, “I need you to step out of the car, honey. Tavis if you go and do

something stupid then we are gonna be breaking windows, it’s gonna get

crazy, it ain’t worth it.”

Officer Johnson ordered Jefferson, sitting in the passenger seat, to

turn off the car and give him the key. Jefferson began moving his hand toward

the key to comply, but Crane told him to stop. Roper then ordered Valencia

Johnson to unlock the rear driver’s side door where she was seated; she did.

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Roper opened the door, unholstered his pistol, and ordered everyone to put

their “f---ing hands up.” Crane, Jefferson, and Valencia Johnson all put their

hands up. He initially pointed his pistol at Jefferson before entering the car,

climbing over Valencia Johnson, and pointing his gun at Crane.

According to the passengers, Roper put his arm around Crane’s neck.

Roper contends that he grabbed the hood of Crane’s sweatshirt. All three

officers continued to order Crane to open the door and turn the car off.

Officer Johnson circled behind Crane’s car to move next to Bowden as she

shouted “Tavis don’t do it.” The car engine began to rev, and the car shook

as the brake lights turned on and off sporadically. Bowden reached for Roper

in the back seat, and told Roper three times to “get out” of the car. Roper

remained in the car. Officer Johnson broke the window next to Crane with

his baton as Bowden began to move toward the rear of the car.

The passengers contend that when Crane, with Roper’s gun pointed

at him, moved his hand to turn off the car in compliance with Roper’s order,

Roper shot him, his head fell backwards, the engine revved and the car

lurched backward, striking Bowden—by now behind the car—before moving

forward and running over Bowden again and speeding off.

Roper claims that Crane shifted the car in gear while the two

struggled, and that it was only after the car ran over Bowden and after Roper

warned Crane that he would kill him if Crane did not stop the car that Roper

shot Crane twice. Roper claims that the first two shots “did not cause Crane

to stop the vehicle, [so] he fired two other shots.”

After Roper shot Crane, the car careened down the road and Roper

took the keys out of the ignition and steered the car to a stop. Officer Johnson

caught up in his squad car and told Roper to pull Crane from the driver’s seat

and perform CPR. Roper continued to shout and curse at Crane, asking why

6

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he had not stopped, but Crane was silent. An autopsy concluded that Crane

was shot four times and died of gunshot wounds to his abdomen.

II.

On January 31, 2019, Crane’s mother, as the administrator of Crane’s

estate and on behalf of his surviving children, and the other passengers filed

a 42 U.S.C. § 1983 claim against the City of Arlington and Officer Roper,

individually and in his official capacity. The plaintiffs allege that Roper

violated their Fourth Amendment rights and that the City is liable under

Monell v. Department of Social Services. 11

The City and Roper moved to dismiss the plaintiffs’ claims. The

district court concluded that the passengers—Jefferson, Valencia Johnson,

and Z.C.—could not bring claims as bystanders and dismissed their claims

with prejudice but denied the motions to dismiss Crane’s claims.

Asserting qualified immunity, Roper then moved for summary

judgment, which the district court granted. The district court acknowledged

that Valencia Johnson and Roper presented different accounts of when the

first shot occurred, 12 but found that “a reasonable jury could not believe [the

passengers’] account of the shooting.” 13 Finding Roper entitled to qualified

immunity, the district court dismissed Crane’s claims against Roper and the

City with prejudice. 14 The plaintiffs timely appealed the order on the motion

to dismiss and the grant of summary judgment.

11

436 U.S. 658 (1978).

12

Crane v. City of Arlington, 542 F. Supp. 3d 510, 513 (N.D. Tex. 2021) (“The

backseat passenger swears the shot occurred before the car started reversing . . . . The

officers claim Roper fired his gun after the car ran over Bowden the second time.”).

13

Id. at 514.

14

Id.

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III.

