Opposition Brief — Santos Argueta, et al., Petitioners v. Derrick S. Jaradi

No. 23-1257

In the

Supreme Court of the United States

SANTOS ARGUETA, et al.,

Petitioners,

v.

DERRICK S. JARADI,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fifth Circuit

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

William S. Helfand

Counsel of Record

Norman Ray Giles

Lewis Brisbois Bisgaard

& Smith LLP

24 Greenway Plaza, Suite 1400

Houston, Texas 77046

(713) 659-6767

bill.helfand@lewisbrisbois.com

Counsel for Respondent

331322

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

The questions presented are:

1.

Whether the Fourth Amendment prohibits

a police officer from shooting a suspect who

is running in limited lighting holding a semiautomatic pistol augmented with a high-capacity

ammunition extension when the armed suspect

is moving in a way that could indicate to a

reasonable officer the suspect poses an imminent

risk of serious injury or death to an officer or

others.

2.

Whether the Court finds it appropriate to change

its established precedent holding under the

Fourth Amendment that the reasonableness of

force used by an officer is a pure question of law,

to a question of fact that must be decided by a

jury.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

CONST I T U T IONA L A N D STAT U T ORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 1

A. Factual Background . . . . . . . . . . . . . . . . . . . . . . . 1

B. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . 9

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 9

REASONS TO DENY THE PETITION . . . . . . . . . . . 13

A. The Court should not broaden its summary

judgment precedents to require a police

officer to corroborate summary judgment

testimony with a recording . . . . . . . . . . . . . . . . . 13

B. Determining the reasonableness of force an

officer used is a question of law . . . . . . . . . . . . . 21

C. Officer Jaradi’s reaction to the threat he faced

was reasonable under the circumstances

Argueta created . . . . . . . . . . . . . . . . . . . . . . . . . . 24

iii

Table of Contents

Page

D. Officer Jaradi is entitled to judgment in his

favor based on qualified immunity because

he did not violate clearly established law . . . . . 34

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Anderson v. Liberty Lobby,

477 U.S.242 (1986) . . . . . . . . . . . . . . . . . . . 15, 16, 21, 35

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) . . . . . . . . . . . . . . . . . . . . . . . . 34, 36

Batyukova v. Doege,

994 F.3d 717 (5th Cir. 2012) . . . . . . . . . . . . . . . . . . . . 33

Brosseau v. Haugen,

543 U.S. 194 (2004) . . . . . . . . . . . . . . . . . . . . . 35, 37, 38

Carnaby v. City of Houston,

636 F.3d 183 (5th Cir. 2011) . . . . . . . . . . . . . . . . . . . . 33

Celotex Corp. v. Catrett,

477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

City and County of San Francisco v. Sheehan,

575 U.S. 600 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 27, 37

City of Escondido v. Emmons,

586 U.S. 38 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Craven v. Novelli,

2024 U.S. App. LEXIS 10834 (4th Cir. 2024) . . . . . 18

v

Cited Authorities

Page

District of Columbia v. Wesby,

583 U.S. 48 (2018) . . . . . . . . . . . . . . . . . . . . . . 34, 36, 37

Graham v. Connor,

490 U.S. 386 (1989) . . . . . . . . . . . . . . . . . . . . . 25, 27, 35

Luna v. Mullenix,

765 F.3d 531 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Luna v. Mullenix,

773 F.3d 712 (5th Cir. 2014) . . . . . . . . . . . . . . . . . 22, 23

Manis v, Lawson,

585 F.3d 839 (5th Cir. 2009) . . . . . . . . . . . . . . . . . . . . 33

Matsushita Elec. Industrial Co. v.

Zenith Radio Corp.,

475 U.S. 574 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Mullenix v. Luna,

577 U.S. 7 (2015) . . . . . . . . . . . . . . . . . . . . 22, 23, 34, 35

Ontiveros v. City of Rosenberg, Texas,

564 F.3d 379 (5th Cir. 2009) . . . . . . . . . . . . . . . . . 30-34

Orr v. Copeland,

844 F.3d 484 (5th Cir. 2016) . . . . . . . . . . . . . . . . . . . . 19

Plumhoff v. Rickard,

572 U.S. 765 (2014) . . . . . . . . . . . . . . . . . . . . . . . . 23, 35

vi

Cited Authorities

Page

Reese v. Anderson,

926 F.2d 494- (5th Cir. 1991) . . . . . . . . . . . . . . . . . . . 33

Reichle v. Howards,

566 U.S. 658 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Rivas-Villegas,

595 U.S. 1 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . 34-37

Ryburn v. Huff,

565 U.S. 469 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Salazar-Limon v. City of Houston,

826 F.3d 272 (5th Cir. 2016) . . . . . . . . . . . . . . . . . . . . 33

Saucier v. Katz,

533 U.S. 194 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Scott v. Harris,

550 U.S. 372 (2007) . . . . . . . . . . . . . . . . . . . . . 13, 16-22

Tennessee v. Garner,

471 U.S. 1 (1985) . . . . . . . . . . . . . . . . . . . . 24, 25, 33-35

Warden Md. Penitentiary v. Hayden,

387 U.S. 294 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

White v. Pauly,

580 U.S. 73 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

vii

Cited Authorities

Page

Wilson v. Layne,

526 U.S. 603 (1999) . . . . . . . . . . . . . . . . . . . . . . . . 36, 37

Wilson v. Meeks,

52 F.3d 1547 (10th Cir. 2012) . . . . . . . . . . . . . . . . . . . 27

Young v. City of Killeen,

775 F.2d 1349 (5th Cir. 1985) . . . . . . . . . . . . . . . . . . . 33

Statutes and Other Authorities

U.S. Const. Amend. IV . . . . . . 1, 13, 22, 23, 25-27, 35-37

Fed. R. Civ. P. 56 . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17-21

Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 20

Fed. R. Civ. P. 56(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 21

Texas Transportation Code § 547.302 . . . . . . . . . . . . . . . 2

1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the Constitution of the

United States provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

STATEMENT OF THE CASE

A. Factual Background

This lawsuit arises from the fatal shooting of Luis

Argueta as he ran through a residential neighborhood

grasping a semi-automatic handgun with an expanded

ammunition extension protruding from Argueta’s weapon.

(App.1-2) (ROA.13-42, 453, 477, 582, 586). The following

events preceded the shooting:

Galveston police officer Derrick Jaradi and his police

partner-trainee, Officer Matthew Larson, were on duty in

a marked police vehicle. (App.2) (ROA.430-31, 440, 450,

482, 577, 612-13). Officers Jaradi and Larson first saw

Argueta walk away from a convenience store and enter a

Ford Fusion parked in the parking lot. (App.2) (ROA.431,

440, 450, 582). At approximately 2:49 a.m., Officer Jaradi

drove his police vehicle into the same convenience store

parking lot, while observing activities in and around the

store. (App.2) (ROA.431, 440, 450, 456, 487 at 2:55, 488

2

at 1:41, 625-26, 836-37). Shortly after the police vehicle

entered the lot, Argueta drove out of the lot. (App.2)

(ROA.431, 440, 450, 457, 487 at 3:04, 488 at 2:03, 62829, 836-37, 1218). Although the officers were not aware

of the conversations occurring inside Argueta’s vehicle,

Argueta’s passenger Maryann Luna, later reported

Argueta was paranoid because the cops had come. (App.2)

(ROA.581, 1204).

