Dawes v. City of Dallas

Case: 22-10876 Document: 79-1 Page: 1 Date Filed: 04/03/2024

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

____________ FILED

April 3, 2024

No. 22-10876 Lyle W. Cayce

____________ Clerk

Mary Dawes, Individually and the Administrator of the Estate of

Decedent Genevive A. Dawes; Alfredo Saucedo; Virgilio

Rosales,

Plaintiffs—Appellants,

versus

City of Dallas; Christopher Hess; Jason Kimpel,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:17-CV-1424

______________________________

Before Dennis, Engelhardt, and Oldham, Circuit Judges.

Per Curiam:*

On January 18, 2017, Dallas police shot and killed Genevieve Dawes.

This federal civil rights suit followed. Defendants prevailed at summary

judgment in the court below in a lengthy and careful decision. We agree with

the district court that the officer defendants did not violate clearly established

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*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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law, and so are entitled to qualified immunity. But we remand the claims

against the City of Dallas for further consideration.

I.

A.

Qualified immunity cases present two questions. First, did the officers

violate a constitutional right? And second, was the right at issue clearly

established at the time of the officers’ alleged violation? See Morrow v.

Meacham, 917 F.3d 870, 874 (5th Cir. 2019). To reverse the district court in

favor of plaintiffs, we must answer “yes” to both questions. We may

approach them in either order, and we need not reach both if one proves

dispositive. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).

This case reaches us after summary judgment. We review a district

court’s grant of summary judgment de novo. See Aguirre v. City of San

Antonio, 995 F.3d 395, 405 (5th Cir. 2021). Summary judgment is proper

when “the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A dispute is “material” only when it could change the

judgment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

585−86 (1986). And a dispute is “genuine” only when the evidence could

support a reasonable jury’s decision to resolve that dispute against the

movant. See Westfall v. Luna, 903 F.3d 534, 546 (5th Cir. 2018) (relying on

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

facts are documented by video camera, we may take them “in the light

depicted by the videotape.” See Scott v. Harris, 550 U.S. 372, 381 (2007).

B.

Because excessive force claims are “necessarily fact intensive,” we

narrate in some detail. Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009).

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On the evening of January 17, 2017, Genevieve Dawes and her

husband, Virgilio Rosales, parked a black Dodge Journey in the back corner

of an apartment complex parking lot and went to sleep in the vehicle. A

resident called police and reported a suspicious vehicle. Police ran the tag and

were told the car was stolen.1 Officers were dispatched to the scene around

5:00 AM on January 18.

Officers Christopher Alisch and Zachary Hopkins arrived at the

complex first, shortly after 5:00 AM. They found the Journey vehicle boxed

in on three of four sides—by fences to the front and left and by another car

to the right. They approached with weapons drawn, calling to the driver and

repeatedly demanding that the occupants “put your hands out the window.”

As they shouted, four more officers arrived, including Christopher Hess and

Jason Kimpel.

The officers conferred, expressing uncertainty as to whether the

Journey was still occupied. The windows of the car were fogged; one officer

remarked that “you can’t see shit.” Around this time, Hess pulled a police

cruiser closer to the Journey. He sounded the horn and turned on the

cruiser’s spotlight.

Hopkins tried to open the right rear door of the Journey and found it

locked. Hopkins then moved around behind the Journey and stood near its

rear left taillight. Meanwhile, another officer discerned and announced that

the Journey was in fact occupied. During the first minute that elapsed after

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1

Rosales would later say that Dawes purchased the car from someone else and did

not know it was reported stolen, an assertion defendants do not contest. But our analysis

centers on the perspective of responding officers at the time of the relevant confrontation.

See Graham v. Connor, 490 U.S. 386, 396 (1989) (instructing that we consider the

perspective of the “officer on the scene”). In other words, it does not matter whether the

Journey was stolen or who stole it; it matters only that the officers were told the car was

stolen.

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this discovery, officers shouted commands to the effect of “show your

hands” eight times and twice identified themselves as Dallas police.

While the officers were shouting, Hopkins and Kimpel stood just

behind the Journey. Hopkins decided to retreat and said, “C’mon Kimpel,

back up a little bit.” The officers retreated but remained in the path directly

behind the Journey.