We review de novo a district court’s grant of summary judgment. 15

Summary judgment is proper “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” 16 “Only disputes over facts that might affect the outcome of

the suit under the governing law will properly preclude the entry of summary

judgment.” 17 We may affirm on any grounds supported by the record and

presented to the district court. 18

We likewise review de novo a district court’s dismissal under Federal

Rule of Civil Procedure 12(b)(6). 19 To survive a motion to dismiss, a plaintiff

must plead “enough facts to state a claim to relief that is plausible on its

face.” 20 When reviewing a motion to dismiss, we “must accept all facts as

pleaded and construe them in the light most favorable to the plaintiff.” 21

IV.

First, we review the district court’s grant of summary judgment.

“When a defendant official moves for summary judgment on the basis of

qualified immunity, ‘the burden then shifts to the plaintiff, who must rebut

the defense by establishing a genuine fact issue as to whether the official’s

15

Aguirre v. City of San Antonio, 995 F.3d 395, 405 (5th Cir. 2021).

16

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

17

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

18

Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008).

19

Waste Mgmt. La, L.L.C. v. River Birch, Inc., 920 F.3d 958, 963 (5th Cir. 2019).

20

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

21

Reed v. Goertz, 995 F.3d 425, 429 (5th Cir. 2021) (internal quotation marks and

citations omitted).

8

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allegedly wrongful conduct violated clearly established law.’” 22 All facts

must be viewed in the light most favorable to the nonmovant and all justifiable

inferences must be drawn in his favor. 23

When there is video evidence in the record, courts are not bound to

accept the nonmovant’s version of the facts if it is contradicted by the

video. 24 But when video evidence is ambiguous or incomplete, the modified

rule from Scott v. Harris has no application. 25 Thus, “a court should not

discount the nonmoving party’s story unless the video evidence provides so

much clarity that a reasonable jury could not believe his account.” 26

The district court acknowledged the competing factual accounts—

specifically when Roper shot Crane—but relied on the dashcam video from

Bowden’s patrol car to reject Crane’s account and adopt Roper’s account.

But the video does not clearly contradict Crane’s account of events such that

the district court was entitled to adopt Roper’s factual account at the

summary judgment stage. “Scott was not an invitation for trial courts to

abandon the standard principles of summary judgment by making credibility

determinations or otherwise weighing the parties’ opposing evidence against

each other any time a video is introduced into evidence.” 27

22

Aguirre, 995 F.3d at 406 (quoting Darden v. City of Fort Worth, 880 F.3d 722, 727

(5th Cir. 2018)).

23

Darden, 880 F.3d at 727.

24

Harris v. Serpas, 745 F.3d 767, 771 (5th Cir. 2014) (citing Scott v. Harris, 550 U.S.

372, 381 (2007)).

25

Aguirre, 995 F.3d at 410 (citing Scott, 550 U.S. at 378).

26

Darden, 880 F.3d at 730.

27

Aguirre, 995 F.3d at 410.

9

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What happened inside Crane’s car is not visible in the dashcam video.

As such, the video does not resolve the relevant factual disputes. It is not

clear from the video when Roper shot Crane, when Crane became

unconscious, whether the car moved before or after Roper shot Crane, and

whether Roper had his arm around Crane’s neck or was grabbing Crane’s

sweatshirt. Because the video evidence does not clearly contradict Crane’s

account, for purposes of this appeal, we must take Crane’s account as

true 28—that Roper had Crane in a chokehold and that Roper shot Crane

before the car began to move.

The district court found that the gear could change and the car could

move only with the conscious intention of Crane. 29 But that conclusion

ignores the other plausible explanation that the gears were shifted during the

struggle between Crane and Roper, as Crane attempted to comply with

Roper, and that the chokehold caused Crane to press down on the accelerator

as an attempt to relieve the stress on his neck, as opposed to attempting to

flee. When two conclusions are plausible, at the summary judgment stage, we

must accept as true that which is most favorable to the nonmovant. 30 The

district court erred by applying its own interpretation of the video and

accepting Roper’s factual account over Crane’s of what occurred inside the

car. “[A]t the summary judgment stage the judge’s function is not himself to

weigh the evidence and determine the truth of the matter,” that job is

reserved for the jury. 31

28

See Darden, 880 F.3d at 730 (“[A] court should not discount the nonmoving

party's story unless the video evidence provides so much clarity that a reasonable jury could

not believe his account.”).

