Petition for Writ of Certiorari — Ethel "Laverne" McVae, Individually and on Behalf of the Estate of Marcus McVae, Deceased, et al., Petitioners v. Jesse Perez

Supreme Court briefJan 28, 2025

Ask Donna

What actually matters in this document.

Text

No.

In the

Supreme Court of the United States

Ethel “Laverne” McVae, Individually, and on Behalf

of the Estate of Marcus McVae, Deceased; Wiley

West, Individually, and on Behalf of the Estate of

Marcus McVae, Deceased,

Petitioners,

JESSE PEREZ,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

EDWARD L. PIÑA

Counsel of Record

MATTHEW N. GOSSEN

Edward L. Pina & Associates, P.C.

8118 Datapoint Drive

San Antonio, Texas 78229

Telephone: (210) 614-6400

Email:epina@arielhouse.com

Counsel for Petitioners

QUESTION PRESENTED

Nearly four decades ago, this Court drew a

constitutional line: law enforcement may not use

deadly force against an unarmed, fleeing suspect

who poses no immediate threat to officers or the

public. Tennessee v. Garner, 471 U.S. 1 (1985), made

clear that the Fourth Amendment’s reasonableness

standard demands a careful balance—the sanctity of

human life weighed against the government’s

interest in effective policing. Relying on United

States v. Place, 462 U.S. 696 (1983), the Court

emphasized that the totality of the circumstances

must justify such a seizure. Garner, 471 U.S. at 8–9.

That line, once bright, has grown dangerously

blurred. This case asks whether that constitutional

promise still holds true. When an officer fatally

shoots an unarmed person in the back as he runs

away, absent any immediate threat, does the Fourth

Amendment protect his right to live? Or have the

expanding contours of qualified immunity and

fractured lower court interpretations of the “moment

of threat” doctrine effectively erased the limits this

Court once so clearly defined?

This petition presents an urgent and recurring

constitutional question: Whether it is clearly

established under the Fourth Amendment that a law

enforcement officer may not use deadly force against

an unarmed, fleeing person who poses no immediate

threat to the officer or others, as determined by the

totality of the circumstances.

PARTIES TO THE PROCEEDING

Laverne McVae, individually, and on behalf of the

Estate of Marcus McVae, Deceased, and Wiley West

individually, and on behalf of the Estate are

petitioners here and were plaintiffs-appellees below.

Petitioners are not corporations as defined by

Rule 29.6.

Edward L. Piña is lead counsel of record for

petitioners here and Edward L. Piña and Matthew N.

Gossen were counsel for plaintiffs-appellants below.

James P. Roberts, Scott H. Palmer, P.C. appeared on

the brief for plaintiffs-appellants below.

Jesse Perez is the respondent here and defendantappellant below.

Ken Paxton, Brent Webster, Grant Dorfman, Shawn

Cowles, Shanna E. Molinare, Christopher Lee

Lindsay, were counsel of record for respondent here

and was counsel for defendant below.

Joseph N. Mazzara, Office of the Attorney General,

Solicitor General Division, P.O. Box 12548, Austin,

Texas 78711 was counsel of record for respondent

here and was counsel for defendant below.

iii

STATEMENT OF RELATED PROCEEDINGS

Ethel “Laverne” McVae, Individually, et al. v. Jesse

Perez, No. 23-50703 (5th Cir.) (per curiam opinion

issued a judgment, affirming and entered the

judgment on October 30, 2024; mandate issued on

November 21, 2024).

Ethel “Laverne” McVae, Individually, et al. v. Jesse

Perez, No. 5:21-CV-366-DAE (W.D. of Texas – San

Antonio Division) (memorandum of decision issued

September 12, 2023; final judgment entered

September. 12, 2023).

There are no additional proceedings in any court that

are directly related to this case.

TABLE OF CONTENTS

QUESTION PRESENTED.......................................... i

PARTIES TO THE PROCEEDING ........................... ii

STATEMENT OF RELATED PROCEEDINGS....... iii

TABLE OF AUTHORITIES ...................................... vi

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

STATUTORY PROVISION INVOLVED ................... 2

STATEMENT OF CASE NECESSARY

TO ARGUMENT OF THE ISSUES ....................... 3

A. Factual Background.......................................... 5

B. The Stop, the Pursuit, and the Wholly

Unnecessary Fatal Shooting............................. 6

C. Proceedings Below ............................................ 9

D. The Circuit Split on the “Moment of

Threat”............................................................. 13

REASONS FOR GRANTING THE PETITION ...... 14

Petitioners’ First Issue.......................................... 14

A. The Shield of Qualified Immunity Cannot

Excuse the Fatal Shooting in the Back of

an Unarmed, Fleeing Man.............................. 14

B. An Unarmed Man Was Shot in the Back –

A Clear Violation of the Fourth

Amendment ..................................................... 15

C. Perez Shot McVae in the Back Knowing

He Was Unarmed – This is Not Law

Enforcement, This Is an Execution ................ 24

Petitioners’ Second Issue ...................................... 35

A. The “Moment of Threat” Doctrine Has No

Place in This Case ........................................... 35

B. Law Enforcement Need Clear Guidance

From This Court ............................................ 36

CONCLUSION ......................................................... 37

APPENDIX

Appendix A Opinion and Judgment in the

United States Court of Appeals for the Fifth

Circuit (October 30, 2024) ..................................... 1a

Appendix B Order: (1) Granting Motion for

Summary Judgment; and Sustaining in Part

and Overruling in Part Objections to

Evidence Part and Denying in Part Officers’

Motion for Summary Judgment (Dkt. # 47) in

the United States District Court for the

Western District of Texas, San Antonio

Division (September 12, 2023) ............................ 14a

TABLE OF AUTHORITIES

Cases

Abraham v. Raso,

183 F.3d 279 (3d Cir. 1999) .................................. 36

Amador v. Vasquez,

961 F.3d 721 (5th Cir. 2020) .................................... 10

Baker v. Coburn,

68 F.4th 240 (5th Cir. 2023) .................... 9, 17, 18, 24

Edwards v. Oliver,

31 F.4th 925 (5th Cir. 2022) .......................... 9, 23, 32

Ellis v. Wynalda,

999 F.2d 243 (7th Cir. 1993) ............ 11, 12, 24, 31, 36

Estate of Aguirre v. City of San Antonio,

995 F.3d 395 (5th Cir. 2021) .................................... 16

Flores v. City of Palacios,

381 F.3d 391 (5th Cir. 2004) ................................... 16

Goode v. Baggett,

811 F. App’x 227 (5th Cir. 2020) ............................. 16

Graham v. Connor,

490 U.S. 386 (1989) ..................... 6, 11, 13, 15, 24, 35

Harlow v. Fitzgerald,

457 U.S. 800, 102 S. Ct. 2727,

73 L. Ed. 2d 396 (1982) ........................................... 14

Harris v. Serpas,

745 F.3d 767 (5th Cir. 2014) .................................... 10

Kelly v. Foti,

77 F.3d 819 (5th Cir. 1996) ........................................ 9

vii

Lytle v. Bexar County,

560 F.3d 404 (5th Cir. 2009) .......... 9, 11, 18, 19, 23,

24, 32-34, 36

Mullenix v. Luna,

136 S. Ct. 305, 193 L. Ed. 2d 255 (2015) ............... 14

Ramirez v. Knoulton,

542 F.3d 124 (5th Cir. 2008) .................................... 16

Scott v. Harris,

550 U.S. 372, 127 S. Ct. 1769,

167 L. Ed. 2d 686 (2007) ......................................... 31

Tennessee v. Garner,

471 U.S. 1 (1985) .... i, 8, 10, 13, 16, 23-25, 31, 33, 35

Tolan v. Cotton,

572 U.S. 650, 134 S. Ct. 1861,

188 L. Ed. 2d 895 (2014) ......................................... 15

United States v. Place,

462 U.S. 696 (1983) .................................................. i

Constitutional Provisions

U.S. Const. amend. IV ................. i, 5, 9-10, 13-15, 17,

23, 32-33, 38

Statutes

28 U.S.C. § 1254(1) ..................................................... 1

42 U.S.C. § 1983 ........................................... 2, 3, 5, 38

PETITION FOR WRIT OF CERTIORARI

Petitioners, Ethel “Laverne” McVae, individually,

and on Behalf of the Estate of Marcus McVae,

Deceased; Wiley West, individually, and also on

Behalf of the Estate; respectfully petition for a writ

of certiorari to review the judgment of the United

States Court of Appeals for the Fifth Circuit in this

case.

OPINIONS BELOW

The opinion of the Fifth Circuit (App. 1, infra, 1a8a) is available at 120 F.4th 487 (5th Cir. 2024), 2024

U.S. App. LEXIS 27567, 2024 WL 4614717. The

district court’s decision granting, in part and denying

in part, the motion for summary judgment (App. 2,

infra, 9a-69a) is unreported.

JURISDICTION

The judgment of the court of appeals was filed on

October 30, 2024. The Court’s jurisdiction is based on

28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

42 U.S. Code § 1983 provides, in relevant part:

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for

redress.”

STATEMENT OF CASE NECESSARY

TO ARGUMENT OF THE ISSUES

This petition for certiorari illustrates that review is

warranted because the judicially created doctrine of

qualified immunity has expanded to the point that it

nullifies the remedial purpose of Section 1983. There

is no textual or historical basis supporting the

modern qualified immunity doctrine. Furthermore,

empirical data demonstrate that the policy

assumptions underpinning qualified immunity are

unsupported and, in fact, counterproductive. It is

respectfully submitted that this Court must

reexamine and refocus the doctrine to align with the

statutory purpose of Section 1983: providing redress

for constitutional violations and much needed

guidance to law enforcement officers.

The tragic and unjustified killing of Marcus McVae is

emblematic of a broader systemic failure. On April

11, 2019, McVae was traveling on a Texas highway

with his white girlfriend when Trooper Jesse Perez

initiated a stop without probable cause. What

followed was an unjustifiable escalation of force,

culminating in McVae’s execution-style shooting as

he fled, unarmed, into the woods. The evidence—

including body camera footage and forensic

analysis—undeniably demonstrates that Perez shot

McVae three times in the back while he was running

away, posing no immediate threat.

Despite these indisputable facts, the district court

granted summary judgment in favor of Perez,

concluding that he acted reasonably. The Fifth

Circuit affirmed this decision, citing the increasingly

broad scope of qualified immunity. This case

presents a critical opportunity for this Court to

correct a dangerous precedent that permits law

enforcement officers to evade accountability for

egregious constitutional violations.

The question before this Court is not merely one of

individual justice, but of national consequence. In an

era where public confidence in the integrity of law

enforcement is at stake, this Court’s intervention is

necessary to restore the balance of constitutional

accountability. The doctrine of qualified immunity

cannot serve as an impenetrable shield for officers

who violate the most basic rights of citizens.

Furthermore, this Court’s guidance is urgently

needed to resolve a widening circuit split regarding

the proper test for analyzing excessive force

claims. Some circuits limit their analysis to the

“moment of threat” when an officer uses force,

ignoring the broader context that led to the

confrontation. Others properly consider the totality

of the circumstances. This inconsistency results in

disparate legal standards for identical constitutional

violations.