Shortly after Argueta drove out of the lot, Officer

Jaradi drove the police vehicle out of the lot and observed

that Argueta’s vehicle was not in sight. (App.3) (ROA.431,

440, 450, 457, 487 at 3:14, 488 at 2:14, 630-31, 836-37).

While patrolling the surrounding area, Officer Larson

saw Argueta’s vehicle with its lights turned off. (App.3)

(ROA.432, 440, 450, 457, 599 at 0:00, 634-36). As Officer

Jaradi drove in the direction of Argueta’s vehicle, the

officers saw Argueta’s vehicle drive through an alleyway

without headlights or taillights illuminated, in violation of

Texas Transportation Code §547.302. (App.3) (ROA.432,

441, 450-51, 457, 582, 599 at 0:08, 637-38, 836-37, 1231-32).

The patrol car followed Argueta for a few blocks before

officers turned on emergency lights. (App.3).

Based on reasonable suspicion to believe the driver

of the Fusion violated the Texas Transportation Code,

Officer Jaradi drove the police vehicle behind the Fusion

and activated the police car’s emergency lights. (App.3)

(ROA.432, 441, 450-51, 457-58, 582, 599 at 0:35, 642-44,

836-37). Argueta continued driving for roughly two blocks

before he pulled over. (App.3) (ROA.432, 441, 451, 458, 599

at 0:37, 645-47, 836-37, 1235). Officer Jaradi transmitted

over the police radio that Argueta’s vehicle was not

stopping. (ROA.432, 441, 451, 583, 645-46, 1235).

3

Argueta drove until he reached the 5300 block of

Avenue L. (ROA.432, 441, 451, 486 at 0:00, 583, 599 at

1:02, 664). Although the officers were not aware of the

conversations occurring inside Argueta’s vehicle, Luna

later reported Argueta stated he had to go, he had to run,

even though Luna asked Argueta to stay inside his vehicle.

(ROA.452, 581). When the Fusion stopped, Argueta

stepped out of the driver’s door and ran diagonally in

front of the patrol vehicle across the street. (App.3,

9) (ROA.433, 444, 451, 453, 458, 583, 599 at 1:05, 666).

Argueta’s movement from the Fusion is “illuminated

only minimally by streetlight and very briefly by police

flashlights.” ROA.9.

As he exited his vehicle, Argueta initially held his

right arm and hand down alongside the right side of his

body, as if Argueta was trying to conceal his right arm

and hand from officers. (App.3, 9, 14, 14, 16, 17) (ROA.432,

441, 451, 599 at 1:06, 600, 645-46). Officer Larson exited

the patrol vehicle on the passenger side to pursue Argueta.

(ROA.433, 442, 451, 458, 485 at 0:04, 486 at 0:06, 583, 599

at 1:08, 836-37, 1235-36).

Simultaneously, Officer Jaradi stepped out of the

driver’s door of the patrol vehicle. (ROA.433, 442, 451,

458, 485 at 0:04, 583, 647-48, 836-37, 1235-36). After

which Argueta ran diagonally in front of Officer Jaradi

across the street toward a dark parcel of land in a

residential neighborhood. (App.9) (ROA.433, 442, 451,

485 at 0:05, 583, 599 at 1:08, 647-48, 836-37, 1235-36). As

Argueta ran through the neighborhood, he was grasping

a semi-automatic handgun with an expanded ammunition

extension protruding from his weapon. (App.4, 15, 14, 17)

(ROA.433-35). As Argueta ran, he concealed his right

4

hand from Officer Jaradi’s view by Argueta keeping his

right hand near his right hip with the core of his body

between him and Officer Jaradi. (App.3, 9, 14, 16, 17).

1, 2

3

1. ROA.485 at 0:06, 600.

2. ROA.485 at 0:06, 600.

3. ROA.485 at 0:06, 601.

5

4

Officer Jaradi was concerned he could not, if necessary,

react in time to stop an attack. (App.3) (ROA.433).

Therefore, to be more prepared to act to defend himself

with his pistol by reducing the time needed to react to a

potentially deadly threat, Officer Jaradi unholstered his

duty firearm and shouted for Argueta to get his hand out

of his pocket. (App.36) (ROA.431-34, 442, 451, 477, 485 at

0:11, 582-83, 651-52, 656-58, 836-37). Sensing the potential

Argueta might attack, Officer Jaradi raised his firearm to

a ready position at his chest and pointed the gun toward

Argueta, who continued to move diagonally. (ROA.433,

442, 451, 485 at 0:07). Two independent witnesses

confirmed hearing police commands for Argueta to “get

down” before Officer Jaradi fired. (App.9) (ROA.452-54).

There are moments when Officer Jaradi’s extended

arms and hands partially blocked some of what the

recorder could view from the body-worn camera affixed

to the front of Officer Jaradi’s shirt. (App.9) (ROA.462-63,

485 at 0:08, 603-07). Nonetheless, still images from frames

of Officer Jaradi’s body-worn camera recordings depict

4. ROA.485 at 0:06, 602.

6

the general direction of Argueta’s path of movement, the

relative positions of Argueta’s body and Officer Jaradi

as Argueta moved laterally in front of Officer Jaradi,

the relative position of Argueta’s right arm and hand

at various points in time when Argueta’s right arm and

hand were concealed from Officer Jaradi’s view entirely.

(ROA.433-34, 451, 485 at 0:08, 600-09). While Argueta

crossed the street in front of Officer Jaradi and reached

the dark lot, when Argueta extended his right foot forward

Argueta’s chest was facing Officer Jaradi, and as Argueta

extended his left foot forward Argueta’s back was facing

Officer Jaradi. (ROA.485 at 0:07, 605).

5

6

5. ROA.485 at 0:07, 605.

6. ROA.485 at 0:08.

7

Recordings made from the body-worn camera attached

at chest-level to Officer Jaradi’s shirt do not provide the

identical point of view as Officer Jaradi’s eyes, which had

a higher vantage point looking over the handgun Officer

Jaradi held in front of his chest, and Officer Jaradi’s

head could swivel much differently than his chest, where

the camera was mounted. (App.9) (ROA.433-35, 485 at

0:08, 600-09). “The bodycam footage is not of the highest

resolution and is filmed from the vantage of [Officer]

Jaradi’s chest rather than eyes, which creates a partially

obscured view of Argueta after [Officer] Jaradi raises his

gun.” (App.9).

Officer Jaradi saw Argueta move his right hand

toward the front of Argueta’s body at which point Officer

Jaradi could see Argueta was holding a handgun with a

high-capacity ammunition extension in his right hand.

(ROA.434, 451, 465). Argueta held his firearm in a position

from which only a slight motion of Argueta’s hand would

have resulted in Argueta’s handgun pointed at Officer

Jaradi had Argueta decided to fire upon Officer Jaradi, at

which point Officer Jaradi would not have had the ability

to respond in self-defense. (ROA.434, 451, 464-65).

Officer Jaradi, who was trained regarding the

scientific principle of action versus reaction, fired two

shots at Argueta, who was approximately 15 feet away,

within a range to kill or seriously injure Officer Jaradi

with Argueta’s gun. (ROA.434-35, 442, 451, 464-65, 485

at 0:11, 486 at 0:07, 590, 600-08, 652-55, 828-29, 836-37).