29

Crane, 542 F. Supp. 3d at 514.

30

Darden, 880 F.3d at 727.

31

Id. at 730.

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A.

Next, we must consider whether Roper is entitled to qualified

immunity under Crane’s account of events. We hold he is not at this stage.

“The doctrine of qualified immunity shields officials from civil

liability so long as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.” 32

When reviewing a motion for summary judgment based upon the affirmative

defense of qualified immunity, we engage in a two-pronged inquiry. 33 First,

the constitutional question, asking whether the officer’s conduct violated a

federal right. 34 Second, asking whether that right was clearly established at

the time of the violation. 35

The constitutional question in this case is governed by the principles

enunciated in Tennessee v. Garner 36 and Graham v. Connor, 37 which establish

that claims of excessive force are determined under the Fourth

Amendment’s “objective reasonableness” standard. 38 Specifically regarding

deadly force, Justice White explained in Garner that it is unreasonable for an

officer to “seize an unarmed, nondangerous suspect by shooting him dead;”

but, “[w]here the officer has probable cause to believe that the suspect poses

32

Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (internal quotation marks

and citation omitted).

33

Aguirre, 995 F.3d at 406.

34

Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (per curiam).

35

Id. at 656.

36

471 U.S. 1 (1985).

37

490 U.S. 386 (1989).

38

Brosseau v. Haugen, 543 U.S. 194, 197 (2004) (quoting Graham, 490 U.S. at 388).

11

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a threat of serious physical harm, either to the officer or to others, it is not

constitutionally unreasonable to prevent escape by using deadly force.” 39

We analyze the reasonableness of the force used under factors drawn

from Graham, including the severity of the crime at issue, whether the

suspect poses a threat to the safety of the officers or others, and whether the

suspect is actively resisting arrest or attempting to evade arrest. 40 While all

factors are relevant, the “threat-of-harm factor typically predominates the

analysis when deadly force has been deployed.” 41 The reasonableness is

judged from the perspective of a reasonable officer on the scene, 42 and only

the facts then knowable to the defendant officers may be considered. 43

First, we address whether Crane posed an immediate threat to the

safety of the officers. Accepting the facts as the passengers allege, Crane was

shot while unarmed with Roper’s arm around his neck. Roper first argues

that he had a reasonable fear that Crane might have a weapon. But from his

position, Roper could see if Crane was reaching for a gun, as could the other

officers outside the vehicle, yet none of them—including Roper—reported a

suspicion of a weapon. Roper could not have reasonably suspected that Crane

had a weapon.

39

Garner, 471 U.S. at 11.

40

490 U.S. 386, 396 (1989).

41

Harmon v. City of Arlington, 16 F.4th 1159, 1163 (5th Cir. 2021).

42

Graham, 490 U.S. at 396.

43

White v. Pauly, 580 U.S. 73 (2017) (per curiam); see also Cole v. Carson, 935 F.3d

444, 456 (5th Cir. 2019), as revised (Aug. 21, 2019) (en banc) (“[W]e consider only what

the officers knew at the time of their challenged conduct.”).

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Roper alternatively contends that the threat came from the car. 44 As

seen in the video, prior to the first shot, Crane’s car was parked, the engine

revved, and the tires spun. As the district court noted, Roper was inside the

car with the door open, so had Crane sped off, Roper could have fallen out

and been seriously injured. 45 However, accepting the facts as Crane alleges,

Roper shot Crane while the car was still in park and before the car began to

move. As Roper was not at imminent risk of being expelled from a parked car,

the vehicle did not in this sense pose a serious threat. Roper also asserts that

Bowden and Officer Johnson were in danger, but at the time Roper shot

Crane, Bowden and Officer Johnson were standing to the side of Crane’s car,

not behind it, unlikely to be hit by the car. 46 Ultimately, the car was not a

threat until it began to move, which did not occur until Roper shot Crane.