Moreover, this case presents an opportunity for this

Court to address the widening circuit split

concerning the proper analytical framework for

evaluating excessive force claims. The conflicting

standards among the circuits center on whether

courts should consider only the "moment of threat" or

the totality of the circumstances and necessitate this

Court’s intervention to ensure uniform application of

Fourth Amendment principles nationwide. Without

this Court’s guidance, lower courts will continue to

apply inconsistent standards, eroding public trust in

the judicial system and allowing constitutional

violations to go unchecked.

Without this Court’s intervention, courts will

continue to apply conflicting standards, allowing

constitutional violations to go unremedied in some

circuits and remedied in others. The legitimacy of the

judiciary depends on its commitment to enforcing

constitutional protections evenly and fairly.

For these reasons, it is respectfully submitted this

Court should grant the petition for certiorari and

reaffirm the principle that no one—including those

entrusted with enforcing the law—is above it.

Factual Background

On April 11, 2019, Marcus McVae a slightly built

Black man was shot three times in the back and

killed by then Texas State Trooper Jesse Perez as he

ran unarmed through a wooded area, away from

Perez, posing no threat to anyone. ROA.271 at 19:3019:35; ROA.284; ROA.399-ROA.401; ROA.404.

Petitioners, McVae’s parents, filed suit against Perez

under 42 U.S.C. § 1983, asserting a violation of

McVae’s Fourth Amendment right to be free from an

unreasonable seizure through the use of excessive

deadly force. ROA.9-ROA.26. Despite clear factual

disputes and video evidence contradicting Perez’s

justifications for the shooting, the district court

granted summary judgment, dismissing the case

with prejudice, erroneously concluding that the

Graham factors favored Perez’s use of force.

ROA.1165-ROA.1188.

This appeal challenges the district court’s flawed

conclusion, arguing that genuine factual disputes

exist regarding whether Perez’s decision to shoot an

unarmed man in the back was objectively reasonable

under clearly established law.

The Stop, the Pursuit, and the Wholly

Unnecessary Fatal Shooting

The events leading to McVae’s death were captured

on Trooper Perez’s body camera. ROA.271. In broad

daylight, Perez initiated a traffic stop on McVae’s

rented white Chevrolet sedan along Interstate 10

East, near Boerne, Texas, allegedly for following

another vehicle too closely ROA.271 at 1:25-1:33 and

ROA 271 at 0:35-1:35.

Upon stopping, McVae complied with Perez’s

instructions, providing information as requested,

though he was unable to produce identification.

ROA. 271 at 1:33-1:55. The encounter proceeded

with Perez questioning both McVae and his

passenger, during which McVae, admittedly,

provided a false name, ROA. 271 at 2:09-4:00, ROA.

271 at 4:01-4:16. ROA. 271 at 1:55. Nevertheless,

the interaction remained non-hostile.

Despite McVae displaying no aggressive behavior

and posing no immediate threat Perez escalated the

situation by conducting a pat-down search, having

McVae empty his pockets, during which he confirmed

that McVae was unarmed. ROA.271 at 17:03-17:25;

ROA.283-ROA.284. Yet, without legal justification,

Perez then sought to place McVae in handcuffs solely

based on uncertainty regarding his identity.

ROA.271 at 17:25-17:30.

In response, McVae pulled away and fled on foot—an

act of evasion, but not aggression. ROA.271 at 17:2517:45. ROA.271 at 17:25-17:45. Perez pursued

McVae, first by vehicle and then on foot, into a

wooded area. ROA.271 at 17:45-18:19. As McVae

ran—unarmed, visibly attempting to distance

himself rather than engage—Perez escalated to the

use of force. He discharged his taser, though it is

unclear whether the prongs made contact. ROA.271

at 18:25-18:28. McVae continued running through

the brush and woods then stumbled, Perez caught up

to him and forcefully struck him multiple times with

a closed fist and deployed his baton against McVae’s

legs. ROA.271 at 18:20-19:30. Despite being struck

multiple times, McVae managed to get up and flee

once again—unarmed, running away, and clearly not

posing an imminent threat to Perez or anyone else.

ROA.271 at 19:30.

Then, in a moment that indisputably defines the

unconstitutional nature of this case, as McVae

turned away and resumed running, Perez

unholstered his firearm and fired four shots at

McVae’s back—without warning. ROA.271 at 19:3019:35. The autopsy confirms that three bullets struck

McVae—all from behind. ROA.399-401. The medical

examiner concluded that McVae died from gunshot

wounds to the chest, which entered through his midright back. ROA.404. The trajectory of each bullet—

back to front, right to left, and downward—

demonstrates that McVae was actively fleeing when

he was shot in the back.

Perez later attempted to justify his use of deadly

force by alleging that McVae had thrown a rock at

him. ROA.286; ROA.1000; ROA.1084-1087; ROA.271

at 19:25-19:35. However, body camera footage, along

with testimony from Perez’s own expert, confirms

that when Perez unholstered his weapon and began

shooting, McVae’s hands were empty, and he was

running away. ROA.271 at 19:30-19:35; ROA.286;

ROA.820; ROA.821; ROA.824. The alleged rock does

not appear in the video except on the ground before

Perez fired his weapon. ROA.271 at 19:30-19:35.

Even assuming arguendo that McVae had thrown a

rock earlier, by the time Perez opened fire, McVae

was indisputably unarmed, running away, and did

not present an imminent threat of serious bodily

harm—a requirement under Tennessee v. Garner,

471 U.S. 1 (1985), for the use of deadly force. At the

moment Perez made the decision to shoot, there was

no legal or factual justification for using deadly force.

Proceedings Below

The district court erroneously granted summary

judgment in favor of Perez, concluding that his

actions were objectively reasonable and that no

constitutional

violation

occurred.

ROA.1165ROA.1182. Notably, the district court sidestepped

the second prong of the qualified immunity

analysis—whether the law was clearly established—

on the faulty basis that no violation had occurred.

ROA.1182. Cf. Baker v. Coburn, 68 F.4th 240, 244-45

(5th Cir. 2023) (showing the Fifth Circuit adopting

the majority standard including the determination of

whether the plaintiff has established that an

official’s alleged wrongful conduct violated clearly

established law); Kelly v. Foti, 77 F.3d 819, 822 (5th

Cir. 1996) (highlighting another case in which the

Fifth Circuit followed its precedent by addressing

whether the undisputed facts demonstrate that the

official's actions violated clearly established law at

the time of the conduct).

This failure was compounded by the district court’s

misapplication of circuit precedent. See, e.g.,

Edwards v. Oliver, 31 F.4th 925, 931 (5th Cir. 2022)

(applying its precedent from Lytle v. Bexar County,

which holds that using deadly force against a fleeing

suspect who does not pose a sufficient threat to

others violates clearly established law); Lytle v.

Bexar County, 560 F.3d 404, 417-18 (5th Cir. 2009)

(establishing that it is unreasonable for a police

officer to use deadly force against a fleeing felon who

does not pose a significant threat of harm to the

officer or others). Additionally, it ignored this Court’s

well-established ruling that an officer violates the

Fourth Amendment when using deadly force against

an unarmed, fleeing suspect who poses no immediate

threat. See Garner, 471 U.S. at 3 (holding that

deadly 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

officer or others”). Under these precedents, the

district court’s decision should have been clear:

shooting a fleeing, unarmed individual in the back

constitutes excessive force.

Further, the court erred in applying the “moment of

threat” doctrine, a flawed legal standard that

isolates an officer’s use of force to the precise

moment it occurs while disregarding the broader

context—including whether the officer unnecessarily

created the circumstances leading to the use of

deadly force. Cf. Harris v. Serpas, 745 F.3d 767, 77374 (5th Cir. 2014) (adopting the moment of threat

analysis and choosing not to opine on the

appropriateness of the officers’ conduct that led to

the moment of the shooting). Courts in multiple

circuits have rejected this doctrine, instead applying

a totality-of-the-circumstances test to determine

reasonableness. See, e.g., Amador v. Vasquez, 961

F.3d 721, 728-29 (5th Cir. 2020) (quoting the

Supreme Court’s decision to consider the totality of

the circumstances to determine whether the force an

officer used was ‘excessive’ or ‘unreasonable’).

The district court’s failure to properly consider the

totality of the circumstances, its misapplication of

Graham factors, and its improper reliance on the

moment of threat doctrine all led to an erroneous

grant of qualified immunity.

This Court has already addressed cases with

strikingly similar facts and reached the same

conclusion: deadly force is unconstitutional when

used against an unarmed, fleeing suspect who no

longer poses an immediate threat.

In Lytle v. Bexar County, 560 F.3d 404 (5th Cir.

2009), this court relied on the Seventh Circuit’s

decision in Ellis v. Wynalda, 999 F.2d 243 (7th Cir.

1993), which involved an officer who shot a suspect

in the back after the suspect had ceased any act of

aggression and was actively fleeing. The facts of Ellis

are highly relevant here.

There, Officer Wynalda responded to a burglary and

encountered Steven Ellis, who had broken into a

pharmacy using a sledgehammer. Upon arrival,

Wynalda observed the crime scene in disarray and

drew his firearm. Id. at 245. He then saw Ellis

walking away and pursued him. Id. When

confronted, Ellis—carrying a jacket in one hand and

a bag in the other—momentarily disobeyed

Wynalda’s order to stop, then suddenly turned and

threw a lightweight, 4–5-pound bag at the officer,

striking him in the shoulder before running away. Id.

at 245, 247.

The Seventh Circuit denied qualified immunity to

Officer Wynalda, holding that his use of deadly force

was unconstitutional once the suspect had turned

and was running away. Id. at 247. The court

reasoned that while throwing the bag may have been

risky or startling, it was not the equivalent of

threatening the officer with a weapon. Further, even

if Officer Wynalda had initially been justified in

fearing for his safety, that justification disappeared

the moment the bag fell to the ground and Ellis fled.

The same reasoning applies here—but with even

stronger justification for denying qualified immunity.

Unlike in Ellis, where the thrown bag at least made

contact, the rock McVae allegedly threw never even

hit Perez. ROA.291. Furthermore, Perez never saw

McVae reach for a weapon or pose any additional

threat after the rock had already landed on the

ground. Yet, despite this clear lack of danger, Perez

tried to change the narrative. He testified—contrary

to video evidence—that he shot McVae while McVae

was still holding and about to throw a rock.

ROA.287. This attempt to alter the facts is nothing

more than a desperate effort to justify an

unconstitutional use of deadly force.

But the record is unambiguous. At the moment Perez

unholstered his weapon and fired, McVae was

running away, unarmed, and posed no threat.

ROA.271 at 19:30-19:35; ROA.286; ROA.820;

ROA.291. As in Ellis, even if an earlier use of force

might have been justified, that justification had

ceased by the time the shots were fired.

The Circuit Split on the “Moment of

Threat”

The question before this Court is not merely about

this one case—it is about whether officers may

lawfully kill fleeing suspects with impunity, so long

as they manufacture a fleeting moment of

misperceived threat. The circuits are split on this

issue.