Argueta fell onto his back still holding his gun in his right

hand. (ROA.435, 442, 451-52, 485 at 0:12, 486 at 0:11, 583,

608-09, 653-55, 823-25, 836-37, 1237).

8

7

Because Argueta was still holding his gun, Officer

Jaradi shouted for Argueta to put his hands up, drop

the gun, and not reach for it. (ROA.435, 452, 485 at 0:11,

486 at 0:11, 836-37). Initially, Argueta failed to comply.

(ROA.462, 485 at 0:13, 486 at 0:13, 836-37). Officer

Jaradi called for emergency medical service personnel.

(ROA.435, 452, 485 at 0:20, 486 at 0:20, 836-37). Officers

Larson and Jaradi continued to shout commands for

Argueta to drop his gun, in response to which Argueta

ultimately complied. (ROA.435, 442, 452, 485 at 0:28, 486

at 0:23, 823-25, 836-37).

Officer Larson directed Argueta to roll onto his

stomach. (ROA.435, 442, 452, 485 at 0:30, 486 at 0:30, 590,

836-37). Officer Jaradi kicked Argueta’s gun away from

Argueta’s reach. (ROA.435, 442, 452, 485 at 0:46, 486 at

0:43, 590, 836-37). Officer Charles Thompson arrived with

a first aid kit and applied pressure to Argueta’s wound.

(ROA.435, 442, 453, 471). EMS arrived soon thereafter

7. ROA.486 at 0:16, 823.

9

and took Argueta to a hospital. (ROA.442, 452). Argueta

passed away at the hospital. (ROA.452).

B. Procedural History

Santos Argueta, Blanca Granado, Dora Argueta,

Tomas Argueta, and Jelldy Argueta individually and on

behalf of Luis Argueta’s estate filed suit against Officer

Jaradi. (App.2, 4) (ROA.13-42).

Officer Jaradi filed his answer and defenses, including

qualified immunity. (ROA.65-70, 72-89). After discovery

concluded, Officer Jaradi moved for summary judgment.

(App.4) (ROA.380-837, 927-1376, 1393-1418). Officer Jaradi

asserted qualified immunity in his summary judgment

motion. (App.4) (ROA.380-837, 927-1376, 1393-1418).

The district court issued an order denying summary

judgment to Officer Jaradi. (App.4) (ROA.1491-1510).

Officer Jaradi timely filed a notice of interlocutory appeal.

(ROA.1511-1512).

A panel of the United States Court of Appeals for the

Fifth Circuit reversed the district court order denying

summary judgment and rendered judgment in favor of

Officer Jaradi. (App.18).

Petitioners, thereafter, petitioned the Court.

SUMMARY OF THE ARGUMENT

The Court should not grant certiorari because the

first question Petitioners present does not accurately

state a material issue in this litigation, and the Court

10

has previously answered the second question Petitioners

present.

The evidentiary record does not support the factual

premises of Petitioners’ first issue, that Argueta might

be holding a gun while fleeing detention, but Argueta

exhibited no other signs of dangerousness. The evidence

establishes Argueta was holding a gun augmented with

a high-capacity ammunition extension that made the gun

potentially more dangerous.

In addition to the evidence the Fifth Circuit Court

found proved Argueta was holding a gun augmented with

a high-capacity ammunition extension, Officer Jaradi

further testified he saw Argueta holding the gun with the

ammunition extension.

Officer Jaradi testified he saw Argueta moving the

firearm forward and away from his right side where

Argueta had previously concealed it. Officer Jaradi

testified he saw Argueta hold his pistol in a position from

which only a slight motion from Argueta’s hand would have

resulted in his handgun pointed directly at Officer Jaradi,

and had Argueta started to fire, Officer Jaradi would not

have had the ability to act in self-defense.

Without citing evidence supporting the argument,

Petitioners argue a jury might not believe Officer Jaradi’s

testimony and conclude he could not see the gun Argueta

held. But whether Officer Jaradi saw Argueta’s gun or not,

Argueta held the gun.

Petitioners’ first issue also omits a fact that is crucial

to evaluating the reasonableness of Officer Jaradi’s

11

response. Argueta’s actions and Officer Jaradi’s reactions

to Argueta’s conduct occurred in circumstances officers

recognize as low light conditions. Low light conditions

are not no light conditions. The evidence proves light

from a streetlight and police flashlights provided some

illumination. Video evidence demonstrates many of

Argueta’s actions were visible during Argueta’s movement

from his vehicle to the location where he was shot. Officer

Jaradi obviously saw Argueta well enough to fire gunshots

that struck Argueta.

Despite this evidence, Petitioners argue Officer Jaradi

did not admit into evidence a recording depicting Argueta

holding his gun at the instant he was shot so, Petitioners

argue, a jury may conclude Officer Jaradi could not see

Argueta’s gun until after Argueta fell after being shot.

The Court has never held that an officer who shoots

an armed suspect during the nighttime is not entitled to

summary judgment and must face trial unless the officer

files a recording of the armed suspect holding the gun

when the officer fired. But this is the interpretation of Rule

56 of the Federal Rules of Civil Procedure that Petitioners’

first issue depends on.

The first question Petitioners presented is facially

deficient for other reasons as well. Besides holding, or

possibly holding, a gun, Argueta exhibited several other

signs of dangerousness. Petitioners argue circuit courts

generally require indicia of dangerousness other than

merely being armed before an officer may seize a suspect

by shooting the suspect, but Petitioners admit “[a]ny other

warning will do actually.” (Petition 3).

12

In the case at bar, during the nighttime Argueta

without explanation exited his vehicle and ran “in such

a way that the right side of his body, including his right

arm and hand, [wa]s completely hidden in the dashcam

video and either obscured or not in focus in the bodycam

footage.” (App.9). “Rather than swing both of his arms,

as one naturally does when running. Argueta swung

only his left arm, keeping his right arm purposefully and

unnaturally pressed along his right side and out of sight

as he ran away.” (App.14). Officer Jaradi testified he was

concerned Argueta may be reaching for a weapon and

Officer Jaradi testified “he was concerned that he could

not, if necessary, react with his handgun in time to stop

an attack.” (App.14).

The evidence proves Officer Jaradi’s reasonable

concerns for his life were well-founded, regardless of

technological limitations of the camera mounted on his

chest to record a depiction of the gun in Argueta’s hand,

and regardless of whether the lack of lighting limited

Officer Jaradi’s ability to see the gun Argueta wielded. If

the lighting was so poor as to inhibit Officer Jaradi from

seeing Argueta’s gun and his threatening movements, in

the context of this case, that also provided other signs of

the seriousness of the risk.

From the vantage point of a reasonable officer during

these tense, uncertain, and rapidly evolving events, an

objective officer could reasonably believe Officer Jaradi’s

reaction to the several signs of dangerousness Argueta’s

actions presented was reasonable. Certainly, under the

circumstances presented to him, Officer Jaradi did not

violate any clearly established constitutional right.

13

Contrary to Petitioners’ argument, this case in no

way implicates any gun owner’s right to responsibly

carry a firearm. Argueta was not mistakenly shot while

reasonably exercising a right to gun ownership, but rather

because of the threat his actions presented to an officer.