Eight seconds after Hopkins’s statement, the Journey’s engine

ignited. Hess leapt into a police cruiser and said “watch out” as he pulled the

cruiser behind the rear bumper of the otherwise boxed-in Journey.

The Journey reversed and collided with Hess’s cruiser. The Journey

then accelerated forward and hit the fence in front of it. This impact occurred

at low speed, but the sound of the impact is audible on Hopkins’s body

camera, and the jolt of the fence visibly shook the surrounding trees.

Kimpel and Hopkins still stood behind the Journey at the moment of

the Journey’s impact against the fence. Kimpel said “watch out watch out

watch out,” and moved laterally out of the Journey’s path and towards other

officers near the police cruiser. Kimpel passed in front of Hopkins (and could

not see Hopkins) as Kimpel traveled.

Hess, after the Journey hit the cruiser, jumped out from the driver’s

seat and trained his weapon on the Journey. He and other officers shouted

several more times for the Journey’s occupants to show their hands.

After hitting the fence, the Journey immediately reversed. As it did so,

Hess fired twelve rounds, all within a five second interval. Kimpel fired one

round, simultaneous with Hess’s sixth shot.

Kimpel later stated that he fired his weapon “in fear of Officer

Hopkins’ life.” Hess said he fired to protect both Hopkins and Kimpel, who

he believed were in the path of the reversing Journey.

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Hopkins’s bodycam reveals that, although he was not in Hess’s or

Kimpel’s immediate field of view, he had moved out of the Journey’s path

several seconds before Hess first fired.

Four of Hess’s bullets struck Dawes, who later died at the hospital.

None struck Rosales. Kimpel’s round struck neither person.

Rosales and Dawes’s estate filed a 42 U.S.C. § 1983 excessive force

suit against Hess, Kimpel, and the City of Dallas. See Tennessee v. Garner, 471

U.S. 1, 7 (1985) (an officer’s use of deadly force is a “seizure” within the

meaning of the Fourth Amendment). Hess and Kimpel prevailed on qualified

immunity grounds at summary judgment. This appeal followed.

II.

The Supreme Court’s approach to qualified immunity reflects

concern that, absent privilege for in-the-moment street decision-making,

officers would be deterred from “the unflinching discharge of their duties.”

Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (quotation omitted).

Accordingly, qualified immunity shields officers from civil suit unless they

had “fair notice that [their] conduct was unlawful.” Nerio v. Evans, 974 F.3d

571, 574 (5th Cir. 2020) (quotation omitted). That notice requirement means

a § 1983 plaintiff must show that the defendant officer violated “clearly

established law.” Id.

To make that showing in the excessive force context, a plaintiff must

“identify a case where an officer acting under similar circumstances was held

to have violated the Fourth Amendment.” District of Columbia v. Wesby, 583

U.S. 48, 64 (2018) (quotation omitted).2 That is not easy, because clearly

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2

A plaintiff might also succeed without a governing precedent on extraordinarily

egregious facts where the defendant officer faced a complete absence of exigency. See

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established law cannot be defined “at a high level of generality.” Ashcroft v.

al-Kidd, 563 U.S. 731, 742 (2011). Instead, a precedent must “squarely

govern[]” the facts of the plaintiff’s claim; facts that fall in the “hazy border

between excessive and acceptable force” result in qualified immunity.

Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per curiam) (quotation

omitted).

How clear must fair warning be? “[F]or a right to be clearly

established, existing precedent must have placed the statutory or

constitutional question beyond debate.” White v. Pauly, 580 U.S. 73, 79

(2017) (per curiam) (quotation omitted). The law must be clear enough that,

“in the blink of an eye, in the middle of a high-speed chase—every reasonable

officer would know it immediately.” Morrow, 917 F.3d at 876 (emphasis

added); see also Reichle v. Howards, 566 U.S. 658, 664 (2012) (discussing the

“every reasonable official” standard); Harmon v. City of Arlington, 16 F.4th

1159, 1165–66 (5th Cir. 2021) (same).