The Fourth Amendment prohibits a police officer

from using “unreasonable” force. U. S. CONST.

amend. IV. In Graham v. Connor, this Court held

that reasonableness depends on the totality of the

circumstances. See Graham v. Connor, 490 U.S. 386,

396, 109 S. Ct. 1865, 1872 (1989) (applying the

totality of circumstances standard and holding that

the reasonableness of the use of deadly force must be

evaluated based on the facts and circumstances of

each particular case (citing Tennessee v. Garner, 471

U.S. 1, 8-9 (1985))). Four circuits—the Second,

Fourth, Fifth, and Eighth—have adopted the

“moment of threat” doctrine, which improperly limits

the excessive force inquiry to the split second in

which an officer pulls the trigger, ignoring the

officer’s conduct leading up to that moment. In

contrast, eight circuits—the First, Third, Sixth,

Seventh, Ninth, Tenth, Eleventh, and D.C.

Circuits—have rejected this doctrine, requiring

courts to consider the totality of the circumstances,

including whether an officer’s actions unnecessarily

escalated the situation.

This division demands resolution by this Court. At

stake is nothing less than whether the Fourth

Amendment’s protections apply equally across the

country or whether certain jurisdictions will continue

to erode constitutional safeguards by excusing deadly

force under artificially constrained analyses.

For these reasons, this Court should grant this

petition.

REASONS FOR GRANTING THE PETITION

Petitioners’ First Issue:

A. The Shield of Qualified Immunity Cannot

Excuse the Fatal Shooting in the Back of an

Unarmed, Fleeing Man

The doctrine of qualified immunity, originally

intended as a safeguard for officials acting in good

faith, has increasingly been distorted into an

impervious barrier shielding law enforcement from

accountability. This Court has long recognized that

qualified immunity does not apply when an officer

violates

“clearly

established

statutory

constitutional rights of which a reasonable person

would have known.” Mullenix v. Luna, 136 S. Ct.

305, 308 (2015) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). The question before this Court

is straightforward: Can a state trooper gun down an

unarmed man, fleeing for his life, and then claim

immunity under the Constitution?

The two-pronged analysis for qualified immunity

requires courts to assess:

1. Whether, viewing the facts in the light most

favorable to the plaintiff, the officer’s conduct

violated a constitutional right; and

2. Whether that right was “clearly established”

at the time of the officer’s misconduct. Tolan v.

Cotton, 572 U.S. 650, 655-56 (2014).

The facts here leave no doubt that Perez’s actions

were not just unconstitutional but egregiously so.

B. An Unarmed Man Was Shot in the Back – A

Clear Violation of the Fourth Amendment

Petitioners assert that Respondent Perez deprived

Marcus McVae of his fundamental right to be free

from unreasonable seizures under the Fourth

Amendment by deploying excessive deadly force. The

jurisprudence is well settled: “When a plaintiff

alleges excessive force, the federal right at issue is

the Fourth Amendment right against unreasonable

seizures.” Tolan, 572 U.S. at 656 (citing Graham v.

Connor, 490 U.S. 386, 394 (1989)).

To prevail on an excessive force claim, a plaintiff

must show:

1. An injury;

2. That resulted directly from an officer’s use of

force; and

3. That

the

force

used

was

“objectively

unreasonable.” Estate of Aguirre v. City of San

Antonio, 995 F.3d 395, 406 (5th Cir. 2021) (citing

Flores v. City of Palacios, 381 F.3d 391, 396 (5th

Cir. 2004)).

Accordingly, the Court need only consider the third

element: reasonableness – i.e., the excessiveness of

Perez shooting McVae in the back under the

circumstances. Id. at 406-07 (citing Goode v. Baggett,

811 F. App'x 227, 231 (5th Cir. 2020)); see also

Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir.

2008) (finding that a genuine issue of material fact

remained regarding the potential constitutional

violation, despite the parties not disputing the

underlying facts, where the sole issue was whether

the officer’s actions were reasonable under the

circumstances).

McVae’s death indisputably constitutes an injury.

Marcus McVae’s death resulted directly from Perez’s

decision to fire his weapon, not once, but four

times—striking McVae three times in the back as

McVae ran for his life. This Court’s precedent is

clear: the shooting of an unarmed, fleeing individual

absent a significant threat of death or serious bodily

harm is an unreasonable and unconstitutional use of

deadly force. Garner, 471 U.S. at 3.

Perez cannot credibly argue that McVae posed a

threat. The trooper knew McVae was unarmed—

having frisked him minutes before the fatal shots.

The body-camera footage confirms that McVae was

turned away from Perez, was not armed, and was

running away. Yet Perez unholsters his weapon for

the first time and started firing at McVae’s back

until McVae collapsed into a creek, and bled out.

These actions were all captured on video and

constitute an undeniable violation of the Fourth

Amendment.

Not only did Perez fire his weapon at McVae when

McVae was unarmed and fleeing, but he continued to

fire—striking McVae three times from behind—as

McVae ran further and further away. ROA.271 at

19:30-19:35; ROA.286; ROA.820. Perez himself

admitted that he did not stop shooting until he saw

McVae collapse to the ground. ROA.286.

This Court has made clear that force that is

reasonable at one moment can become excessive the

next if the justification for its use disappears. Baker

v. Coburn, 68 F.4th 240, 249 (5th Cir. 2023).

In Baker, officers responded to a stolen vehicle and

fired shots at the driver when they believed he was

about to run them over. Id. at 243. However, as the

suspect maneuvered away from the officers and no

longer posed an immediate threat, the officers

continued to fire—killing the driver. Id. at 243-44.

The court granted qualified immunity for the initial

shots but denied it for the subsequent shots fired

after the threat had ceased. Id. at 247-51.

This principle was also reinforced in Lytle v. Bexar,

where the Fifth Circuit denied qualified immunity to

an officer who shot at a fleeing vehicle that was

already several houses down the street. See Lytle,

560 F.3d at 417-18. This Court ruled that even if an

officer was in danger at an earlier moment, the

continued use of deadly force must still be justified

by an ongoing threat. Id. at 414.

Not only did Perez fire his weapon at McVae when

McVae was already unarmed and fleeing, but he

continued to fire—striking McVae three times from

behind—as McVae ran further and further away.

ROA.271 at 19:30-19:35; ROA.286; ROA.820. Perez

himself admitted that he did not stop shooting until

he saw McVae collapse to the ground. ROA.286.

In Baker, officers responded to a stolen vehicle and

fired shots at the driver when they believed he was

about to run them over. Id. at 243. However, as the

suspect maneuvered away from the officers and no

longer posed an immediate threat, the officers

continued to fire—killing the driver. Id. at 243-44.

The court granted qualified immunity for the initial

shots but denied it for the subsequent shots fired

after the threat had ceased. Id. at 247-51.

This principle was also reinforced in Lytle v. Bexar

County, where the Fifth Circuit denied qualified

immunity to an officer who shot at a fleeing vehicle

that was already several houses down the street. The

Fifth Circuit ruled that even if an officer was in

danger at an earlier moment, the continued use of

deadly force must still be justified by an ongoing

threat. Id. at 414.

The paramount facts are: when Perez shot McVae

from behind three times, Perez knew McVae was

unarmed, McVae was running away from Perez in

an unpopulated, wooded area during the afternoon of

a well-lit day, Perez knew any justification for the use

of deadly force had ceased, and Perez had sufficient

time to perceive the lack of threat justifying the use of

deadly force. ROA.283; ROA.271 at 9:30-19:35;

ROA.820; ROA.823; ROA.824; ROA.291. This was

reflected by Petitioners’ expert, Natasha Powers, at her

Deposition: “Q. -- everything else being equal. What

I'm trying to do is nail down what exactly Trooper

Perez did wrong, in your opinion? We've talked about

the rock. We've talked about the location of the shots,

and now I want to talk about the timing of the

shots.” “A. Okay.” “Q. So is the issue here the timing

of the shots?” “A. No. The issue is Marcus McVae was

running away and Trooper Perez shot him. Whether

Marcus McVae backpedaled in a front motion and

was forward facing Trooper Perez, or he's running

and his back is away, or fa- -- his back is towards

Trooper Perez, if that makes sense. Either way, he

shot an unarmed person who was running away from

a scene trying to get away because that seems like

that's what he was doing. The moment he bolted

across the freeway, he was trying to get away from

the trooper, for whatever reasons we don't know, and

Trooper Perez made the decision to shoot him.” ROA

1112.

The following undisputed facts – applicable to the

primary focus of the reasonableness inquiry in this

case – demonstrate that McVae did not pose an

immediate threat of death or serious bodily injury to

Perez or to others, nor any physical threat, and

therefore weigh heavily in favor of the conclusion that

Perez’s use of deadly force against McVae was

objectively unreasonable.

Here, the undisputed material facts are as follows:

1. Marcus McVae ran on foot away from Jesse Perez

after a traffic stop. ROA.271 at 17:25-17:45.

2. McVae was unarmed. ROA.283.

3. Perez knew that McVae was unarmed because

Perez searched McVae prior to the foot chase and

found no weapons. ROA.283.

4. When other law enforcement officers arrived on

scene after the shooting, Perez told them McVae

was unarmed. ROA.283.

5. Perez suspected McVae of a minor traffic

infraction for following the vehicle in front of him

too closely and non-violent misdemeanors for

failing to identify himself and evading arrest on

foot. ROA.284.

6. When the foot chase ensued, Perez did not have

probable cause or even reasonable suspicion that

McVae had committed any violent crime or felony

offenses. ROA.284.

7. Marcus McVae never struck Jesse Perez. ROA.271

at 17:25-19:35.

8. McVae never made any verbal threats toward

Perez. ROA.271 at 17:25-19:35.

9. Perez fired four shots at McVae, f a t a l l y

striking McVae three times. ROA.271 at 19:3019:35.

10. All three of the bullets that struck McVae,

entered his body from behind. ROA.399ROA.401.

11. None of the bullets that struck McVae were fired

at close range. ROA.399- 401; ROA.404; ROA.271

at 19:30-19:35

12. Perez made the decision to shoot after he

had unholstered his firearm. ROA.286.

13. Prior to Perez unholstering his firearm, McVae

had already turned to face away from Perez.

ROA.271 at 19:30.

14. At the time that Perez began firing at McVae,

McVae had already been running away from

Perez. ROA.271 at 19:25-19:35.

15. By the time Perez unholstered his firearm and

began firing at McVae, there were no rocks in

McVae’s hands, and he was not bending over to

pick up a rock. ROA.291; ROA.271 at 19:30-19:35;

ROA. 820

16. Perez testified that he kept firing his gun at

McVae until McVae fell into the river, despite

McVae running away from Perez unarmed.

ROA.286.

17. When Perez shot McVae, they were in a wooded

area with no other people around and McVae was

not running in the direction of any person;

accordingly, McVae did not present an immediate

threat to any person at the time Perez shot him

three times from behind. ROA.271 at 19:30-19:35.

18. Perez’s own expert testified that the justification

for the use of deadly force ceased when the rock,

which Perez alleges McVae threw, was on the

ground past Perez. ROA.820. This occurred before

Perez even unholstered his weapon and

subsequently made the decision to shoot.

ROA.820; ROA.271 at 19:25-19:35; ROA.286.

19. Perez’s expert testified it takes an officer 1/3 of

a second to stop shooting. ROA.823.

20. Perez did not fire his first shot at McVae until

over a full second had passed since his own expert

testified the justification for the use of deadly

force ceased. ROA.821.

21. Perez didn’t fire his second shot until 1.7 seconds

had passed since his own expert testified the

justification for the use of deadly force ceased.