Whether Roper’s use of deadly force was reasonable may well turn on

whether the car was in park or moving at the moment Roper shot Crane. 47

But that is a question for the jury. 48

44

See Scott, 550 U.S. at 379, 383 (noting that, in certain circumstances, a moving

vehicle can pose a threat to individuals in its vicinity).

45

See Harmon, 16 F.4th at 1164 (“Common sense confirms that falling off a moving

car onto the street can result in serious physical injuries.”).

46

Only after the alleged first shot did Bowden walk behind the car, when she was

then run over.

47

Compare Brosseau, 534 U.S. at 197, 200 (holding a vehicle was a threat when it

was driven in a manner indicating a willful disregard for the lives of others), and Harmon,

16 F.4th at 1165 (holding a vehicle was a threat as it sped off with an officer holding on to

its edge), with Deville v. Marcantel, 567 F.3d 156, 169 (5th Cir. 2009) (holding an officer has

no reason to believe a noncompliant driver in a parked car with the engine running is a

threat). But see Lytle v. Bexar County, 560 F.3d 404, 411 (5th Cir. 2009) (“[T]he [Supreme]

Court’s decision in Scott did not declare open season on suspects fleeing in motor

vehicles.”).

48

See Lytle, 560 F.3d at 411 (“Our standard of review [in a qualified immunity]

interlocutory appeal—namely, whether a reasonable jury could enter a verdict for the non-

moving party—emphasizes the importance of juries in cases of alleged excessive force.”).

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Finally, this Court considers the speed with which an officer resorts

to force where officers deliberately, and rapidly, eschew lesser responses

when such means are plainly available and obviously recommended by the

situation. 49 Officer Bowden demonstrated an admirable attempt to negotiate

with Crane. Roper, on the other hand, shot Crane less than one minute after

he drew his pistol and entered Crane’s backseat aside a pregnant woman and

a two-year-old. 50 Not only was the option to get out of the car—as opposed

to shooting Crane—plainly available, but Bowden, reached into the backseat

to touch Roper, repeatedly urging Roper to “get out” of the car, reflecting

the sound view that they could not use deadly force to keep Crane from

fleeing. But Roper remained in the car, shooting Crane just seconds later. A

reasonable jury could conclude that reasonable officers, like Bowden, would

have been keenly aware that deadly force should not have been used, and that

instead, Crane should have been let go to take his child home; that Crane did

not pose a threat of harm such that the use of deadly force was reasonable.

The threat-posed factor favors Crane.

Roper provided a report from the department’s forensic expert identifying the sound of

two shots occurring after Bowden was shot. Roper argues that the two other shots are not

audible in the video because they occurred when Crane’s car was too far away for the

dashcam to pick up the noise. When the shots were fired, and whether there was a

continuing threat that necessitated the use of deadly force, is a question that ought to be

resolved by a jury. See Mason v. Lafayette City-Parish Consolidated Gov., 806 F.3d 268, 278

(5th Cir. 2015) (holding an officer was entitled to qualified immunity as to the first five

shots, but given the competing narratives, material fact disputes precluded qualified

immunity as to the final two shots).

49

See Harmon, 16 F.4th at 1165.

50

We note that Roper did warn Crane that he would shoot him if he did not turn

the car off. “Garner . . . requires a warning before deadly force is used ‘where feasible,’ a

critical component of risk assessment and de-escalation.” Cole, 935 F.3d at 453 (quoting

Garner, 471 U.S. at 11). However, according to the passengers, when Crane lowered his

hand to comply, Roper shot him.