Plaintiffs here present several cases that they contend clearly

established the law as applied to Hess and Kimpel’s specific actions. In part,

they rely on seminal Fourth Amendment cases like Tennessee v. Garner, 471

U.S. 1 (1985), and Graham v. Connor, 490 U.S. 386 (1989). But neither of

those cases involved a nighttime confrontation between officers and the

occupants of a reportedly-stolen vehicle, much less did they involve suspects

who backed their reportedly-stolen vehicle into a police cruiser after refusing

numerous commands from police. The Supreme Court has repeatedly made

clear that we may not rely on general rule statements in Garner and Graham

to clearly establish the law in far-afield cases like ours. See Mullenix v. Luna,

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Ducksworth v. Landrum, 62 F.4th 209, 218 (5th Cir. 2023) (Oldham, J., concurring in part

and dissenting in part) (discussing the current state of obvious-case doctrine).

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577 U.S. 7, 12−13 (2015) (per curiam); Kisela v. Hughes, 584 U.S. 100, 105

(2018) (per curiam).

Plaintiffs also point to several circuit precedents. Even assuming our

cases can clearly establish the law, see Boyd v. McNamara, 74 F.4th, 662, 669–

70 (5th Cir. 2023), the plaintiffs’ citations are unavailing. One, Newman v.

Guedry, 703 F.3d 757 (5th Cir. 2012), concerned an alleged tasing and beating

of a man not in a vehicle. Id. at 759–60. A second, Edwards v. Oliver, 31 F.4th

925 (5th Cir. 2022), post-dated the events of this case and so could not have

given Hess and Kimpel fair notice of their legal obligations. See Pearson, 555

U.S. at 232 (the law must be clearly established “at the time of the

defendant’s alleged misconduct”). A third, Baker v. Coburn, 68 F.4th 240

(5th Cir. 2023), also post-dated the events of this case. In any event, Baker

did not conclude that an official violated the Fourth Amendment, so it cannot

clearly establish law. See id. at 251; Wesby, 583 U.S. at 64. Moreover, Baker

involved several fact disputes, including whether shots were fired after a

vehicle was, in daylight and in the plain view of every responding officer,

traveling away from officers when they fired. Id. at 248−49. Here, the facts

exhaustively documented by multiple cameras cannot be disputed. Shots

were fired in the dead of night as a vehicle traveled towards a location an

officer had stood in seconds before. Baker therefore cannot “squarely

govern[]” today’s facts. Brosseau, 543 U.S. at 201.

Plaintiffs rely most heavily on Lytle v. Bexar County, 560 F.3d 404 (5th

Cir. 2019). Like Baker, Lytle did not find a constitutional violation, and so it

did not clearly establish law. Wesby, 583 U.S. at 64; see also Nerio, 974 F.3d at

575. And Lytle featured significant fact disputes that distinguish it from this

case. In Lytle, the panel resolved those disputes in favor of the plaintiff for

the purposes of evaluating summary judgment. Lytle, 560 F.3d at 409 (“We

therefore adopt Lytle’s version of the facts.”). What were Lytle’s assumed

facts? In broad daylight, with no other officers present, and without first

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giving a warning, an officer fired at a vehicle “three to four houses down the

block.” Id. This case could hardly be more different because officers gave

several warnings, shot their weapons in close quarters, in the predawn

darkness, and with officers in the harm’s way just seconds before the shots

were fired.

For its part, the dissenting opinion correctly recognizes that “Lytle

itself cannot form the clearly established law in this case.” Post, at 6 (Dennis,

J., dissenting). The dissenting opinion instead points to two out-of-circuit

precedents to clearly establish the relevant law. Post, at 7–8 (Dennis, J.,

dissenting). This contention is foreclosed by our precedent, however. In

McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002), we recognized

that six circuits sanctioning “some version” of the question at issue was

insufficient to give officers “fair warning.” Id. at 330; see also Vincent v. City

of Sulphur, 805 F.3d 543, 549 (5th Cir. 2015) (“[T]wo out-of-circuit cases and

a state-court intermediate appellate decision hardly constitute persuasive

authority adequate to qualify as clearly established law sufficient to defeat

qualified immunity in this circuit.”); id. at 550 (“[T]wo cases from other

circuits and one from a stayed intermediate court do not, generally speaking,

constitute persuasive authority defining the asserted right at the high degree

of particularity that is necessary for a rule to be clearly established despite a

lack of controlling authority.”); Morrow, 917 F.3d at 879-80 (holding that two

Sixth Circuit cases could not establish a robust consensus and relying in part

on McClendon).