ROA.824.

22. Perez did not fire his third shot at McVae until

over two seconds had passed since his own expert

testified the justification for the use of deadly

force ceased. ROA.824.

23. Perez did not fire his fourth shot at McVae until

almost two and a half seconds had passed since his

own expert testified the justification for the use of

deadly force ceased. ROA.824.

24. Further, Perez testified that he did not fire any

shots after he made the decision to stop shooting.

ROA.286.

25. Perez did not decide to stop shooting until over

two and a half seconds after the justification for

the use of deadly force ceased. ROA.820;

ROA.824; ROA.271 at 19:30-19:35.

The clear precedent of this Court states that the use

of deadly force against a fleeing suspect who poses no

harm to others violates clearly established law.

Edwards, 31 F.4th at 931; citing Lytle, 560 F.3d at

417-18. This comports with longstanding Supreme

Court precedent holding that an officer violates the

Fourth Amendment by shooting an unarmed and

fleeing person who does not pose an imminent

threat of death or serious physical injury to the

officer or another person. Garner, 471 U.S. at 3.

The law is clear: an officer cannot use deadly force

against an unarmed suspect who is actively fleeing

and poses no immediate threat.

Perez’s actions violate the fundamental principles set

forth in Garner, Graham, Ellis, Baker, and Lytle.

The attempts to distort the facts of this case cannot

erase the truth captured on video. This Court must

step in to ensure that the constitutional limits on

police use of deadly force are not rewritten or

ignored.

Perez’s continued shooting was not justified under

any reasonable interpretation of the law. The facts,

video evidence, and legal precedent all point to one

conclusion: Perez’s actions were unconstitutional.

For these reasons, we urge this Court to grant review

and uphold the rule that officers may not use deadly

force against an unarmed, fleeing individual who

poses no immediate danger.

C. Perez Shot McVae in the Back Knowing He

Was Unarmed – This is Not Law Enforcement,

This Is an Execution

At the heart of this case lies an inescapable reality:

Perez shot McVae in the back multiple times, fully

aware that he was unarmed, running, and posed no

immediate danger to anyone. The body-camera

footage captures a stark truth—a law enforcement

officer who, rather than pursuing an arrest, chose to

act as judge, jury, and executioner.

Even if, for argument’s sake, McVae had thrown a

rock at Perez at some earlier moment—an assertion

in dispute—the evidence is unequivocal: when Perez

pulled the trigger, McVae’s hands were empty, and

he was running away. This Court has consistently

held that deadly force is justified only when “it is

necessary to prevent 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.” Garner, 471 U.S. at 3. Here,

there was no threat, no justification—only gunfire

aimed at an unarmed man’s back.

At his deposition, Perez apparently understood the

problem with shooting McVae, recognizing McVae

was unarmed and running away from Perez at the

time he shot him, because Perez attempted to change

the facts from what the video evidence shows. Perez

testified that the justification for his use of deadly

force against McVae was that McVae was in the

process of throwing a rock at him – not that McVae

had just thrown a rock and was now unarmed.

ROA.287. Jesse Perez’s deposition record is clearly

contradicted by his body camera video. Id. Perez

attempted to change the facts in his deposition to

make appear that when he fired his weapon, McVae

still had the rock in his hand presenting an

imminent threat to McVae. ROA.287. ROA.287. This

is false.

The video evidence is clear – and Perez even

admitted during his deposition – that the rock, which

Perez claims McVae threw at him, was on the ground

behind Perez before Perez unholstered his firearm.

ROA.271 at 19:25-19:35; ROA.291. Perez’s expert also

testified that by the time Perez unholstered his

firearm, the justification for the use of deadly force

had ceased. ROA.820. Perez unholstered his firearm,

the justification for the use of deadly force had

ceased. ROA.820.

Page 54

“Q. That’s when you first shot?

A. Correct, I believe yes.

Q. Okay. So he still had the rock when you shot him?

A. Yes, he had the rock.

Q. Okay. And the reason why the deadly force was

justified at that time is because he literally had a

rock that he could hit you with, correct?

A. Correct.

Q. Okay. And so that’s why you shot at that time.

A. Correct.

Q. Okay. If he didn’t have the rock in his hand and

let’s say he already threw the rock before you shot,

would you still have been justified in using deadly

force?

A. I—I shot because I saw him with possession of the

rock throwing it towards me, sir.”

The following still images from Perez’s body camera

video show McVae’s location at each of Perez’s four

gunshots.

The below image taken from Perez’s expert’s

condensed sub-clip of Perez’s body camera shows

where McVae was located when Perez fired his first

gunshot. It shows McVae’s feet as he is facing away and

running away from Perez. His white sock is identified

with the red arrow. This image demonstrates that

McVae was multiple steps away from Perez and

moving away from him when he started firing his

weapon.

ROA.746 at 1:11:538.

The below image taken from Perez’s expert’s

condensed sub-clip of Perez’s body camera shows

where McVae was located when Perez fired his second

gunshot. It shows McVae’s legs and back as he is

facing away and running away from Perez. The back

of McVae’s white shirt is identified with the red

arrow. This image demonstrates that McVae was

running further and further away from Perez when

Perez continued firing his weapon.

ROA.746 at 1:12.138.

The below image taken from Perez’s expert’s

condensed sub-clip of Perez’s body camera shows

where McVae was located when Perez fired his third

gunshot. It shows McVae facing away and running

away from Perez. The back of McVae’s white shirt is

identified with the red arrow. This image demonstrates

that McVae was running further and further away

from Perez when Perez continued firing his weapon.

ROA.746 at 1:12.505.

The below image taken from Perez’s expert’s

condensed sub-clip of Perez’s body camera shows

where McVae was located when Perez fired his fourth

gunshot. It shows McVae’s shirt as he is falling into the

creek after being shot by Perez. The back of McVae’s

white shirt is identified with the red arrow. This

image demonstrates that McVae was running further

and further away from Perez when Perez continued

firing his weapon.

ROA.746 at 1:12.906.

The video evidence and testimony in the record are

clear that at the time Perez unholstered his weapon

and fired it, McVae was running away from Perez

without anything in his hands. ROA.271 at 19:3019:35; ROA.286; ROA.820; ROA.291. See generally

Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769,

1776 (2007) (holding that when opposing parties

present conflicting stories, and one version is clearly

contradicted by the evidence to the point that no

reasonable jury could accept it, the court should not

adopt that version when ruling on a summary

judgment motion). Thus, like in Ellis, even if Perez

may have been justified in using deadly force at some

prior point when he alleges McVae was throwing a

rock at him, Perez was not justified in using deadly

force against McVae after the rock landed on the

ground without injuring Perez and McVae had

turned and was running away from him. See

generally, Ellis, 999 F.2d at 247 (reversing previous

judgement granting an officer qualified immunity on

the grounds that although it was possible that the

plaintiff was carrying a concealed weapon, as it is

with any felon, the officer had no specific reason to

believe that Ellis was armed).

Not only did Perez initially shoot at McVae when

McVae was unarmed and fleeing, but Perez continued

shooting at McVae striking him three times from

behind despite McVae running further and further

away from Perez – only decreasing any alleged risk

McVae posed. ROA.271 at 19:30-19:35; ROA.286;

ROA.820. Perez testified that the justification for his

use of force did not cease until he saw McVae going

down toward the ground after shooting him.

ROA.286.

Appellants below presented competent and compelling

evidence establishing genuine disputes of material

fact, warranting the denial of qualified immunity

and summary judgment, allowing the case to be

determined by a jury. Established precedent holds

that the use of deadly force against a fleeing suspect

who does not pose sufficient harm to others violates

clearly established law. Edwards v. Oliver, 31 F.4th

925, 931 (5th Cir. 2022) (citing Lytle v. Bexar County,

560 F.3d 404, 417-18 (5th Cir. 2009)). This aligns

with longstanding Supreme Court precedent holding

that an officer violates the Fourth Amendment by

shooting an unarmed, fleeing individual who does

not pose an imminent threat of death or serious

physical injury. Garner, 471 U.S. at 3.

In this case, Perez shot and killed McVae despite

knowing that McVae was unarmed and fleeing.

ROA.271 at 19:30-19:35; ROA.283. Perez attempts to

justify his actions by alleging that McVae threw a

rock at him, a fact disputed by Petitioners and not

corroborated by the video evidence. ROA.286;

ROA.1000; ROA.1084-1087; ROA.271 at 19:25-19:35.

This constitutes a material factual dispute requiring

resolution by a jury. Moreover, even if the jury

determined that McVae had thrown a rock, by the time

Perez unholstered his firearm and began firing, McVae

was unarmed, had no rocks in his hands, and was not

attempting to pick up another. ROA.291; ROA.271 at

19:30-19:35; ROA.820. Instead, he was actively

fleeing, empty-handed and unarmed. ROA.283;

ROA.291; ROA.271 at 19:30-19:35; ROA.820.

This Court has consistently held that force

reasonable at one moment can become unreasonable

if its justification ceases. Lytle, 560 F.3d at 413.

Here, any arguable justification for shooting McVae

had dissipated before Perez unholstered his weapon.

ROA.820. Despite this, Perez continued firing four

times even as McVae moved further away, ultimately

collapsing him into a creek. ROA.283; ROA.286;

ROA.291; ROA.271 at 19:30-19:35; ROA.820.

Perez further argues that he lacked sufficient time to

cease firing, a position the district court improperly

accepted by favoring Appellee's evidence over

Appellants'. ROA.1177 (“Trooper Perez contends that

the Court must consider that he ‘did not know, while

fearing for his life and viewing over his firing

weapon, that [Marcus] had spun around immediately

after hurling the rock, nor did [Trooper] Perez know

that [Marcus] had commenced running away, all

within fractions of a second.’ (Dkt. # 33 at 15.)”). No

such rock is seen on Perez’s body worn camera. Video

does not lie. Whether Perez had sufficient time to

perceive the absence of a threat and cease firing is a

factual question for the jury. Lytle, 560 F.3d at 414

(holding that “taking the facts in the light most

favorable to the plaintiff, however, [the officer] could

have had sufficient time to perceive that any threat

to him had passed by the time he fired.").

Perez’s expert claims a study suggests it takes

approximately 1/3 of a second to stop shooting. ROA.823.

However, Perez took over two and a half seconds to

unholster his firearm and fire four shots—exceeding

the expert’s timeframe by over 600%. ROA.824;

ROA.271 at 19:30-19:35. The jury could reasonably

conclude that Perez had ample time to either refrain

from shooting or cease firing after each shot.

Petitioners’ Second Issue

A. The “Moment of Threat” Doctrine Has No

Place in This Case

The lower court’s misapplication of the “moment of

threat” doctrine distorts this Court’s precedent and

ignores the unambiguous video evidence. The

doctrine permits courts to isolate the use of force to

the instant it occurs, without considering the officer’s

actions leading up to the event. This doctrine is

misapplied here because the justification for deadly

force had already ceased before Perez even

unholstered his weapon.

The lower court’s decision is inconsistent with this

Court’s precedent requiring an analysis of whether

force remains justified at the time of its use. See

Graham, 490 U.S. at 386; Garner, 471 U.S. at 1. The

ruling below grants officers a broad license to use

force even when justification ceases, conflicting with

the constitutional principles articulated by this

Court.