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While the remaining two factors do not weigh as heavily upon our

analysis, they yet demand attention. 51 As to the severity of the crime at issue,

Roper was attempting to effect an arrest for an unconfirmed felony probation

violation warrant and multiple confirmed misdemeanor warrants. Although

police officers have the right to order a driver to exit the car, 52 they cannot

use excessive force to accomplish that end. 53 Reasonable officers could

debate the level of force required to effect an arrest given the severity of the

violations at issue, 54 but neither of the other officers felt the need to enter the

car or draw their pistols to address the severity of the violation. Rather, the

arresting officer attempted to intervene to stop Roper. This factor favors

Crane.

The third Graham factor is whether Crane was actively resisting arrest

or attempting to evade arrest by fleeing. “Officers may consider a suspect’s

refusal to comply with instructions during a traffic stop in assessing whether

physical force is needed to effectuate the suspect’s compliance.” 55 While

Crane was compliant with Bowden’s initial requests, he refused to comply

once the officers attempted to arrest him. It is clear from the video that the

officers attempted to arrest Crane peacefully, but he refused to cooperate.

Bowden first told Crane to step out of the car and within one minute she

informed him that there was an outstanding warrant for his arrest. Two

minutes later, Roper entered the vehicle and applied physical force, grabbing

Crane, and pointing his gun at him. The other officers continued to order

51

Aguirre v. City of San Antonio, 995 F.3d 395, 408 (5th Cir. 2021).

52

Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977).

53

Deville, 567 F.3d at 167.

54

Tucker v. City of Shreveport, 998 F.3d 165, 178 (5th Cir. 2021), cert. denied, 142 S.

Ct. 419 (2021).

55

Deville, 567 F.3d at 167.

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Crane to turn off the vehicle. On the present record, Roper shot Crane within

30 seconds of entering Crane’s vehicle, as Crane reached to turn off the

vehicle. The car was in park and Crane pressed the accelerator to relieve the

pressure on his neck. Taking the facts as we must, a jury may well conclude

that it was not reasonable for Roper to believe that Crane was attempting to

flee or that any such attempt to do so posed a threat to life. Additionally,

“officers must assess not only the need for force, but also ‘the relationship

between the need and the amount of force used.’” 56 The only confirmed

warrants against Crane were for misdemeanors. A jury could reasonably find

that the degree of force the officers used was not justifiable under the

circumstances. This factor favors Crane. In sum, with all three of the Graham

factors favoring Crane, Crane prevails.

Crane argues, notwithstanding the Graham factors, that Roper

created the situation by escalating the confrontation—entering the car and

grabbing Crane. But our precedent dictates that the threat be examined only

at the moment deadly force is used and that an officer’s conduct leading to

that point is not considered. 57 Roper’s actions prior to the moment he used

deadly force, escalatory as they were, cannot be considered. The issue is not

whether Roper created the need for deadly force, the issue is whether there

was a reasonable need for deadly force.

56

Deville, 567 F.3d at 167 (quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir.

1999)).

57

Serpas, 745 F.3d at 772. We recognize a split among the Circuits as to whether

the officers’ actions leading up to the shooting is relevant for purposes of an excessive force

inquiry. Compare id. (“[A]ny of the officers’ actions leading up to the shooting are not

relevant for the purposes of an excessive force inquiry in this Circuit.”); with Allen v.

Muskogee, 119 F.3d 837, 840 (10th Cir. 1997) (considering an officer’s reckless and

deliberate conduct in creating the need to use force to determine the reasonableness of the

force).

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Under the Graham factors, Roper’s use of deadly force was

unreasonable. Because Roper’s use of force in this situation was

unreasonable, violating Crane’s Fourth Amendment right, we now turn to

the clearly established prong.

B.