III.

The district court’s grant of summary judgment to the City of Dallas

rested on its alternative holding that, if the law was clearly established, the

officers nevertheless committed no constitutional violation. See City of

Canton v. Harris, 489 U.S. 378, 385 (1989) (requiring a constitutional rights

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violation for § 1983 claims against a municipality). Because we do not reach

the district court’s alternative holding, we remand the claims against Dallas

to the district court for further consideration. On remand, the district court

may reiterate its no rights-violation finding, may reconsider that finding, or

may consider any other aspect of the plaintiffs’ claims against the City of

Dallas.

* * *

The grant of summary judgment to the defendant officers is

AFFIRMED. The grant of summary judgment to the City of Dallas is

REMANDED.

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James L. Dennis, Circuit Judge, concurring in part and dissenting in part:

While I concur in the majority opinion’s remand of plaintiffs’ claims

against the City of Dallas, I dissent from the majority’s decision to affirm the

district court’s entry of summary judgment in favor of the two individual

officers. Plaintiffs’ Fourth Amendment claims against Hess and Kimpel are

based on the officers’ use of deadly force against Dawes and Rosales in the

absence of any danger to themselves or others. The majority’s approval of

the district court’s misguided judgment extending qualified immunity to

Hess and Kimpel is not only incorrect as a matter of law, but also serves to

condone the inexcusable incompetence displayed by these two officers—

both of whom were suspended or terminated from their positions as police

officers for having violated their department’s use-of-force policy. I

respectfully dissent.

* * *

Taking the evidence in the light most favorable to them, plaintiffs have

met their burden of demonstrating that: (1) the officers violated Dawes’s and

Rosales’s constitutional right to be free from unreasonably excessive force;

and (2) Dawes’s and Rosales’ right to be free from such force under these

facts was both obvious and clearly established. Morrow v. Meachum, 917 F.3d

870, 874 (5th Cir. 2019); Scott v. Harris, 550 U.S. 372, 378 (2007) (“[C]ourts

are required to view the facts and draw reasonable inferences in the light most

favorable” to the plaintiff when assessing assertion of qualified immunity at

the summary judgment stage) (internal citation omitted). Here, we have the

benefit of video footage capturing the incident, which makes clear that the

“videotape quite clearly contradicts” the officers’ dangerous belief that

deadly force—indeed thirteen shots fired—was necessary to stop a boxed-in

vehicle from reversing at a crawling speed of under three miles per hour when

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the officers could have, and in fact did, use a squad car to block Dawes’s

vehicle—making it impossible for her to flee. Scott, 550 U.S. at 378.

First, plaintiffs presented summary judgment evidence that could lead

a reasonable jury to conclude that the officers violated Dawes’s and Rosales’s

constitutional rights. To prevail on their Fourth Amendment excessive force

claims, plaintiffs must show “(1) an injury, (2) which resulted directly and

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

of which was clearly unreasonable.” Ontiveros v. City of Rosenberg, 564 F.3d

379, 382 (5th Cir. 2009). It is undisputed that the officers’ use of deadly force

caused injuries to Dawes and Rosales. The central inquiry is, accordingly,

whether the officers exercised force that was unreasonably excessive. The

Supreme Court has instructed courts to use the following factors to

determine whether an officer used unreasonably excessive force: (1) “the

severity of the crime at issue[;]” (2) “whether the suspect poses an

immediate threat to the safety of the officers or others[;]” and (3) whether

the suspect was “actively resisting arrest or attempting to evade arrest by

flight.” Graham v. Connor, 490 U.S. 386, 396 (1989). The reasonableness of

the officers’ use of force is assessed under the “totality of the

circumstances.” Tennessee v. Garner, 471 U.S. 1, 8-9 (1985).

Here, the evidence, when construed in the light most favorable to

plaintiffs, may lead a reasonable jury to conclude that the officers’ use of

force was excessive and unreasonable under the totality of the circumstances.