It is respectfully submitted that the circuit courts

and district courts below need more clarity here

because the body count of dead victims and their

families seeking to redress their decedent’s

constitutional rights keep mounting and have

reached an unbearable level.

B. Law Enforcement Need Clear Guidance From

This Court

Law enforcement desperately need better clearer

guidance on the need to prevent taking lives

whenever possible. The Fifth Circuit has

acknowledged that even when an officer faces a

threat at one moment, “an exercise of force that is

reasonable at one moment can become unreasonable

in the next if the justification for the use of force has

ceased.” Lytle v. Bexar County, 560 F.3d 404, 414

(5th Cir. 2009). This principle alone demands

reversal.

The Fifth Circuit’s approach diverges from other

circuits that consider pre-shooting conduct in

excessive force analysis. See e.g., Abraham v. Raso,

183 F.3d 279, 294 (3d Cir. 1999) (holding that preseizure conduct, including all events during the

officers' pursuit of Abraham, is relevant in

evaluating the reasonableness of Raso's shooting);

Ellis v. Wynalda, 999 F.2d 243, 247 (7th Cir. 1993)

(considering the circumstances immediately before

the officer shot at the plaintiff in order to weigh the

event in its totality). This Court should resolve this

inconsistency to ensure uniform application of

excessive force jurisprudence and thereby save lives.

The “moment of threat” doctrine effectively

immunizes officers from liability by disregarding

their own culpability in creating dangerous

situations. The consequences of this doctrine raise

significant constitutional and public policy concerns,

necessitating this Court’s review.

CONCLUSION

This case presents a profound constitutional question

of national importance: whether an unarmed

individual, who is attempting to flee, retains a

clearly established right to be free from deadly force.

The Fifth Circuit’s ruling effectively expands the

doctrine of qualified immunity beyond constitutional

limits, shielding officers from accountability even in

cases of clear constitutional violations. Such an

approach not only erodes public trust in the judicial

system but also emboldens further abuses by law

enforcement.

Additionally, this case highlights a widening circuit

split regarding the appropriate standard for

evaluating excessive force claims. Some circuits like

the Fifth Circuit limit their analysis to the "moment

of threat" when force is used, while others consider

the totality of the circumstances leading up to the

use of force. Without this Court’s intervention, the

application of constitutional protections will continue

to vary arbitrarily based on jurisdiction, fostering

legal uncertainty and undermining the uniform

enforcement of civil rights.

This case is not merely about a legal error; it is about

whether the Constitution’s promise of justice applies

to all Americans, or whether it is selectively granted.

If this Court declines review, it signals that an officer

may, with impunity, shoot an unarmed black man in

the back as he flees, despite longstanding precedent

forbidding such conduct.

The qualified immunity doctrine, stretched beyond

its intended purpose, should not shield an officer

from accountability when he fires bullets into the

back of an unarmed man. This case represents a

pivotal opportunity for this Court to reaffirm that

the right to life, the right to be free from excessive

force, and the principles of equal protection under

the law are not empty words, but constitutional

imperatives.

The question therefore becomes, now that we know

these policy considerations were based on invalid

assumptions, what should the Court do with the

qualified immunity jurisprudence it created? Simply

following § 1983’s text as written with consideration

of the important rights it was intended to protect is

the truest and most honest approach.

Alternatively, the Court may choose to modify

Mitchell v. Forsyth to the extent it authorizes

interlocutory appeals of police officers in excessive

force cases. Fourth Amendment cases are fact

intensive and therefore constitute a class of cases

where early discovery should be encouraged not

discouraged.

These and other potential solutions should be fully

explored in merits briefing to remedy the current

state of civil rights jurisprudence that currently

works in derogation of the people’s rights instead of

protecting them.

For these reasons, Petitioners respectfully urge this

Court to grant the writ of certiorari.

Respectfully submitted,

EDWARD L. PIÑA

Counsel of Record

MATTHEW N. GOSSEN

Edward L. Pina & Associates, P.C.

8118 Datapoint Drive

San Antonio, Texas 78229

Telephone: (210) 614-6400

Email:epina@arielhouse.com

Counsel for Petitioner

APPENDIX

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

OCTOBER 30, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

W E S T E R N DI S T R IC T O F T E X A S ,

S A N A N T ON IO DI V I S ION, F I L E D

SEPTEMBER 12, 2023 . . . . . . . . . . . . . . . . . . . . . . 14a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT, FILED OCTOBER 30, 2024

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 23-50703

ETHEL “LAVERNE” MCVAE, Individually, and

on Behalf of THE ESTATE OF MARCUS MCVAE,

Deceased; WILEY WEST, Individually, and on Behalf

of THE ESTATE OF MARCUS MCVAE, Deceased,

Plaintiffs—Appellants,

versus

JESSE PEREZ,

Defendant—Appellee.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:21-CV-366-DAE

October 30, 2024, Filed

Before Jones, Willett, and Engelhardt, Circuit Judges.

Kurt D. Engelhardt, Circuit Judge:

Marcus McVae was pulled over for a traffic violation,

gave the officer a fake identity, fled on foot, and was

Appendix A

undeterred by the officer’s taser. Once the officer caught

up to him, a physical altercation ensued. McVae broke free

from the altercation and threw a rock at the officer before

attempting to flee again. The officer then fatally shot him.

McVae’s parents sued the officer under 42 U.S.C. § 1983,

alleging that he used excessive force in violation of McVae’s

Fourth Amendment right to be free from unreasonable

seizure. The district court granted summary judgment

for the officer. We AFFIRM.

Texas State Trooper Jesse Perez was patrolling

Interstate 10 in Kendall County, Texas on April 11, 2019,

when he pulled over a white sedan for following another

vehicle too closely.1 Trooper Perez advised the driver of

the reason for the stop and asked for his license. Upon

noticing that the vehicle was a rental car, he asked for the

rental car agreement too. The driver seemingly searched

for the documents in his car and pockets without success,

prompting Trooper Perez to ask him to step out of the car.

The driver exited the car and informed Trooper Perez

that he did not have his license on him.

While we now know that this driver was Marcus

McVae, Trooper Perez was unaware of his identity at the

time. Instead, McVae told Trooper Perez that his name

1. Trooper Perez’s body camera recorded the events that

follow.

Appendix A

was Montrea McCullough, that he was born on June 1,

1991, and that he could not remember his social security

number or driver’s license number. Trooper Perez asked

both McVae and his passenger several questions over

approximately ten minutes before returning to his patrol

car to look up “Montrea McCullough.” Apparently having

difficulties locating a “Montrea McCullough” in the

system, Trooper Perez asked his age. McVae responded

“twenty-six,” despite that the birthday he gave made him

almost twenty-eight. When questioned further, McVae

confirmed that Trooper Perez had his correct birthday

and the correct spelling of his name, but he eventually

admitted that he is not a licensed driver.

After receiving McVae’s consent, Trooper Perez

patted him down and removed a vape pen from his

pocket. He then gave McVae one last opportunity to

honestly identify himself. When McVae again failed to

identify himself, Trooper Perez consensually searched his

pockets, instructed him to put his hands behind his back,

and informed him that he was being detained until his

identity could be determined. As Trooper Perez attempted

to handcuff him, McVae broke free and sprinted across

the interstate. Trooper Perez immediately jumped in

his patrol car and drove momentarily before exiting the

vehicle to chase McVae on foot. He followed McVae into

a wooded area and across a shallow creek while yelling,

“Get on the ground!” and “I’m going to shoot you!” before

deploying his taser. It is unclear whether the taser made

contact with McVae, who continued to run undeterred.

McVae eventually tripped, allowing Trooper Perez

to catch up to him. Trooper Perez continued yelling at

Appendix A

McVae to get on the ground while tasing him. McVae, still

apparently unphased by the taser, struck Trooper Perez,

and a physical altercation on the ground ensued. During

this altercation—which left Trooper Perez with a broken

finger—an out-of-breath Trooper Perez repeatedly yelled

at McVae to put his hands behind his back. McVae refused

to comply and fought back, even after Trooper Perez

repeatedly struck him with his fists and baton. McVae

eventually managed to break free from Trooper Perez’s

grasp and stood up facing Trooper Perez, next to several

rocks. Trooper Perez then moved so his body camera no

longer captured McVae, right as a rock at least the size of a

softball whirled past him from McVae’s direction. Trooper

Perez then immediately fired his gun four times, all within

less than 2.5 seconds of when the rock passed him. He

ceased shooting when he saw McVae fall into a creek.

An autopsy revealed that three of the shots hit McVae,

all from behind. Two of the shots were fatal. Trooper Perez

testified that he unholstered his gun when he saw McVae

reach for a rock, and that he decided to fire the gun when

he saw McVae throw the rock at his head.

McVae’s parents, Plaintiffs-Appellants Ethel McVae

and Wiley West, sued Trooper Perez under 42 U.S.C.

§ 1983, alleging that he used excessive force in violation

of McVae’s Fourth Amendment right to be free from

unreasonable seizure. Trooper Perez sought summary

judgment on the basis that he is entitled qualified

immunity. Relying on Trooper Perez’s body camera

Appendix A

footage, the district court granted his motion for summary

judgment. Plaintiffs appeal that decision.

II.

We review orders granting summary judgment de

novo. In re La. Crawfish Producers, 852 F.3d 456, 462

(5th Cir. 2017). Summary judgment is typically proper “if

the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). A defendant’s

“good-faith assertion” of qualified immunity in a motion

for summary judgment shifts this burden, however. Ratliff

v. Aransas County, 948 F.3d 281, 287 (5th Cir. 2020).

To survive summary judgment, the plaintiff must then

present evidence demonstrating that the defense does not

apply. Id. There is no genuine dispute if a reasonable jury

could not return a verdict for the plaintiff. Roger Poole

v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). 2

We review summary judgment evidence in the light

most favorable to the nonmoving party. Carnaby v. City

2. This court has two different published opinions titled Poole

v. City of Shreveport. See Poole v. City of Shreveport, 691 F.3d

624 (5th Cir. 2012); Poole v. City of Shreveport, 13 F.4th 420 (5th

Cir. 2021). While the cases are not related and involve different

plaintiffs, both are summary-judgment-stage excessive-force

cases involving traffic stops. We reference both in this opinion,

as did both parties in their respective briefs. To avoid confusion,

we cite these opinions as Roger Poole v. City of Shreveport and

Janice Poole v. City of Shreveport.

Appendix A

of Houston, 636 F.3d 183, 187 (5th Cir. 2011). But when

video footage captures the incident at issue, we rely on the

facts depicted in the footage. Id. (citing Scott v. Harris, 550

U.S. 372, 381, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007)).

The only contested material fact is whether McVae

threw the rock that flew past Trooper Perez. The record

contains two relevant pieces of evidence: Trooper Perez’s

testimony that McVae threw the rock at him, and the body

camera footage, which verifies Trooper Perez’s testimony.

While the body camera footage does not show McVae

throwing the rock, the rock came from his direction while

he was standing near several rocks and facing Trooper

Perez. It is undisputed that only Trooper Perez and McVae

were present, eliminating anyone else. And given the size

of the rock, and the speed and angle at which it flew past

Trooper Perez, no reasonable jury could conclude that the

rock was inadvertently kicked. Plaintiffs do not provide

any other explanation for the source of the rock. Because

McVae is deceased and there were no other witnesses, the

body camera footage and Trooper Perez’s testimony that

McVae threw the rock are the only evidence that would

be presented at trial.