An objective officer could reasonably have been concerned

for his safety when Argueta responded to merely being

pulled over, by grasping a handgun, removing it from

his vehicle, running gun in hand attempting to conceal

the weapon from Officer Jaradi, and moving the firearm

from concealment into a position from which only a slight

motion of Argueta’s hand would have resulted in the

handgun pointed at Officer Jaradi. Officers do not violate

the Fourth Amendment by using reasonable force under

the threatening circumstances Argueta’s choices and

actions created.

The second issue Petitioners present needs no further

decision by the Court. In Scott v. Harris, 550 U.S. 372,

381 (2007), the Court held that, under Rule 56, when a

reviewing court determines the material facts relevant to

application of the Fourth Amendment, the reasonableness

of force an officer used is a pure question of law.

For these reasons, the Court should deny certiorari.

REASONS TO DENY THE PETITION

A. The Court should not broaden its summary

judgment precedents to require a police officer to

corroborate summary judgment testimony with a

recording.

The summary judgment evidence proves Argueta’s

movements were “illuminated,” to some degree, by a

14

streetlight and police flashlights. ROA.9. The evidence

proves the recording made from the body-worn camera

attached at chest-level to Officer Jaradi’s shirt does not

depict the point of view of Officer Jaradi’s eyes, which had

a higher vantage point looking over the top of the handgun

Officer Jaradi held in front of his chest. (App.9) (ROA.43335, 485 at 0:08, 600-09). Officer Jaradi’s head could rotate

much differently than could the camera mounted on his

shirt. (App.9) (ROA.433-35, 485 at 0:08, 600-09).

The Fifth Circuit panel that reviewed the recording

found, “[t]he bodycam video is not of the highest resolution

and is filmed from the vantage of [Officer] Jaradi’s chest

rather than eyes, which creates a partially obscured view

of Argueta after [Officer] Jaradi raises his gun.” (App.9).

“The result of the foregoing is that, from the moment

Argueta exit[ed] the vehicle until the moment he is

laying on the ground, not one frame of the video evidence

presents a clear glimpse of [Argueta’s] firearm.” (App.9).

But the lack of a video recording of Argueta’s weapon

before the shooting does not change the fact Argueta

was armed with a gun when Officer Jaradi fired in selfdefense. (App.14-15).

Officer Jaradi provided the following testimonial

evidence regarding the moments immediately before he

fired:

I subsequently observed Argueta move his right

hand toward the front of his body where I could

then see he was holding a black colored handgun

in his right hand. I observed both the top of

the handgun and a high capacity ammunition

15

magazine sticking out of the grip of the gun.

It is very unusual for a law abiding citizen to

utilize a high capacity magazine extension

… At this point the gun was visible to me in

Argueta’s hand and Argueta was moving the

firearm forward and away from his right side

where he previously concealed it. Argueta held

his pistol in a position from which only a slight

motion from his hand would have resulted in

his handgun being pointed directly at me and

had he started to fire, I would not have had the

ability to act in self-defense.

ROA.433-434.

Petitioners urge the Court to make inappropriate

credibility determinations that summary judgment

precedent precludes. Petitioners argue the Court should

disbelieve Officer Jaradi’s testimony regarding what he

saw that led him to believe it reasonable to fire in selfdefense. Petitioners’ argued rationale is that a jury might

not believe Officer Jaradi’s testimony. But because such

an argument could be made in many, if not most, cases

in which summary judgment is granted, the Court’s

precedents directing application of Fed. R. Civ. P. 56

forbid such credibility challenges in assessing summary

judgment evidence. See Anderson v. Liberty Lobby, 477

U.S.242, 255 (1986).

“Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from

the facts are jury functions, not those of a judge, whether

he is ruling on a motion for summary judgment or for a

directed verdict.” Id. “[T]he determination of whether a

16

given factual dispute requires submission to a jury must

be guided by the substantive evidentiary standards that

apply to the case.” Id. It is not enough for a non-movant to

ask a judge to ignore or disbelieve the summary judgment

evidence based solely on the premise a jury might later

disbelieve testimony at trial. See id.

“Rule 56(e) itself provides that a party opposing a

properly supported motion for summary judgment may not

rest upon mere allegation or denials of his pleading, but

must set forth specific facts showing that there is a genuine

issue for trial.” Id. at 256. “At the summary judgment

stage, facts must be viewed in the light most favorable to

the nonmoving party only if there is a ‘genuine’ dispute

as to those facts.” Scott, 550 U.S. at 380 (emphasis added)

(quoting Fed. R. Civ. P. 56(c)).

“[T]he plaintiff must present affirmative evidence in

order to defeat a properly supported motion for summary

judgment. This is true even where the evidence is likely to

be within the possession of the defendant, as long as the

plaintiff has had a full opportunity to conduct discovery.”

Id. at 257. “When the moving party has carried its burden

under Rule 56(c), its opponent must do more than simply

show that there is some metaphysical doubt as to the

material facts …” Scott, 550 U.S. at 380. “Where the

record taken as a whole could not lead a rational trier of

fact to find for the non-moving party, there is no ‘genuine

issue for trial.’” Id. (quoting Matsushita Elec. Industrial

Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986)

(footnote omitted)).

17

The Court has further explained, “[w]hen opposing

parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury

could believe it, a court should not adopt that version of

the facts for purposes of ruling on a motion for summary

judgment.” Scott, 550 U.S. at 380.

Under Rule 56 and Scott supra, “no reasonable

jury could conclude that Argueta was visibly unarmed

– because he was armed.” (App.15). “Here, Argueta was

armed with a high-capacity semi-automatic weapon, which

he kept out of view as he fled, and needed only a slight turn

to begin firing at the officers from close range.” (App.14).

Recordings evidence the follow ing. A rg ueta’s

movement is illuminated by some lighting. ROA.9. When

Argueta exited his vehicle, he initially held his right arm

and hand down alongside the right side of his body, which

is consistent with trying to conceal his right arm and hand

from officers. (App.3, 9, 14, 14, 16, 17) (ROA.432, 441, 451,

599 at 1:06, 600, 645-46). As Argueta ran, for a time he

continued to conceal his right hand from Officer Jaradi’s

view by Argueta keeping his right hand near his right hip

with the core of his body between him and Officer Jaradi.

(App.3, 9, 14, 16, 17). The general direction of Argueta’s

path of movement, the relative positions of Argueta’s body

and Officer Jaradi as Argueta moved laterally in front of

Officer Jaradi, the relative position of Argueta’s right arm

and hand at various points in time when Argueta’s right

arm and hand were concealed from Officer Jaradi’s view

entirely. (ROA.433-34, 451, 485 at 0:08, 600-09).

While Argueta ran in front of Officer Jaradi, when

Argueta extended his right foot forward Argueta’s chest

18

was facing Officer Jaradi, and as Argueta extended his

left foot forward Argueta’s back was facing Officer Jaradi.

(ROA.485 at 0:07, 605). This natural movement controls

whether the bullets struck Argueta in the back or the

front of his torso.

Immediately before the recorded view of Argueta’s

movements is obstructed by Officer Jaradi’s hands holding

his gun, the recordings depict Argueta’s left arm and

hand, the elbow area of Argueta’s right arm, Argueta’s

shorts, legs, and shoes. (ROA.599 at 02:59:01, 603). When

Officer Jaradi fired, he could see well enough to fire shots

that struck Argueta. (ROA.599 at 02:59:08, 608).