While the severity of plaintiffs’ suspected crime of stealing a vehicle—a

felony under Texas law—may weigh in favor of the officers, the other two

Graham factors weigh heavily against a finding that the officers’ use of force

was reasonable. The video footage, testimony, and expert analysis at the very

least demonstrate the existence of genuine disputes of material facts that

Dawes posed no immediate danger to officers and was not actively resisting

or attempting to flee at the time she was killed. See, e.g., Flores v. City of

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Palacios, 381 F.3d 391, 399 (5th Cir. 2004) (“It is objectively unreasonable to

use deadly force ‘unless it is necessary to prevent [a suspect’s] escape and

the officer has probable cause to believe that the suspect poses a significant

threat of death or serious physical injury to the officer or others.’”) (quoting

Garner, 471 U.S. at 3); Lytle v. Bexar Cnty., 560 F.3d 404, 417-18 (5th Cir.

2009) (it is unreasonable to use deadly force against felony suspect who is

fleeing by car if suspect does not pose immediate, substantial threat of harm

to officer or others).

For example, far from “refusing” to follow the officers’ commands,

as the majority finds when it impermissibly puts on its “juror” hat, plaintiffs

have presented evidence that they did not hear the officers’ commands since

they were asleep—it was around three in the morning and the officers only

made their commands at a distance. Even if the officers subjectively believed

Dawes to be attempting to flee, the video evidence reveals that she was boxed

in and would not have been able to escape—especially at the slow speed at

which her vehicle was moving. Indeed, plaintiffs presented expert

testimony—supported by the video footage—that Dawes was driving at a

speed of under three miles per hour when the officers supposedly believed

her to be fleeing. Hess testified that Dawes’s vehicle was “slowly revving”

and that he did not perceive her to be attempting to reverse at a high level of

speed. Even if the officers believed Dawes to be making a slow, futile attempt

to flee by reversing slowly while boxed-in by other cars, our caselaw is clear

that it is unjustified to use deadly force against a fleeing felon who poses no

safety risk. Garner, 471 U.S. at 11 (use of deadly force to prevent the escape

of a felony suspect who poses no immediate threat to the officer or threat to

others is unjustified).

The slow speed of Dawes’s vehicle also belies the officers’ assertion

that they believed she posed any safety risk—much less the type of

“substantial and immediate” threat required to justify use of deadly force.

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Scott, 550 U.S. at 386 (use of deadly force justified where suspect poses “a

substantial and immediate risk of serious physical injury to others”); see also

Garner, 471 U.S. at 11 (“Where the suspect poses no immediate threat to the

officer . . . the harm resulting from failing to apprehend him does not justify

the use of deadly force to do so.”). It is undisputed that no one was in the

path of Dawes’s slow-moving vehicle at the time the officers killed Dawes

and injured Rosales; indeed, both officers testified that when they used

deadly force they did not observe anyone in danger and did not tell anyone to

get out of the way. In his deposition testimony, Hess agreed that Dawes’s

vehicle was moving at less than three miles per hour when he fired his first

round of shots, and that any officer in the path of Dawes’s vehicle could have

moved out of the way by the time he fired his second round of shots. Reyes v.

Bridgwater, 362 F. App’x 403, 409 (5th Cir. 2010) (“The cases on deadly

force are clear: an officer cannot use deadly force without an immediate

serious threat to himself or others.”).

Even if the officers incorrectly believed other officers to be

endangered, their subjective beliefs are wholly irrelevant to the Fourth

Amendment inquiry into whether a “reasonable officer on the scene” would

have believed that a boxed-in vehicle moving at less than three miles per hour

presented an imminent, significant danger to other officers. Graham, 490

U.S. at 396–99. Moreover, the City of Dallas found Kimpel’s claim that he

believed other officers to be in danger untruthful and suspended him for

thirty days—calling into question the reliability of the officers’ after-the-fact

assertion that they shot into the Dawes vehicle thirteen times to protect other

officers from a car moving at slow, near walking speed.1 While the court

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1

While the City’s finding that the officers violated the police department’s use-of-

force policy after Dawes’s death cannot alone establish a constitutional violation, the City’s

finding that one of the officers lied in asserting that he believed other officers to be in danger

at the time he fired eleven shots at Dawes is certainly relevant to the credibility of the