Simply because the footage does not show McVae

throwing the rock does not necessarily create a genuine

dispute. Reviewing the evidence in the light most favorable

to Plaintiffs, as we must for summary judgment, no

reasonable jury could conclude that McVae did not throw

Appendix A

the rock at Trooper Perez. Cf. Janice Poole v. City of

Shreveport, 13 F.4th 420, 424 (5th Cir. 2021) (finding a

genuine dispute of material fact because a jury could

find an officer’s testimony that he did not know that the

suspect’s hands were empty inconsistent with dashcam

footage that showed the suspect’s empty hands).

III.

Having determined that McVae threw the rock at

Trooper Perez, we proceed to whether Trooper Perez is

entitled qualified immunity. Qualified immunity shields

government officials from civil liability if they could have

reasonably believed that their actions were legal. Pearson

v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed.

2d 565 (2009). “Put simply, qualified immunity protects

all but the plainly incompetent or those who knowingly

violate the law.” Mullenix v. Luna, 577 U.S. 7, 12, 136 S.

Ct. 305, 193 L. Ed. 2d 255 (2015) (internal quotation marks

and citation omitted). A two-prong inquiry determines

whether qualified immunity applies. The first prong asks

whether the facts show that the official’s conduct violated

a statutory or constitutional right. Ratliff, 948 F.3d at 287

(citing Tolan v. Cotton, 572 U.S. 650, 655–56, 134 S. Ct.

1861, 188 L. Ed. 2d 895 (2014)). The second prong asks

whether that right was “clearly established” at the time

of the violation. Id. (citing Tolan, 572 U.S. at 656). If the

answer to either prong is “no,” qualified immunity applies.

Appendix A

We start with whether Plaintiffs have established

that Trooper Perez violated one of McVae’s constitutional

rights. Plaintiffs allege that by shooting McVae from

behind, Trooper Perez used excessive force in violation

of McVae’s Fourth Amendment right to be free from

unreasonable seizure because McVae was an unarmed

fleeing person who did not pose an imminent threat of

death or serious physical injury.

An officer has the right to arrest a person who he has

probable cause to believe committed a crime. Tennessee

v. Garner, 471 U.S. 1, 7, 105 S. Ct. 1694, 85 L. Ed. 2d 1

(1985). This right to make an arrest necessarily includes

the right to use some degree of physical coercion or threat

to effectuate the arrest. Graham v. Connor, 490 U.S. 386,

396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). An officer’s

use of excessive force, however, implicates the suspect’s

Fourth Amendment right to be free from unreasonable

seizure. Id. To establish an excessive force claim, a plaintiff

must prove “(1) an injury, which (2) resulted directly and

only from the use of force that was clearly excessive to the

need; and the excessiveness of which was (3) objectively

unreasonable.” Jackson v. Gautreaux, 3 F.4th 182, 186 (5th

Cir. 2021) (citation omitted). Because Trooper Perez used

deadly force, injury and causation are established, leaving

only the “excessive” and “reasonableness” elements. See

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

Cir. 2021).

Appendix A

To determine whether the force used on a suspect

was excessive, we consider the three Graham factors:

(1) the severity of the suspected crime; (2) whether the

suspect posed an immediate threat to the safety of the

officer or others; and (3) whether the suspect was actively

resisting arrest or attempting to evade arrest by flight.

Id. (citing Graham, 490 U.S. at 396). When an excessive

force claim involves deadly force, the threat-of-harm

factor “typically predominates,” id., and the excessive and

reasonableness elements become two sides of the same

coin: “An officer’s use of deadly force is not excessive, and

thus no constitutional violation occurs, when the officer

reasonably believes that the suspect poses a threat of

serious harm to the officer or to others,” Manis v. Lawson,

585 F.3d 839, 843 (5th Cir. 2009).

Reasonableness is an objective standard, and we must

judge an officer’s conduct “in light of the circumstances

confronting him, without the benefit of hindsight.” Id.

We must take heed to not define the relevant moment too

narrowly but rather “consider all of the circumstances

leading up to that moment, because they inform the

reasonableness of [the officer’s] decisionmaking.” Mendez

v. Poitevent, 823 F.3d 326, 333 (5th Cir. 2016). “The

calculus of reasonableness” must also “embody allowance

for the fact that police officers are often forced to make

split-second judgments—in circumstances that are tense,

uncertain, and rapidly evolving—about the amount of

force that is necessary in a particular situation.” Graham,

490 U.S. at 396–97.

10a

Appendix A

“Where the officer has probable cause to believe

that the suspect poses a threat of serious physical harm,

either to the officer or to others, it is not constitutionally

unreasonable to prevent escape by using deadly force.”

Garner, 471 U.S. at 11–12. “[I]f the suspect threatens the

officer with a weapon or there is probable cause to believe

that he has committed a crime involving the infliction or

threatened infliction of serious physical harm, deadly force

may be used if necessary to prevent escape, and if, where

feasible, some warning has been given.” Id.

That is precisely what happened here. While the events

leading to McVae’s death started with a simple traffic

violation, things quickly escalated. Once McVae threw the

rock at Trooper Perez, the crime at issue was much more

severe: aggravated assault of a public servant, a firstdegree felony that includes threatening an officer with a

weapon and serious physical harm. 3 See Tex. Penal Code

§ 22.02(b)(2)(B). Trooper Perez had already warned McVae

3. Intentionally or knowingly threatening a public servant

with imminent bodily injury using a deadly weapon while the

public servant is lawfully discharging an official duty constitutes

aggravated assault of a public servant. See T ex . P enal Code

§§ 22.01(a)(2), 22.02(a)–(b)(2)(B). “Deadly weapon” as used in the

Texas Penal Code means “anything that in the manner of its use or

intended use is capable of causing death or serious bodily injury.”

Tex. Penal Code § 1.07(a)(17)(B). This definition is “exceedingly

broad.” Prichard v. State, 533 S.W.3d 315, 320 (Tex. Crim. App.

2017). “[T]here is no limitation as to what type of thing may be

considered a deadly weapon.” Id. The rock that McVae threw is

covered by this definition of “deadly weapon.”

11a

Appendix A

that he was “going to shoot [him],” and had attempted to

subdue him using a taser, a baton, and physical force. But

McVae “proved to be a dangerous opponent,” and these

escalating attempts failed. See Mendez, 823 F.3d at 332.

When McVae threw the rock, Trooper Perez had to make

an immediate reflexive decision of how to protect himself

in a rapidly evolving situation against an increasingly

violent individual who had repeatedly resisted lesser

forms of force. See id.; Graham, 490 U.S. at 396–97.

Plaintiffs’ use of several frame-by-frame screenshots from

the body camera footage to dissect events that occurred

in less than 2.5 seconds is the “sort of Monday morning

quarterbacking” that our precedent proscribes. See

Harmon, 16 F.4th at 1165.

A reasonable officer could have believed that McVae

posed a threat of serious harm even if he was running

away and unarmed in the exact moment that Trooper

Perez shot him. Plaintiffs’ reliance on Lytle v. Bexar

County, Baker v. Coburn, and Janice Poole v. City of

Shreveport to conclude otherwise is misplaced. Lytle and

Baker are both in a line of cases involving officers who

shot at fleeing cars in response to purported threats of a

driver intentionally driving into the officer. See Lytle v.

Bexar County, 560 F.3d 404, 412 (5th Cir. 2009); Baker v.

Coburn, 68 F.4th 240, 249 (2023). Excessive force cases

“addressing suspects fleeing in motor vehicles often

focus on the position of the officer relative to the vehicle.”

Hathaway v. Bazany, 507 F.3d 312, 321 (5th Cir. 2007)

(emphasis added). This makes sense; a car that has driven

12a

Appendix A

a sufficient distance away from an officer no longer poses a

threat of intentionally driving into the officer. These cases

are not applicable here, however. As McVae—who was an

unarmed fleeing suspect immediately before he picked

up and hurled a rock at Trooper Perez—demonstrated, a

threat does not necessarily cease when a violent suspect

attempts to flee. See Garner, 471 U.S. at 10–12.

That McVae’s weapon of choice was freely available

to him in nature also demonstrates why this case is not

analogous to Janice Poole. There, this court stated: “If

a jury views the disputed facts in favor of the plaintiff—

concluding that [the officer] shot Poole, without warning,

seeing that he was empty-handed and turning away from

the officer—then [the officer] violated Poole’s clearly

established right to be free from unreasonable seizure.”

Janice Poole, 13 F.4th at 426. In contrast, that McVae could

have picked up another rock at any time makes this case

more akin to “furtive gesture” cases “in which the officer

could reasonably fear that the suspect was about to pull

a gun from a waistband or other hidden location.” Id. at

425 (collecting cases).

By arguing that the threat had ceased because McVae

was running away unarmed in the moment Trooper Perez

shot him, Plaintiffs define the issue much too narrowly. See

Mendez, 823 F.3d at 333. Trooper Perez was not obligated

to give McVae a second chance.

***

13a

Appendix A

Given the events that preceded the shooting, a

reasonable officer in Trooper Perez’s shoes could have

believed that McVae posed a threat of serious harm.

Trooper Perez’s use of deadly force was therefore

reasonable and not excessive, and did not violate McVae’s

constitutional right to be free from unreasonable seizure.

Trooper Perez is entitled qualified immunity.

The district court’s judgment is AFFIRMED.

14a

B THE UNITED

APPENDIX B —Appendix

ORDER OF

STATES DISTRICT COURT FOR THE WESTERN

DISTRICT OF TEXAS, SAN ANTONIO DIVISION,

FILED SEPTEMBER 12, 2023

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS,

SAN ANTONIO DIVISION

NO. 5:21-CV-366-DAE

ETHEL “LAVERNE” MCVAE AND WILEY WEST,

BOTH INDIVIDUALLY, AND ON BEHALF OF THE

ESTATE OF MARCUS MCVAE, DECEASED,

Plaintiffs,

vs.

JESSE PEREZ,

Defendant.

Filed September 12, 2023

ORDER: (1) GRANTING MOTION FOR

SUMMARY JUDGMENT; AND (2) SUSTAINING

IN PART AND OVERRULING IN PART

OBJECTIONS TO EVIDENCE

Before the Court is: (1) Defendant Texas State Trooper

Jesse Perez’s (“Trooper Perez” or “Defendant”) Motion

for Summary Judgment (Dkt. # 33); and (2) Plaintiffs

Ethel “LaVerne” McVae, and Wiley West’s, Individually,

15a

Appendix B

and on behalf of the Estate of Marcus McVae, Deceased

(“Plaintiffs”) Objections to Defendant’s Summary

Judgment Evidence (Dkt. # 41). A hearing was held on

these matters on September 7, 2023.

After careful consideration of the memoranda in

support of and in opposition to the motion, as well as the

arguments of counsel at the hearing, the Court, for the

reasons that follow, GRANTS the motion for summary

judgment, and SUSTAINS IN PART and OVERRULES

IN PART the objections to summary judgment evidence.

BACKGROUND

This case concerns the death of Marcus McVae

(“Marcus”) at a traffic stop in Kendall County, Texas.