To the extent recordings corroborate Officer Jaradi’s

testimony, recordings provide additional evidence. See

Scott, 550 U.S. at 380. The application of Scott’s holding

regarding recorded evidence ends there. Under Rule 56,

a mere lack of recorded evidence corroborating Officer

Jaradi’s testimony regarding his observations does not

negate his testimonial evidence. See id.

Nonetheless, Petitioners urge the Court to broaden

its precedents beyond the limits of Scott and Rule 56

and require Officer Jaradi to file a recording of Argueta

brandishing his gun when he was shot for Officer

Jaradi’s testimony to be credited. The Court has never

interpretated Rule 56 to place such a burden on an officer.

In Craven v. Novelli, 2024 U.S. App. LEXIS 10834 *7,

2024 WL 1952590 (4th Cir. 2024) (unpublished opinion)),

the Fourth Circuit credited officers’ testimony “that

after Mr. Cravens lowered his hands, he reached toward

his waistband and drew a handgun with his right hand,”

19

even though “[a]ll parties agreed that, at that point in

the body camera footage, the Officers’ flashlights make

Mr. Craven’s movements difficult, if not impossible, to

discern.” This was proper application of Rule 56.

As the Fifth Circuit Court discussed in Orr v.

Copeland, 844 F.3d 484, 490 (5th Cir. 2016), when applying

Scott, requiring a recording as a condition of admissibility

of testimony “flips Supreme Court precedent on its head.”

Petitioners’ insistence on a recording corroborating

Officer Jaradi’s testimony regarding facts he saw that

led him to believe it reasonable to fire in self-defense

“inverses” the Scott holding. Orr, 844 F.3d at 491.

Although there are moments when Officer Jaradi’s

extended arms and hands partially blocked some of the

view of the body-worn camera affixed to the front of

Officer Jaradi’s shirt (App.9) (ROA.462-63, 485 at 0:08,

603-07), Officer Jaradi’s eyes had a higher vantage point

looking over the handgun he held in front of his chest, and

Officer Jaradi’s head could swivel much differently than

the camera mounted on his shirt. (App.9) (ROA.433-35,

485 at 0:08, 600-09).

The Fifth Circuit panel noted “[t]he bodycam footage

is not of the highest resolution and is filmed from the

vantage of [Officer] Jaradi’s chest rather than eyes, which

creates a partially obscured view of Argueta after [Officer]

Jaradi raises his gun.” (App.9).

No recording can reasonably be construed to evidence

Officer Jaradi could not have seen Argueta’s weapon. The

recording depicts many details no more challenging for

Officer Jaradi to have seen than Argueta’s manipulation

20

of a pistol with the high-capacity ammunition extension.

Also, there is no evidence the capabilities of the bodyworn-camera were as good as Officer Jaradi’s eyes and

there is no unobstructed recording of Argueta when he

was shot that could prove lack of visibility. No jury could

reasonably believe the lighting conditions rendered Officer

Jaradi incapable of seeing Argueta’s weapon. Scott, 550

U.S. at 380.

The Court has never held that an officer who shoots an

armed suspect during the nighttime must face trial unless

the officer files a recording of the armed suspect holding

the gun when the officer fired. If all that is required

to create a genuine factual dispute regarding what an

officer could have seen is argue the existence of low light

conditions, Rule 56 is rendered virtually worthless in

less than perfect lighting conditions. And even when the

lighting is perfect, why couldn’t a plaintiff still argue that

an officer may not have seen what he saw for some other

claimed reason based on an argument challenging the

officer’s veracity.

Therefore, Petitioners have failed to satisfy their

burden to identify facts which controvert Officer Jaradi’s

testimony regarding his observations. See Celotex Corp.

v. Catrett, 477 U.S. 317, 324 (1986).

“Under Rule 56(c), summary judgment is proper ‘if

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits, if any, show

that there is no genuine issue as to any material fact for

trial and that the moving party is entitled to judgment as

a matter of law.’” Celotex, 477 U.S. at 322 (quoting Fed. R.

Civ. P. 56). “[T]he plain meaning of Rule 56(c) mandates

21

the entry of summary judgment, after adequate time for

discovery and upon motion, against a party who fails to

make a showing sufficient to establish the existence of

an element essential to that party’s case, and on which

that party will bear the burden of proof at trial.” Id.

“In such a situation, there can be ‘no genuine issue as

to any material fact,’ since a complete failure of proof

concerning an essential element of the nonmoving party’s

case necessarily renders all other facts immaterial.’” Id.

at 322-323. “Rule 56(e) therefore requires the nonmoving

party to go beyond the pleadings and by her own affidavits,

or by the ‘depositions, answers to interrogatories, and

admissions on file,’ designate ‘specific facts showing there

is a genuine issue for trial.’” Id. at 324.

There is no evidence Officer Jaradi could not possibly

see Argueta brandish his gun. Accordingly, this is not an

appropriate case for the Court’s consideration because the

entire premise of Petitioners’ argument is not supported

by the evidence and depends on the Court improperly

weighing evidence and making credibility determinations

Rule 56 does not permit. See Anderson, 477 U.S. at 255.

The Court should not broaden its precedents to require

an officer to corroborate testimony with a recording.

B. Determining the reasonableness of force an officer

used is a question of law.

In addressing the legal question of whether an officer’s

actions were reasonable, in Scott, 550 U.S. at 381, the

Court has rejected the argument such a determination

is a fact question reserved for a jury. “At the summary

judgment stage, [], once [courts] have determined the

relevant set of facts and drawn all inferences in favor of

22

the nonmoving party to the extent supportable by the

record,…,the reasonableness of [the officer’s] actions -or in Justice Stevens’ parlance, ‘[w]hether [respondent’s]

actions have risen to a level warranting deadly force,’ post,

at 395 -- is a pure question of law.” Id. at n.8. (emphasis

in original).

In Mullenix v. Luna, 577 U.S. 7, 10 (2015) (per

curiam), the Court examined an error a Fifth Circuit

panel majority made in Luna v. Mullenix, 765 F.3d 531,

538 (2014), when the panel majority initially opined “that

the ‘immediacy of the risk posed by [a fleeing suspect] is a

disputed fact that a reasonable jury could find either way

in the plaintiffs’ favor or in the officer’s favor, precluding

[the circuit court] from concluding that [the officer] acted

objectively reasonably as a matter of law.’”

In Mullenix, 577 U.S. at 10, the Court examined

that Fifth Circuit Court Judge Carolyn Dineen King

dissented, describing the “‘fact issue referenced by the

[panel] majority’ as ‘simply a restatement of the objective

reasonableness test that applies to Fourth Amendment

excessive force claims,’ which she noted, the Supreme

Court has held ‘is a pure question of law.’” Luna, 765 F.3d

at 544-545 (quoting Scott, 550 U.S. at 381 n.8). The Fifth

Circuit panel majority withdrew the initial opinion and

substituted it with Luna v. Mullenix, 773 F.3d 712 (5th

Cir. 2014). “The revised opinion recognized that objective

reasonableness is a question of law that can be resolved

on summary judgment – as Judge King had explained in

her dissent...” Mullenix, 577 U.S. at 11.