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“must ‘be cautious about second-guessing [the] police officer’s assessment’

of the threat level[,]” we certainly should not be in the business of accepting

implausible ad hoc explanations for an officer’s objectively unreasonable use

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

2021) (quoting Ryburn v. Huff, 565 U.S. 469, 477 (2012)). A jury—not

judges—should hear the evidence and weigh the credibility of Kimpel’s

testimony. Here, the video footage, expert testimony, and the officers’

admissions could lead a reasonable jury to conclude that the officers violated

Dawes’s and Rosales’s Fourth Amendment rights by using deadly force in

the absence of any objective threat to officer safety.

Second, “a body of relevant case law” gave the two officers notice that

their unwarranted use of deadly force violated the Constitution. Joseph v.

Bartlett, 981 F.3d 319, 330 (5th Cir. 2020) (internal citation omitted). While

the majority is certainly correct that “[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,” the “focus” of the qualified immunity

analysis is whether the officer had “fair notice” that his conduct was

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

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officers’ supposed motives for using deadly force. Moreover, the City’s finding that the

officers acted unreasonably in using deadly force supports plaintiffs’ contention that the

officers’ use of force was not reasonable. Hope v. Pelzer, 536 U.S. 730, 741-42 (2002)

(considering an Alabama Department of Corrections regulation in determining that

conduct violated “clearly established statutory or constitutional rights of which a

reasonable person would have known”) (internal citation omitted); Rice v. ReliaStar Life

Ins. Co., 770 F.3d 1122, 1133 (5th Cir. 2014) (“[T]he fact that [the officer] allegedly failed

to follow departmental policy makes his actions more questionable, because it is

questionable whether it is objectively reasonable to violate such a departmental rule.”); see

also Irish v. Fowler, 979 F.3d 65, 77 (1st Cir. 2020) (“[W]hen an officer disregards police

procedure, it bolsters the plaintiff’s argument . . . that a reasonable officer in the officer’s

circumstances would have believed that his conduct violated the Constitution.”) (cleaned

up).

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omitted) (internal citation omitted); Brosseau v. Haugen, 543 U.S. 194, 198

(2004) (“focus” of qualified immunity analysis is “whether the officer had

fair notice that her conduct was unlawful”); Morgan v. Swanson, 659 F.3d

359, 372 (5th Cir. 2011) (en banc) (“The sine qua non of the clearly-

established inquiry is ‘fair warning.’”) (citing Hope, 536 U.S. at 741). “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.’” Trammell v. Fruge, 868 F.3d 332, 339 (5th

Cir. 2017) (quoting Ramirez v. Martinez, 716 F.3d 369, 379 (5th Cir. 2013)).

Here, clearly established law gave the officers ample warning that

shooting a felony suspect in the absence of any danger to officers or others

violates the Fourth Amendment. As our court noted in Lytle, “[i]t has long

been clearly established that, absent any other justification for the use of

force, it is unreasonable for a police officer to [abruptly] use deadly force

against a fleeing felon who does not pose a sufficient threat of harm to the

officer or others.” Lytle, 560 F.3d at 417-18 (first citing Kirby v. Duva, 530

F.3d 475, 483–84 (6th Cir. 2008); and then citing Garner, 471 U.S. at 11-12);

see also Garner, 471 U.S. at 11 (“Where 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.”). While

Lytle itself cannot form the clearly established law in this case, its rule

statement nonetheless reflects “a body of relevant case law”2 clearly

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2

There is no bar on published circuit precedent constituting clearly established

law. See, e.g., Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (“assuming” without

deciding “that controlling Circuit precedent clearly establishes law for purposes of §

1983”); Wilson v. Layne, 526 U.S. 603, 617 (1999) (plaintiffs must identify “controlling

authority in their jurisdiction at the time of the incident which clearly established the rule

on which they seek to rely” or “a consensus of cases of persuasive authority such that a

reasonable officer could not have believed that his actions were lawful”). Moreover, the

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establishing that the use of deadly force against a suspect fleeing in a motor

vehicle who poses no immediate, serious threat to others violates the Fourth

Amendment. Garner, 471 U.S. 1, 8-9; Kirby, 530 F.3d at 483–84; Vaughan v.