Marcus was the son of Plaintiffs Ethel McVae and Wiley

West, who died from injuries he sustained during an

officer-involved shooting on April 11, 2019. (Dkt. # 1 ¶ 9.)

Plaintiffs allege that Marcus was driving a rented vehicle

with a female passenger southbound on IH-10 in Kendall

County. (Id.) Trooper Perez observed Marcus following

another vehicle too closely and initiated a traffic stop.

(Ex. H at 166.) Trooper Perez’s body camera footage

indicates that Marcus could not produce a driver’s license;

Marcus complied when Trooper Perez asked him to step

out of the vehicle. (Perez Body Cam at 1:30–2:18.) Marcus

then falsely identified himself to Trooper Perez, and

falsely denied any prior arrest history. (Id. at 4:03–7:16.)

Trooper Perez next attempted to identify Marcus through

law enforcement databases, still receiving inconsistent

information from Marcus and his female passenger. (Id.

at 8:50–15:14.)

16a

Appendix B

According to Trooper Perez, he gained reasonable

suspicion that Marcus had failed to identify himself in

violation of Texas law; Trooper Perez then conducted

a consensual pat down of Marcus’s person, finding and

removing a vape pen. (Perez Body Cam at 15:14–15:54.)

Trooper Perez confronted Marcus with his suspicions,

giving Marcus another opportunity to identify himself.

(Id. at 16:08–16:59.) After failing to correctly identify

himself, Trooper Perez performed a more thorough,

consensual search of Marcus’s pockets and instructed

him to put his hands behind his back. (Id. at 17:00–17:27.)

Finding no weapons, Trooper Perez told Marcus that he

was going to be detained until he could be identified. (Id.)

When Trooper Perez attempted to handcuff Marcus,

Marcus broke away from Trooper Perez’s grasp, fleeing

on foot across the interstate. (Id. at 17:38–17:42.)

Trooper Perez then returned to his patrol vehicle,

following Marcus to a wooded area near the highway

where Marcus had crossed on foot. (Perez Body Cam

at 15:14–15:54.) Trooper Perez exited his vehicle and

pursued Marcus into the woods on foot. (Id. at 17:38–18:12.)

Through his body camera footage, Trooper Perez can

be heard yelling to Marcus “get on the ground, get on

the ground, I’m going to shoot you.” (Id. at 18:19–18:30.)

Shortly thereafter, Trooper Perez deployed his taser

gun, though it is unclear in the video footage whether

the prongs hit Marcus. (Id.) According to Trooper Perez,

the prongs did in fact hit Marcus but had no effect. (Dkt.

# 33 at 4.) Trooper Perez can then be seen in the video

catching up to Marcus after the latter had stumbled, and

can be heard repeatedly yelling at Marcus to get to the

17a

Appendix B

ground and put his hands behind his back. (Perez Body

Cam at 18:35–19:22.) According to Trooper Perez, Marcus

turned and swung his left arm at Trooper Perez, and the

two can be seen in a prolonged physical struggle on the

ground. (Id.; Dkt. # 33 at 4–5.)

Trooper Perez contends that at this point, he was

out of breath and unable to control Marcus with only

physical force. (Dkt. # 33 at 5.) It is unclear in the body

cam video, but Trooper Perez asserts that he then

deployed his baton and began striking Marcus in his

lower body to gain compliance. (Id.) During this time, the

video shows Marcus getting to his feet, turning to face

Trooper Perez and reaching toward the ground where a

number of large rocks can be seen. (Perez Body Cam at

18:35–19:22.) Again, it is unclear in the video, but Trooper

Perez contends that Marcus suddenly turned to the right,

and what appears to be a large rock can be seen flying

past Trooper Perez. (Id. at 19:23–19:30.) Immediately

after, four gunshots fired by Trooper Perez can be heard,

all occurring within 1.368 seconds of each other. (Id. at

19:10–19:31; Dkt. # 33-11 at 23.)

Subsequent to the gunshots, Marcus can be seen

falling down into a steep embankment and into a large

creek. (Perez Body Cam at 18:35–19:22.) According to

Trooper Perez, he saw blood and determined that Marcus

had been shot. (Dkt. # 33 at 5.) Marcus can be heard on

the video stating several times that he could not breathe,

but continuing to slowly move through the water away

from Trooper Perez. (Perez Body Cam at 19:23–20:22.)

Shortly thereafter, Marcus stops moving and is quiet.

18a

Appendix B

(Id.) Trooper Perez can be heard radioing in his location

and call for medical assistance. (Id.) Approximately four

minutes later, assistance arrives to the scene and Trooper

Perez climbs down into the creek and reaches Marcus,

thereafter determining that Marcus was unresponsive

and had no pulse. (Id. at 24:25–25:38.) Marcus was

later pronounced deceased. The Bexar County Medical

Examiner determined that Marcus was hit by three of

Trooper Perez’s gunshots, two of which were fatal. (Dkt.

# 33-6.)

On April 9, 2021, Plaintiffs filed suit in this case,

alleging an excessive force claim pursuant to 42 U.S.C.

§ 1983, arguing that Trooper Perez violated Marcus’s

Fourth Amendment rights under the United States

Constitution. (Dkt. # 1.) Plaintiffs also allege a wrongful

death claim and a survival action against Trooper Perez.

(Id.)

On April 26, 2023, Trooper Perez filed the instant

motion for summary judgment. (Dkt. # 33.) On June 2,

2023, Plaintiffs timely filed a response in opposition to that

motion. (Dkt. # 43.) The same day, June 2, 2023, Plaintiffs

filed objections to certain of Trooper Perez’s summary

judgment evidence. (Dkt. # 41.) On June 15, 2023, Trooper

Perez filed a response to the objections. (Dkt. # 45.)

LEGAL STANDARD

“Summary judgment is appropriate only if ‘there is

no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.’” Vann v. City

19a

Appendix B

of Southaven, 884 F.3d 307, 309 (5th Cir. 2018) (citations

omitted); see also Fed. R. Civ. P. 56(a). “A genuine dispute

of material fact exists when the ‘evidence is such that a

reasonable jury could return a verdict for the nonmoving

party.’” Bennett v. Hartford Ins. Co. of Midwest, 890 F.3d

597, 604 (5th Cir. 2018) (quoting Anderson v. Liberty

Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202

(1986)). “The moving party ‘bears the initial responsibility

of informing the district court of the basis for its motion,

and identifying those portions of [the record] which it

believes demonstrate the absence of a genuine issue of

material fact.’” Nola Spice Designs, L.L.C. v. Haydel

Enters., 783 F.3d 527, 536 (5th Cir. 2015) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L.

Ed. 2d 265 (1986)).

“Where the non-movant bears the burden of proof

at trial, ‘the movant may merely point to the absence of

evidence and thereby shift to the non-movant the burden

of demonstrating . . . that there is an issue of material fact

warranting trial.’” Kim v. Hospira, Inc., 709 F. App’x 287,

288 (5th Cir. 2018) (quoting Nola Spice Designs, 783 F.3d

at 536). While the movant must demonstrate the absence of

a genuine issue of material fact, it does not need to negate

the elements of the nonmovant’s case. Austin v. Kroger

Tex., L.P., 864 F.3d 326, 335 (5th Cir. 2017) (quoting Little

v. Liquid Air Corp., 37 F.3d 1069, 1076 n.16 (5th Cir. 1994)).

A fact is material if it “might affect the outcome of the

suit.” Thomas v. Tregre, 913 F.3d 458, 462 (5th Cir. 2019)

(citing Anderson, 477 U.S. at 248).

“When the moving party has met its Rule 56(c)

burden, the nonmoving party cannot survive a summary

20a

Appendix B

judgment motion by resting on the mere allegations of its

pleadings.” Jones v. Anderson, 721 F. App’x 333, 335 (5th

Cir. 2018) (quoting Duffie v. United States, 600 F.3d 362,

371 (5th Cir. 2010)). The nonmovant must identify specific

evidence in the record and articulate how that evidence

supports that party’s claim. Infante v. Law Office of

Joseph Onwuteaka, P.C., 735 F. App’x 839, 843 (5th Cir.

2018) (quoting Willis v. Cleco Corp., 749 F.3d 314, 317 (5th

Cir. 2014)). “This burden will not be satisfied by ‘some

metaphysical doubt as to the material facts, by conclusory

allegations, by unsubstantiated assertions, or by only a

scintilla of evidence.’” McCarty v. Hillstone Rest. Grp.,

Inc., 864 F.3d 354, 357 (5th Cir. 2017) (quoting Boudreaux

v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)). In

deciding a summary judgment motion, the court draws

all reasonable inferences in the light most favorable to the

nonmoving party. Wease v. Ocwen Loan Servicing, LLC,

915 F.3d 987, 992 (5th Cir. 2019).

Additionally, at the summary judgment stage,

evidence need not be authenticated or otherwise presented

in an admissible form. See Fed. R. Civ. P. 56(c); Lee v.

Offshore Logistical & Transp., LLC, 859 F.3d 353, 355

(5th Cir. 2017). However, “[u]nsubstantiated assertions,

improbable inferences, and unsupported speculation are

not sufficient to defeat a motion for summary judgment.”

United States v. Renda Marine, Inc., 667 F.3d 651, 655

(5th Cir. 2012) (quoting Brown v. City of Houston, 337

F.3d 539, 541 (5th Cir. 2003)).

21a

Appendix B

ANALYSIS

Trooper Perez has properly invoked the defense of

qualified immunity and now moves for summary judgment

on that basis. (Dkt. # 33.) “To state a claim under § 1983,

a plaintiff must first show a violation of the Constitution

or of federal law, and then show that the violation was

committed by someone acting under color of state law.”

Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252–53 (5th

Cir. 2005). “The doctrine of qualified immunity protects

government officials from liability for civil damages

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a person would

have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129

S. Ct. 808, 172 L. Ed. 2d 565 (2009) (internal quotation

marks omitted).

“Qualif ied immunity balances two impor tant

interests—the need to hold public officials accountable

when they exercise power irresponsibly and the need to

shield officials from harassment, distraction, and liability

when they perform their duties reasonably.” Id. Because

qualified immunity is immunity from suit rather than a

defense to liability, immunity questions should be resolved

at the earliest possible stage in litigation. Id. at 231–32.

“In determining whether an officer is entitled to

qualified immunity, courts engage in a two-step inquiry.”

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

2018). “The first asks whether the facts, ‘[t]aken in the

light most favorable to the party asserting the injury, . . .

show the officer’s conduct violated a [federal] right[.]’”

22a

Appendix B

Tolan v. Cotton, 572 U.S. 650, 655–56, 134 S. Ct. 1861, 188

L. Ed. 2d 895 (2014) (quoting Saucier v. Katz, 533 U.S.

194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001)). The

second “asks whether the right in question was ‘clearly

established’ at the time of the violation.” Id. at 656 (citing

Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153 L.

Ed. 2d 666 (2002)).

A. Violation of a Federal Right

Plaintiffs allege a § 1983 claim for the violation of the

Fourth Amendment right to be free from excessive force,

alleging that Trooper Perez used excessive force when he

shot Marcus three times in the back as he fled on foot and

was unarmed. (Dkt. # 1 at 8–12.) The Fourth Amendment

confers a right to be free from excessive force during an

arrest. Deville v. Marcantel, 567 F.3d 156, 169 (5th Cir.