The second step of the qualified immunity inquiry is asking “whether

the violated constitutional right was clearly established at the time of the

violation.” 58 The purpose of this inquiry is to determine whether the officer

“had fair notice that [his] conduct was unlawful.” 59

“It has long been clearly established that, absent any other

justification for the use of force, it is unreasonable for a police officer to use

deadly force against a fleeing felon who does not pose a sufficient threat of

harm to the officer or others.” 60 This applies not only to a felon fleeing on

foot, 61 but also to one fleeing in a motor vehicle. 62 We note that the Supreme

Court and this court decline to apply Garner with a high-level of generality.63

While “[w]e do not require a case directly on point, . . . existing precedent

must have placed the statutory or constitutional question beyond debate.” 64

58

Lytle, 560 F.3d at 417.

59

Brosseau, 543 U.S. at 198.

60

Lytle, 560 F.3d at 417.

61

Garner, 471 U.S. at 20–21.

62

Lytle, 560 F.3d at 417–18.

63

See, e.g., Brosseau, 543 U.S. at 199; Harmon, 16 F.4th at 1166.

64

Ashcroft, 563 U.S. at 741; see also Trent v. Wade, 776 F.3d 368, 383 (5th Cir. 2015)

(“The law can be clearly established despite notable factual distinctions between the

precedents relied on and the cases then before the Court, so long as the prior decisions gave

reasonable warning that the conduct then at issue violated constitutional rights.” (quoting

Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir.2004) (en banc))).

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The central concept is that of “fair warning,” 65 in which “the contours of

the right in question are ‘sufficiently clear that a reasonable official would

understand that what he is doing violates that right.’” 66 We have recognized

that “qualified immunity will protect ‘all but the plainly incompetent or

those who knowingly violate the law.’” 67 Here, precedent provided Roper

with fair notice that using deadly force on an unarmed, albeit non-compliant,

driver held in a chokehold in a parked car was a constitutional violation

beyond debate.

At the time of Roper’s use of deadly force, “the law was clearly

established that although the right to make an arrest ‘necessarily carries with

it the right to use some degree of physical coercion or threat thereof to effect

it,’” 68 the constitutionally “permissible degree of force depends on the

severity of the crime at issue, whether the suspect posed a threat to the

officer’s safety, and whether the suspect was resisting arrest or attempting to

flee.” 69 In Garner, the Supreme Court made clear that “[w]here the suspect

poses no immediate threat to the officer and no threat to others, the harm

resulting from failing to apprehend him does not justify the use of deadly

force to do so.” 70

Here, under Crane’s account, Crane was shot while he was held in a

chokehold in a parked car while evading arrest for several confirmed

65

Trent, 776 F.3d at 383.

66

Breen v. Texas A&M Univ., 485 F.3d 325, 338 (5th Cir. 2007), withdrawn in part

on reh’g, 494 F.3d 516 (5th Cir. 2007) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).

67

Harmon, 16 F.4th at 1167 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

68

Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008) (footnote omitted) (quoting

Saucier, 533 U.S. at 201–02).

69

Id.

70

Garner, 471 U.S. at 11.

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misdemeanors and an unconfirmed felony parole violation. Roper was on

notice that the use of deadly force is objectively reasonable except in only one

circumstance, where an officer has “a reasonable belief that he or the public

was in imminent danger.” 71 As previously discussed, Roper’s alleged belief

that Crane had a gun was not reasonable, nor was his belief that a parked car

posed a danger to himself, the passengers, or the other officers standing on

the side of the car. When we accept the facts as we must, this case is an

obvious one. 72 “While the Fourth Amendment’s reasonableness test is ‘not

capable of precise definition or mechanical application,” 73 the test is clear

enough that Roper should have known he could not use deadly force on an

unarmed man in a parked car.

Because the facts as interpreted in the light most favorable to Crane

indicate a violation of a clearly established right and because material facts

are in dispute, we hold the district court erred in granting summary judgment

to Roper.

C.

In holding that Roper did not violate Crane’s constitutional right, the

district court concluded that the City could not be liable and dismissed

Crane’s claims. Because we have determined that disputed factual issues are

material as to whether Roper is entitled to qualified immunity, we lack

71

Flores v. City of Palacios, 381 F.3d 391, 402 (5th Cir. 2004).