Later, in addition to discussing the merits of Judge

King’s dissent in the withdrawn Luna I opinion, the

23

Court’s analysis and decision in its Mullenix decision

confirmed that, whether a given course of conduct poses a

risk of harm that justifies deadly force is a legal question

for the court’s decision, not a factual dispute for a jury

that precludes summary judgment. Id. at 10-11, 13-19.

In Mullenix, 577 U.S. at 11-14, the Court also rejected

a different, but related error in Luna II regarding that

panel’s opinion “the law was clearly established such that a

reasonable officer would have known that the use of deadly

force, absent a sufficiently substantial imminent threat,

violated the Fourth Amendment.” The qualified immunity

question is also a legal issue for the court’s decision based

on the court’s analysis of “whether the violative nature of

particular conduct is clearly established.”

When an officer “contend[s] that [his] conduct did not

violate the Fourth Amendment and, in any event, did not

violate clearly established law,” the officer “raise[s] legal

issues; these issues are quite different from any purely

factual issues that the trial court might confront if the

case were tried; deciding legal issues of this sort is a core

responsibility of appellate courts, and requiring appellate

courts to decide such issues is not an undue burden.”

Plumhoff v. Rickard, 572 U.S. 765, 773 (2014).

The Court has determined that, whether deadly force

is unreasonable under the Fourth Amendment or violates

clearly established law, in response to a particular course

of conduct, are legal questions for the court, not questions

of fact for a jury.

24

C. Officer Jaradi’s reaction to the threat he faced

was reasonable under the circumstances Argueta

created.

The issue in Tennessee v. Garner, 471 U.S. 1, 3

(1985), was “determin[ing] the constitutionality of the

use of deadly force to prevent the escape of an apparently

unarmed suspected felon.” The Court “conclude[d] that

such force may not be used unless it is necessary to prevent

the escape and the officer has probable cause to believe

that the suspect poses a significant threat of death or

serious physical injury to the officers or others.” Id.

In Garner, Memphis police officer Elton Hymon

responded to a prowler call and saw a person run across a

backyard. Id. The fleeing suspect was Edward Garner. Id.

“With the aid of a flashlight, [Officer] Hymon

was able to see Garner’s face and hands. He saw

no sign of a weapon, and, though not certain,

was ‘reasonably sure,’ and ‘figured’ that Garner

was unarmed.”

Id. (quoting the evidentiary record).

Garner “began to climb over the fence.” Id. at 4.

“Convinced that if Garner made it over the fence he would

elude capture, [Officer] Hymon shot [Garner].” Id. “In

using deadly force to prevent the escape, [Officer] Hymon

was acting under the authority of a Tennessee statute and

Police Department policy.” Id.

The Court decided,

25

“Officer Hymon could not reasonably have

believed that Garner – young, slight, and

unarmed – posed any threat. Indeed, [Officer]

Hymon never attempted to justify his actions

on any basis other than the need to prevent

escape.”

Id. at 21.

Four years after deciding Garner, the Court further

refined Fourth Amendment precedent in Graham v.

Connor, 490 U.S. 386 (1989). “Because ‘police officers

are often forced to make split-second judgments -- in

circumstances that are tense, uncertain, and rapidly

evolving -- about the amount of force that is necessary

in a particular situation.’ [Graham, 490 U.S. at 397], the

reasonableness of the officer’s belief as to the appropriate

level of force should be judged from that on-scene

perspective. [Graham, 490 U.S. at 396].” Saucier v. Katz,

533 U.S. 194, 205 (2001). For this reason, the Court has

“set out a test that cautioned against the ‘20/20 vision

of hindsight’ in favor of deference to the judgment of

reasonable officers on the scene.” Id. (quoting Graham,

490 U.S. at 393, 396). Under the objective reasonableness

standard “[i]f an officer reasonably, but mistakenly,

believed that a suspect was likely to fight back, for

instance, the officer would be justified in using more force

that in fact was needed.” Id.

To achieve the principles the Court established through

Graham, the reasonableness standard and associated

qualified immunity must be interpreted consistently by

courts with a pragmatic recognition of the material facts

melded with an understanding of the Fourth Amendment

26

that provides officers a legitimate opportunity to protect

themselves and save other innocent lives. It is crucial that

courts, in interpreting reasonableness, render decisions

harmonized with realistic capabilities and legitimate

needs of officers and the public officers are duty bound to

protect. The Court’s decisions have consistently so applied

the Fourth Amendment and immunity.

In Ryburn v. Huff, 565 U.S. 469, 477 (2012), the Court

reinforced the salient principle that appropriate evaluation

of whether a set of facts present an imminent threat to

safety must be “[j]udged from the proper perspective of

a reasonable officer forced to make a split-second decision

in response to a rapidly unfolding chain of events…”

Before the Court decided Ryburn, the Ninth Circuit

“panel majority – far removed from the scene and with

the opportunity to dissect the elements of the situation –

confidently concluded that the officers really had no reason

to fear for their safety or that of anyone else.” Ryburn,

565 U.S. at 475. The Ninth Circuit majority “recit[ed] a

sanitized account of this event.” Id. at 473.

“[T]he [Ninth Circuit] panel majority’s method

of analyzing the string of events that unfolded

at the Huff residence was entirely unrealistic.

The majority looked at each separate event in

isolation and concluded that each, in itself, did

not give cause for concern. But it is a matter of

common sense that a combination of events each

of which is mundane when viewed in isolation

may paint an alarming picture.”

Id. at 476-477.

27

But under the Court’s precedent, “[t]he calculus

of reasonableness must embody allowance for the fact

that police officers are often forced to make split-second

judgments – in circumstances that are tense, uncertain,

and rapidly evolving.” Graham, 490 U.S. at 396-97. “The

Fourth Amendment standard is reasonableness, and it

is reasonable for police to move quickly if delay ‘would

gravely endanger their lives or the lives of others.’” City

and County of San Francisco v. Sheehan, 575 U.S. 600,

612 (2015) (quoting Warden Md. Penitentiary v. Hayden,

387 U.S. 294, 298-299 (1967)).

Officer Jaradi testified he shot Argueta after Officer

Jaradi saw Argueta moving a firearm augmented with a

high-capacity ammunition extension forward and away

from his right side where Argueta previously concealed

it indicating a potential escalation of the threat Argueta’s

actions posed. (ROA.434). Officer Jaradi fired when

Argueta held his pistol in a position from which only a

slight motion from his hand would have resulted in his

handgun pointed at Officer Jaradi. ROA.433-434. “It is

hard to imagine that pointing a [pistol] in any direction

would not cause a reasonable officer to fear for someone’s

life.” Wilson v. Meeks, 52 F.3d 1547, 1553-1554 (10th Cir.

2012) (per curiam).

Under the Court’s decisions, the force Officer Jaradi

used was objectively reasonable. That is so even if Officer

Jaradi had not seen Argueta’s gun. Officer Jaradi had

been trained regarding the scientific principle of action

versus reaction. Under this instruction, Officer Jaradi

learned an individual who acts first can execute a planned

task quicker than can an individual who is reacting in

response to an observed action. The individual who acts

28

first can covertly think of his planned actions without

others knowing the action is in progress until the reacting

person observes the action already in progress. ROA.434.