Cox, 343 F.3d 1323, 1333 (11th Cir. 2003); see also Cooper v. Brown, 844 F.3d

517, 525 n.8 (5th Cir. 2016) (where a case “does not constitute clearly

established law for purposes of QI,” it may still “aptly illustrate[] the

established right”).

In Kirby v. Duva, for example, the Sixth Circuit found the decedent’s

Fourth Amendment rights clearly established where officers fired thirteen

rounds at a suspect that they said they believed to be fleeing despite the slow

speed at which he had been reversing his car at the time he was killed by

police. 530 F.3d at 483–84. Despite the significant differences in the

narratives provided by plaintiffs and defendants, on summary judgment, the

Sixth Circuit properly credited plaintiffs’ version of events to find that it was

clear enough to the officers that their use of deadly force during a roadside

execution of a search warrant was unconstitutional where (1) it was unclear

the suspect heard the officers’ orders to exit the car; (2) the suspect’s vehicle

was sandwiched on the side of the road and reversed in an apparent attempt

to pull out of the parallel parking position; (3) the vehicle was “not going very

fast”(seven to eight miles per hour) at the time it allegedly reversed towards

an officer; (4) and “none of the officers was ever in harm’s way.” Id. at 479,

484. Here, similarly, it was unclear that Dawes and Rosales heard the

officers’ commands delivered at a distance in the middle of the night,

Dawes’s vehicle was sandwiched between a patrol car, other vehicles, and a

_____________________

Fifth Circuit en banc court has said that clearly established law may be based on

“controlling authority—or a ‘robust consensus of persuasive authority.’” Morgan, 659

F.3d at 371–72 (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741–42 (2011)); see also In re Hidalgo

Cnty. Emergency Serv. Found., 962 F.3d 838, 841 (5th Cir. 2020) (“[A] panel of this court

is bound by circuit precedent.”).

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fence such that she could not flee, the vehicle was moving at under three

miles per hour at the time the officers shot at her, and no officer was ever in

harm’s way.

In Vaughan v. Cox, similarly, the Eleventh Circuit found that it was

objectively unreasonable for an officer to use deadly force to apprehend the

occupant of an allegedly stolen vehicle fleeing at 85 miles per hour on a

highway with a speed limit of 70 miles per hour. 343 F.3d at 1326, 1330. In

“[a]pplying Garner in a common-sense way” to the facts of the case, the

Eleventh Circuit determined that a reasonable officer could have known that

the use of deadly force was unreasonable where: (1) the suspect did not

present a “an immediate threat” to officers or bystanders by driving more

than ten miles over the speed limit; (2) the suspect had made no menacing

gestures at the officers or others besides accelerating; (3) a prior collision

between the suspect’s car and the officer’s vehicle was accidental; and (4)

the suspect’s vehicle was “easily identifiable and could have been tracked”

and apprehended without the use of deadly force. Id. at 1330-31, 1333. Here,

similarly, Dawes did not pose any “immediate”

threat to officers, had made no “aggressive moves” besides attempting to

back out of the parking spot at a snail’s pace, accidentally bumped into the

squad car positioned at an angle close behind her vehicle, and could have

easily been apprehended without the use of deadly force since her vehicle was

boxed-in by the squad car.

In light of Kirby and Vaughan’s guidance in interpreting Garner, it was

clearly established on the date of Dawes’s death that “police officers may not

fire at non-dangerous fleeing felons” where, as here, there are genuine

disputes of material fact as to whether the suspect heard the officers’ prior

commands, the at-issue vehicle was boxed-in such that the suspect could not

flee, the vehicle was not moving fast enough to objectively present any

immediate danger to officers, Dawes made no menacing gestures at the

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officers besides accelerating her car to a speed of approximately three miles

per hour, and any prior collision between the suspect’s vehicle and a police

vehicle was accidental. Garner, 471 U.S. at 11 (in the absence of an

“immediate” threat to officer or bystander safety the “use of deadly force to

prevent the escape of all felony suspects, whatever the circumstances, is

constitutionally unreasonable”); Kirby, 530 F.3d at 483 (“Garner made plain

that deadly force cannot be used against an escaping suspect who does not

pose an immediate danger to anyone.”); Vaughan, 343 F.3d at 1330 (“[A]

reasonable jury could find that [the suspects’] escape did not present an

immediate threat of serious harm to [the police officer] or others on the

road.”); Wilson, 526 U.S. at 617 (explaining that clearly established law may

consist of “a consensus of cases of persuasive authority such that a

reasonable officer could not have believed that his actions were lawful”).