72

See Roque v. Harvel, 993 F.3d 325, 335 (5th Cir. 2021) (“[I]in an obvious case,

general standards can ‘clearly establish’ the answer, even without a body of relevant case

law.” (cleaned up) (quoting Brosseau, 543 U.S. at 199)); see also Darden, 880 F.3d at 733

(“[I]n an obvious case, the Graham excessive-force factors themselves can clearly establish

the answer, even without a body of relevant case law.”).

73

Bush, 513 F.3d at 502 (quoting Graham, 490 U.S. at 396).

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jurisdiction to determine the City’s liability and remand to the district court

for further proceedings consistent with this opinion. 74

V.

We turn to the claims of the three passengers—Jefferson, Valencia

Johnson, and Z.C.—against Roper and the City, suing under § 1983 and

claiming that Roper’s actions violated their Fourth Amendment rights. The

passengers argue that they are entitled to damages under two theories of

liability.

First, they claim that they suffered emotional trauma by witnessing

the excessive use of force against Crane. But witnessing the use of force is not

enough. “Section 1983 imposes liability for violations of rights protected by

the Constitution, not for violations of duties of care arising out of tort law.” 75

“Negligent infliction of emotional distress is a state common law tort; there

is no constitutional right to be free from witnessing [ ] police action.” 76 Thus,

bystanders may recover when they are subject to an officer’s excessive use of

force such that their own Fourth Amendment right is violated; however,

bystanders cannot recover when they only witness excessive force used upon

another. 77

Second, the passengers claim that Roper used excessive force when

he pointed his gun at them while entering the car, leading to psychological

74

See Lytle, 960 F.3d at 418.

75

Baker v. McCollan, 443 U.S. 137, 146 (1979).

76

Grandstaff v. City of Borger, 767 F.2d 161, 172 (5th Cir. 1985).

77

Harmon, 16 F.4th at 1168 (“Bystander excessive force claims can only succeed

when the officer directs the force toward the bystander—that is to say, when the bystander

is not really a bystander.”).

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injuries. 78 The district court dismissed the passengers’ claims for failing to

“establish that they were the objects of Roper’s actions or that Roper’s

actions physically injured them.” 79

There is no express requirement for a physical injury in an excessive

force claim, 80 but even if the passengers stated a plausible claim for

psychological injuries, Roper is entitled to qualified immunity. “Fourth

Amendment jurisprudence has long recognized that the right to make an

arrest or investigatory stop necessarily carries with it the right to use some

degree of physical coercion or threat thereof to effect it.” 81 We previously

held that pointing a gun can be reasonable given the circumstances, 82 and that

“the momentary fear experienced by the plaintiff when a police officer

pointed a gun at him did not rise to the level of a constitutional violation[.]” 83

Here, there was no unreasonable use of force against the passengers, so no

constitutional injury occurred.

As we affirm the dismissal of the passengers’ claims against Roper for

a failure to state a claim in the absence of a constitutional injury, we also

affirm the dismissal of their claims against the City.

78

Roper argues that the passengers waived this argument, but the complaint states

that the passengers sought damages for the psychological injuries arising both from

witnessing Crane’s death and as a result of Roper’s excessive force, preserving this

argument.

79

Crane v. City of Arlington, 2020 WL 4040910, at *6 (N.D. Tex. July 16, 2020).

80

Flores, 381 F.3d at 400–01.

81

Graham, 490 U.S. at 396.

82

Hinojosa v. City of Terrell, 834 F.2d 1223, 1230–31 (5th Cir. 1988).

83

Dunn v. Denk, 54 F.3d 248, 250 (5th Cir. 1995), on reh’g en banc, 79 F.3d 401 (5th

Cir. 1996) (discussing Hinojosa, 834 F.2d at 1230–31).

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****

We AFFIRM the dismissal of the passengers’ claims and VACATE

the grant of summary judgment to Roper and the City as to Crane’s claims

and DISMISS those claims for want of jurisdiction.

22