Only after the responding person perceives threatening

action, and the responding person mentally creates an

intended response, and the responding person transmits

the intended response to a part of the responding person’s

body that is capable of responding, can a person reacting

to a threat perform a defensive task. (ROA.434).

Because all those steps take time, action is faster than

reaction. In the context of Officer Jaradi’s encounter with

Argueta, Officer Jaradi realized Argueta could easily

shoot Officer Jaradi before he could react to defend himself

if he waited until Argueta pointed his gun at Officer

Jaradi. (ROA.434).

Without regard to Off icer Jaradi’s testimony

regarding him seeing Argueta’s gun and seeing Argueta’s

manipulation of the gun, the circumstances Officer Jaradi

encountered posed a serious threat of harm to Officer

Jaradi. Officer Jaradi was approximately fifteen feet

from Argueta and Officer Jaradi had no cover to protect

him from a bullet if Argueta fired a shot. (ROA.434). In

response to Officer Jaradi merely initiating a vehicle stop,

the driver’s door of Argueta’s vehicle quickly sprang open,

and Argueta ran southeast away from his vehicle in low

lighting. Argueta did not choose to run westbound, which

would have been directly away from officers. Instead,

Argueta took a route that passed at an angle diagonally

alongside the driver’s side of Officer Jaradi’s vehicle.

In addition to the odd route Argueta took that was

nearer Officer Jaradi than Argueta could have taken,

29

Officer Jaradi was in a position from which Argueta

could easily have fired a firearm at Officer Jaradi. Officer

Jaradi noted Argueta kept his right hand down to his side.

Officer Jaradi could not then determine whether Argueta

was holding something behind his right hip or if his right

hand was inside his pocket because the core of Argueta’s

body initially obscured Officer Jaradi’s view of Argueta’s

right hand. Officer Jaradi perceived Argueta’s actions as

Argueta intentionally holding his right arm down at his

right side to conceal something.

It appeared to Officer Jaradi that Argueta was

concealing his right hand, so recognizing a potential risk

of harm Officer Jaradi began to act to reduce his reaction

time if he perceived it necessary to use his handgun to

defend himself. Officer Jaradi removed his handgun from

its holster and pointed it toward Argueta as a precaution

due to the events that had occurred to that point.

Officer Jaradi verbally commanded Argueta to get

his hand out of his pocket, which is what Officer Jaradi

initially suspected Argueta may be doing with his hand.

Officer Jaradi did not know the actual threat he faced

was even greater than he anticipated may be the reason

Argueta was concealing his right hand. Instead of having

his right hand in his pocket, Argueta held a firearm

augmented with a high-capacity ammunition extender.

From this position, only a slight motion of Argueta’s

hand would have resulted in his handgun pointed at Officer

Jaradi. Had Officer Jaradi ever recognized Argueta’s

gun and had Officer Jaradi decided to fire, Officer Jaradi

would not have had the ability to timely act in self-defense.

Because Officer Jaradi could not then see Argueta’s gun,

30

Officer Jaradi underestimated the latent risk of serious

harm Officer Jaradi faced before he saw Argueta’s gun.

(App.14) (ROA.433-435).

Argueta’s actions presented Officer Jaradi with a

dilemma wherein he had only fractions of seconds to

respond to the serious threat to his life Argueta’s actions

potentially posed, during circumstances that were tense,

uncertain, and rapidly evolving, without Officer Jaradi

having more time or more information which may have

allowed him to respond differently had Argueta not

reduced Officer Jaradi’s reaction time as Argueta did.

(ROA.433-435). Under these perilous circumstances, any

objective officer could have reasonably feared he could be

shot and could have responded to the apparent threat by

shooting Argueta to stop the threat.

Training Officer Jaradi had received regarding action

and reaction informed Officer Jaradi’s assessment of the

threat and response to it. Officer Jaradi’s training likens

the knowledge and training Texas Ranger Jeff Cook

explained in Ontiveros v. City of Rosenberg, Texas, 564

F.3d 379, 384 n.2 (5th Cir. 2009).

In Ontiveros, 564 F.3d at 381, Rosenberg police

lieutenant Dewayne Logan confronted Modesto Ontiveros

inside a dimly lit room of a mobile home. When opening the

door of a room in which Ontiveros was located, “Lieutenant

Logan illuminated Ontiveros with a tactical light on his

pistol and saw him a few feet away holding an object

over his head.” Id. Ontiveros moved behind the door.”

Id. Lieutenant “Logan then believed he saw Ontiveros

reaching into a boot at chest level for what Logan believed

could be a weapon.” Id. “At that point, Logan fired two

[fatal] shots.” Id.

31

Ranger Cook, who investigated the shooting,

explained the exigency confronting Lieutenant Logan. Id.

at 384 n.2. In response to the following questions asked

of him, Ranger Cook testified:

Q. I f Lieut ena nt Log a n perceived M r.

Ontiveros’s actions as Mr. Ontiveros putting

his hand inside the boot do you think it

would have been necessary for Lieutenant

Logan to wait until Mr. Ontiveros exhibited

a weapon before taking defensive action?

A. Absolutely not.

Q. And why not?

A. Because he will then be behind the curve

on reacting. Action is always-action always

beats reaction.

…

Q. And do you think that it’s likely that

Lieutenant Logan would have had enough

time to take appropriate steps to protect

himself if he waited until Mr. Ontiveros

removed a handgun from the boot if he had

one in there?

A. No. Again, action beats reaction. If someone

pulls a gun-I don’t know if you want me to

go into that or not but …

Q. Explain that for us.

32

A. Action is going to beat reaction every time.

For example, if I have-if I have a gun and

my brain-I have made the decision to shoot,

then that message is going to travel down to

my muscles and I’m going to shoot. For you

to react to that – I have already started a

process. You have to recognize it, then your

brain has to tell your muscles to react, and

then you’re reacting to my actions. So action

is going to beat reaction simply because of

the cognitive element involved.

Id. at p. 389.

Q. Have you ever observed a training exercise

where one officer stands across a room from

an officer, for example, and the training

officer has his hand down next to his body

with a gun in it and then the other officer is

supposed to react? Have you seen that kind

of exercise?

A. I actually participated in that training about

three weeks ago.

Q. Can you explain that in detail, how that

training works?

A. Well, we had simunition guns. I don’t know

if I need to explain, but it’s guns that look

and feel real but don’t shoot real bullets. And

literally, I stood there and pointed a gun at

the instructor and the instructor had the

gun actually pointed to the ground and just

33

told me to shoot whenever he acted. And I

could not shoot him before he shot me. At

best, I could tie him. He could bring the

gun up, pull the trigger before I could pull

the trigger. I never beat him, and at best I

could tie him.”

Q. Is a tie good enough in this work?

A. No, a tie, you die, you know.

Id. (emphasis added).

Ranger Cook explained police training that is

consistent with the sound rationale underlying the

well-reasoned furtive movement line of circuit court

case opinions, in which a suspect’s conduct signals to a

reasonable officer the suspect may be readying a weapon

to use against the officer or another. Compare, SalazarLimon v. City of Houston, 826 F.3d 272, 275 (5th Cir.

2016); Batyukova v. Doege, 994 F.3d 717, 722-723 (5th Cir.