Moreover, the officers’ grotesque, unwarranted killing of Dawes

presents such an egregious case of unreasonable use of deadly force so as to

excuse plaintiffs’ need to identify prior case law. In “an obvious case” like

this one,3 the Graham excessive-force factors themselves can clearly establish

_____________________

3

The majority opinion posits the obvious case exception as requiring both

“extraordinarily egregious facts” and “a complete absence of exigency.” Maj. Op. at 6 n.2

(citing Ducksworth v. Landrum, 62 F.4th 209, 218 (5th Cir. 2023) (Oldham, J., concurring

in part and dissenting in part)). This is incorrect. In Taylor v. Riojas, the Supreme Court

certainly noted the absence of “necessity or exigency” in determining that “any reasonable

officer should have realized” that the conditions of confinement in that case were

unconstitutional, yet nowhere did it purport to make a lack of necessity or exigency a

requirement under the obvious case doctrine. 592 U.S. 7, 9 (2020). In any event, there was

no exigency here justifying the use of deadly force against Dawes given that there was no

“imminent risk of death or serious injury” or that “a suspect [would] escape.” Kentucky v.

King, 563 U.S. 452, 473 (2011) (Ginsburg, J., dissenting) (“Circumstances qualify as

‘exigent’ when there is an imminent risk of death or serious injury, or danger that evidence

will be immediately destroyed, or that a suspect will escape . . . the exception should govern

only in genuine emergency situations.”) (citing Brigham City v. Stuart, 547 U.S. 398, 403

(2006).

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the right at issue without a body of relevant case law. Cooper, 844 F.3d at 524

(“Graham excessive-force factors themselves can clearly establish the

answer, even without a body of relevant case law.”) (internal citation

omitted); see also White v. Pauly, 580 U.S. 73, 79 (2017) (“Of course, general

statements of the law are not inherently incapable of giving fair and clear

warning to officers, but in the light of pre-existing law the unlawfulness must

be apparent.”) (internal citation omitted). As discussed above, a jury could

conclude that no reasonable officer could have believed Dawes was resisting

arrest or posed a safety threat by reversing her car at under three miles per

hours. Therefore, viewing the facts in the light most favorable to Dawes, the

defendant officers acted objectively unreasonable in light of clearly

established law in shooting at an occupied vehicle thirteen times in the

absence of any threat to officer safety.

In light of the use of deadly force deemed unreasonable by the

Supreme Court in Garner and elaborated on by circuit courts, the defendant

officers had “fair notice” that using deadly force against Dawes where no

reasonable officer could conclude that she posed any immediate safety threat

to anyone would violate her Fourth Amendment right to be free from

unreasonably excessive force. Garner, 471 U.S. 1, 8-9; Kirby, 530 F.3d at 483–

84; Vaughan, 343 F.3d at 1333; see also Brosseau, 543 U.S. at 198 (“focus” of

qualified immunity analysis is “whether the officer had fair notice that her

conduct was unlawful”); Hope, 536 U.S. at 731 (“Qualified immunity

operates to ensure that before they are subjected to suit, officers are on notice

that their conduct is unlawful.”). In light of clearly established law, as

announced in Garner and elucidated in Kirby and Vaughn, it is “beyond

debate” that the officers’ use of deadly force against Dawes was

unconstitutional. Ashcroft, 563 U.S. at 741. Moreover, the unconstitutionality

of the officers’ use of deadly force against Dawes was plainly obvious under

the factors laid out in Graham. 490 U.S. at 396. The panel should reverse and

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remand the district court’s grant of qualified immunity in favor of the

defendant officers. I respectfully, but emphatically, dissent.

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