2012); Carnaby v. City of Houston, 636 F.3d 183, 188-189

(5th Cir. 2011); Manis v, Lawson, 585 F.3d 839, 844 (5th

Cir. 2009); Reese v. Anderson, 926 F.2d 494-500-501 (5th

Cir. 1991); Young v. City of Killeen, 775 F.2d 1349, 1353

(5th Cir. 1985).

Under Gar ner and circuit court opinions like

Ontiveros and the cases cited in the preceding paragraph,

that are supported by the rationale Ranger Cook adeptly

explained, a reasonable officer could have believed

Argueta posed a serious threat of death or serious physical

injury to Officer Jaradi. See Garner, 471 U.S. at 3. Garner

cannot reasonably be construed to have prohibited Officer

34

Jaradi from firing to defend himself. Compare, Garner,

471 U.S. at 3; and Ontiveros.

D. Officer Jaradi is entitled to judgment in his favor

based on qualified immunity because he did not

violate clearly established law.

The Fifth Circuit rendered judgment in favor of

Officer Jaradi based on the holding “that Argueta failed

to establish ‘beyond debate’ that [Officer] Jaradi violated

a clearly established federal right.” (App.18).

Petitioners presented no question to the Court that

forecloses Officer Jaradi’s immunity. Petitioners do not

identify any legal standard, that stems from controlling

legal authority or a robust consensus of cases of persuasive

authority, dictating Officer Jaradi’s action beyond debate.

See Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021);

District of Columbia v. Wesby, 583 U.S. 48, 63 (2018). “To be

clearly established, a legal principle must have a sufficiently

clear foundation in then-existing precedent.” Id.

“It is not enough that the rule is suggested by thenexisting precedent.” Id. “The precedent must be clear

enough that every reasonable official would interpret it to

establish the particular rule the plaintiff seeks to apply.”

Id. (quoting Reichle v. Howards, 566 U.S. 658, 666 (2012)).

“Otherwise, the rule is not one that ‘every reasonable

official’ would know.” Id. (citing Reichle, 566 U.S. at 664).

The Court has “repeatedly told courts … not to define

clearly established law at a high level of generality.”

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

U.S. 731, 742 (2011)).

35

“[T]here is no doubt that Graham v. Connor,

sup r a, clea rly est abl ishes t he genera l

proposition that use of force is contrary to the

Fourth Amendment if it is excessive under

objective standards of reasonableness. Yet that

is not enough. Rather, [the Court] emphasized

in Anderson ‘that the right the official is

alleged to have violated must have been ‘clearly

established’ in a more particularized, and hence

more relevant, sense.”

Brosseau v. Haugen, 543 U.S. 194, 198-199 (2004) (per

curiam).

Petitioners admit Garner does not address the

specific circumstances Officer Jaradi encountered, so

Garner does not provide a proper measure of Officer

Jaradi’s immunity. Argueta was not an unarmed fleeing

suspect like Garner. Petitioners concede Garner did not

address whether, under the circumstances that confronted

Officer Jaradi, an officer may - consistent with the Fourth

Amendment - seize an armed suspect by shooting the

suspect. Petitioners do not argue Garner or any other

decision of the Court provides notice to every reasonable

officer that Officer Jaradi’s conduct was clearly unlawful

under established constitutional law. (Petition I, 2).

And had Petitioners made such an argument, the

Court has consistently rejected the notion Garner

provides clearly established law in the immunity context.

Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5-6 (2021); White

v. Pauly, 580 U.S. 73, 79-80 (2017); Mullenix, 577 U.S. at

12-13); Plumhoff, 572 U.S. at 779; Brosseau, 543 U.S. at

205.

36

“To be clearly established. a legal principle must have

a sufficiently clear foundation in then-existing precedent.

The rule must be ‘settled law,’” Hunter, 502 U.S. at 228,

which means it is dictated by ‘controlling authority’ or ‘a

robust consensus of cases of persuasive authority.’” Wesby,

583 U.S. at 63 (quoting Ashcroft v. al-Kidd, 563 U.S. 731,

741-742 (2011) (quoting Wilson v. Layne, 526 U.S. 603,

617 (1999)).

Petitioners do not identify controlling authority or a

robust consensus of cases of persuasive authority showing

that every reasonable officer knew Officer Jaradi’s

reaction to the potential threat Argueta posed was

clearly unlawful. Instead, Petitioners argue a split exists

(not a consensus) in circuit court opinions regarding the

circumstances when an officer may, consistent with the

Fourth Amendment, seize an armed suspect by shooting

him.

Petitioners argue some circuit courts require indicia

of dangerousness other than being armed before an officer

may shoot the suspect but, even if true, such opinions

are much too general to satisfy the Court’s standard

for declaring a clearly established constitutional right.

(Petition I, 2-3). And Petitioners admit that “[a]ny other

warning will do actually.” (Petition 3).

Thus far, only the Supreme Court has declared clearly

established law in the immunity context. Rivas-Villegas,

595 U.S. at 5. The Court has never found circuit court

authority sufficient to clearly establish constitutional law.

Id.

37

Assuming arguendo, without conceding, that a

consensus of circuit court authority could clearly establish

Constitutinal law, no such authority exists in this case.

No one circuit court opinion Petitioner cited is factually

similar to the circumstances Officer Jaradi encountered,

and certainly no consensus of authority exists in the circuit

court opinions Petitioners cite that would apply with

particularity to the apparent threat Argueta presented.

This is far from an obvious case, so “to show a

violation of clearly established law, [Petitioners] must

identify a case that put [Officer Jaradi] on notice that his

specific conduct was unlawful.” Rivas-Villegas, 595 U.S.

at 6; City of Escondido v. Emmons, 586 U.S. 38, 43-44

(2019). Petitioners have not even attempted to satisfy this

requirement. See Wesby, 583 U.S. at 64-65.

The bedrock of immunity is fair notice to an officer

warning him when he acts that his conduct is clearly

unlawful in the specific circumstance the officer is facing.

See Brosseau, 543 U.S. at 205. “If judges thus disagree

on a constitutional question, it is unfair to subject police

to money damages for picking the losing side of the

controversy.” Wilson, 526 U.S. at 618.

“Qualified immunity is no immunity at all if clearly

established law can simply be defined as the right to be

free from unreasonable searches and seizures.” Sheehan,

575 U.S. at 613. Petitioners present no basis for denying

immunity to Officer Jaradi.

Lastly, if the Court issued an interpretation of the

Fourth Amendment in the case at bar, any such decision

would not retroactively create a clearly established law

38

governing Officer Jaradi’s conduct when he shot Argueta

on June 25, 2018. Judicial decisions that post-date Officer

Jaradi’s action “could not have given fair notice to [Officer

Jaradi] and are of no use in the clearly established law

inquiry.” Brosseau, 543 U.S. at 200 n.4.

Officer Jaradi is entitled to judgment in his favor

because he did not violate clearly established constitutional

law.

CONCLUSION

For these reasons, the Court should deny certiorari.

Respectfully submitted,

William S. Helfand

Counsel of Record

Norman Ray Giles

Lewis Brisbois Bisgaard

& Smith LLP

24 Greenway Plaza, Suite 1400

Houston, Texas 77046

(713) 659-6767

bill.helfand@lewisbrisbois.com

Counsel for Respondent