2009) (per curiam). To establish a claim of excessive force

under the Fourth Amendment, a plaintiff must show “(1)

an injury (2) which resulted directly and only from the

use of force that was clearly excessive to the need and (3)

the force used was objectively unreasonable.” Cass v. City

of Abilene, 814 F.3d 721, 731 (5th Cir. 2016) (citation and

internal quotation marks omitted).

“Excessive force claims are necessarily fact-intensive;

whether the force used is ‘excessive’ or ‘unreasonable’

depends on ‘the facts and circumstances of each particular

case.’” Deville, 567 F.3d at 167 (quoting Graham v. Connor,

490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)).

Guiding this inquiry, the Supreme Court has identified

three sets of facts which deserve careful consideration

23a

Appendix B

in determining whether the force used is “excessive” or

“unreasonable”: (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

is actively resisting arrest or attempting to evade arrest

by flight. Graham, 490 U.S. at 396; see also Griggs v.

Brewer, 841 F.3d 308, 313–14 (5th Cir. 2016) (“A court must

measure the force used under the facts as a reasonable

person would perceive them, not necessarily against

the historical facts.”). Courts must evaluate the officer’s

action “from the perspective of a reasonable officer on

the scene, rather than with the 20/20 vision of hindsight.”

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

2012) (citing Graham, 490 U.S. at 396). “The calculus

of reasonableness must embody allowance for the fact

that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain,

and rapidly evolving—about the amount of force that

is necessary in a particular situation.” Id. (citation and

internal quotation marks omitted). However, “[t]he

question is one of objective reasonableness, not subjective

intent, and an officer’s conduct must be judged in light of

the circumstances confronting him, without the benefit

of hindsight.” Manis v. Lawson, 585 F.3d 839, 843 (5th

Cir. 2009) (citation and internal quotation marks omitted).

However, when a law enforcement officer uses deadly

force, the “objective reasonableness balancing test is

constrained. 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

24a

Appendix B

physical injury to the officer or others.” Flores v. City

of Palacios, 381 F.3d 391, 399 (5th Cir. 2004) (quoting

Tennessee v. Garner, 471 U.S. 1, 3, 105 S. Ct. 1694, 85 L.

Ed. 2d 1 (1985)) (internal quotation marks omitted). In

Manis v. Lawson, the Fifth Circuit explained that the

focus of the inquiry is “the act that led [the officer] to

discharge his weapon.” 585 F.3d 839, 845 (5th Cir. 2009).

“It is well-established that the excessive force inquiry

is confined to whether the officer [] was in danger at the

moment of the threat that resulted in the officer’s use of

deadly force.” Rockwell v. Brown, 664 F.3d 985, 992–93

(5th Cir. 2011) (quoting Bazan ex rel. Bazan v. Hidalgo

County, 246 F.3d 481, 493 (5th Cir. 2001)) (emphasis in

original).

Graham Factors

The right to make an arrest or investigatory stop

“necessarily carries with it the right to use some degree

of physical coercion or threat thereof to effect it.” Graham,

490 U.S. at 396. Determining whether force is “excessive”

or “unreasonable” requires considering the totality of the

circumstances, including the severity of the crime at issue,

whether the suspect poses an immediate threat to the

safety of the officers or others, and whether the suspect

is actively resisting arrest or trying to evade arrest by

flight. Id.

Severity of the Crime

The first Graham factor is the severity of the crime at

issue. Plaintiffs argue that the severity of the crime weighs

25a

Appendix B

against the reasonableness of force because the original

traffic stop was for Marcus’s following the vehicle in front

of him too closely—a minor traffic offense. (Dkt. # 43 at

13–14.) Additionally, although Marcus also committed

arrestable offenses—failing to correctly identify himself,

and evading arrest on foot, Plaintiffs argue that such

offenses are non-violent misdemeanors. (Id.) In support,

Plaintiffs submit a report by their expert which states

that although these offenses support the use of low to

intermediate levels of force, they weigh against the use

of deadly force. (Dkt. # 43-3 at 12–14.)

On the other hand, Trooper Perez asserts that he

believed Marcus had just committed a violent first-degree

felony when he threw the rock at him—aggravated assault

of a public servant—thus supporting his use of deadly

force only half of a second after the rock was thrown. (Dkt.

# 33 at 16; Dkt. # 33-2 at 13.) Trooper Perez contends

that the Court must consider that he “did not know, while

fearing for his life and viewing over his firing weapon,

that [Marcus] had spun around immediately after hurling

the rock, nor did [Trooper] Perez know that [Marcus]

had commenced running away, all within fractions of a

second.” (Dkt. # 33 at 15.) Trooper Perez contends that

at the moment he decided to employ deadly force he

felt threatened for his life given Marcus’s repeated and

escalating violence, and that there were plenty of rocks

available on the ground for Marcus to pick up and use

again. (Id.)

Upon careful consideration, the Court finds that

it would be reasonable for an officer in the same

26a

Appendix B

circumstance—Trooper Perez seeing Marcus facing him,

hurling a large rock in his direction, and actively resisting

arrest, to believe he was in danger and that Marcus had

just committed aggravated assault of a public servant.

Although it is true as Plaintiffs argue that—up until that

moment—Marcus’s suspected offenses included only nonviolent misdemeanors—the Fifth Circuit has emphasized

that the deadly force inquiry is confined to whether the

officer was in danger at the moment of the threat that

resulted in the officer’s use of force. See Rockwell, 664

F.3d at 990. The Fifth Circuit stated that “[r]egardless of

what transpired up until the shooting itself, the suspect’s

movements gave the officer reason to believe, at that

moment, that there was a threat of physical harm.” Id.

Given this guidance, the Court finds that the first Graham

factor weighs in favor of a finding that Trooper Perez’s

force was reasonable because he believed Marcus had

committed the crime of aggravated assault of a public

servant.

Immediate Safety Threat

Under the second Graham factor, a court considers

whether the suspect poses an immediate threat to the

safety of the officer or others. An officer must use a

“justifiable level of force in light of the continuing threat

of harm that a reasonable officer could perceive.” Salazar

v. Molina, 37 F.4th 278, 283 (5th Cir. 2022); see also Lytle

v. Bexar County, 560 F.3d 404, 413 (5th Cir. 2009) (“[A]

n exercise of force that is reasonable at one moment can

become unreasonable in the next if the justification for

the use of force has ceased.”).

27a

Appendix B

Trooper Perez argues that Marcus exhibited rapidly

escalating behavior and that at the time he made the

decision to use deadly force, Marcus had picked up a

rock and thrown it at him. (Dkt. # 33 at 14.) According

to Trooper Perez, “[w]ithin a split second, [he] knew that

McVae was hurling the rock at him and had become a

threat of serious harm,” and that as “he commenced firing

his weapon, McVae was still upright and still potentially

a threat.” (Id. at 14–15.)

Plaintiffs dispute Trooper Perez’s contention that

Marcus threw a rock at him. (Dkt. # 43 at 15.) Plaintiffs

argue that the body-cam footage of the incident does not

demonstrate that a rock was thrown at Trooper Perez,

only that their expert saw a “stone . . . skipping along

low to the ground as McVae was running away,” and that

Trooper Perez never yells out to Marcus to drop a rock

or any other item.1 (Id.; Dkt. # 43-3 at 6–7.) Additionally,

Plaintiffs contend that even if Marcus had thrown a rock in

Trooper Perez’s direction, any alleged threat had already

1. It is true that the precise moment at which Marcus armed

himself with the rock is not readily ascertainable from the body

camera footage. The footage does, however, appear to depict

Marcus crouching over a stone while turning to face Trooper

Perez. (Dkt. # 33-1 at 19:27–28.) A stone then tumbles past

Trooper Perez at a relatively high speed, rolling several feet before

coming to a rest. As stated, Plaintiffs do not dispute that the rock

as seen in the body camera video “can be seen skipping along low

to the ground as Marcus was running away.” (Dkt. # 43 at 15.) Yet,

the exact instant at which the rock was released remains unclear.

Regardless, it is exceedingly likely that Marcus armed himself

with the stone in question (albeit briefly) and hurled it in Trooper

Perez’s general direction.

28a

Appendix B

ceased by the time Trooper Perez went to grab his gun

out of the holster, especially in light of the evidence that

Marcus was already running away from Trooper Perez

with his back turned on him when he was shot. (Dkt.

# 43 at 16–17.) Plaintiffs also rely on Trooper Perez’s own

admission that the rock “passed Perez approximately half

of a second before the unholstering of the firearm.” (Id.;

Dkt. # 33 at 13.) Furthermore, Plaintiffs argue that while

a rock can be used in a manner that constitutes a deadly

weapon and justifies the use of deadly force, a rock is not

a per se deadly weapon like a gun is. (Dkt. # 43 at 16.) In

any case, Plaintiffs argue that since there are questions

of fact, these are issues for a jury to resolve.

As the Court discussed above in consideration of the

first Graham factor, a reasonable officer could believe that

Marcus posed an immediate safety threat when Marcus

threw a large rock at Trooper Perez. Trooper Perez has

articulated that he knew Marcus had armed himself with

a large rock and further that he believed Marcus had the

potential to become a threat of serious harm given the

escalating behavior he had just witnessed. “The relevant

law [] does not require the court to determine whether an

officer was in actual, imminent danger of serious injury,

but rather, whether the officer reasonably believed that

the suspect posed a threat of serious harm to the officer

or others.” Harris v. Serpas, 745 F.3d 767, 773 (5th Cir.

2014) (quoting Rockwell, 664 F.3d at 991). Moreover, “the

‘reasonableness’ of a particular use of force must be judged

from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” Id. (citing

Graham, 490 U.S. at 396). When looking at the “moment of

29a

Appendix B

the threat” that resulted in Trooper Perez’s use of deadly

force, it is clear from the body cam video that, immediately

preceding the shots, Marcus was facing Trooper Perez

and had not yet turned away; additionally, it appears

that Marcus had reached for a rock and stood up to face

Trooper Perez. While the video does not clearly show

Marcus throwing the rock at Trooper Perez, the video

does show a large rock pass by Trooper Perez, after which

shots were immediately fired. Accordingly, under these

circumstances, the Court finds that a reasonable officer

would fear for his immediate safety at the moment of the

fatal shooting. This second Graham factor also weighs in

favor of a finding of reasonableness.

Resisting or Evading Arrest

The third Graham factor requires a court to consider

whether the suspect is actively resisting arrest or

attempting to evade arrest by flight. Regarding this factor,

the Court finds that Trooper Perez’s body cam footage

demonstrates that Marcus both attempted to evade arrest

by flight, and that he later actively resisted arrest. Marcus

clearly broke free and ran from Trooper Perez when he

first tried to place handcuffs on him by the side of the road.

Marcus then crossed several lanes of traffic and ran into

a wooded area off the highway and attempted to escape,

ignoring verbal commands. When Marcus tripped and

fell, a struggle ensued, and Trooper Perez employed both

a baton and Taser gun which Marcus actively resisted. In

fact, Trooper Perez has presented evidence that because

of Marcus’s active resistance, he suffered scratches and

bruises, as well as a broken finger. (Dkt. # 33-10.) Thus,

30a

Appendix B

regarding the third Graham factor, the Court finds that

a reasonable officer in Trooper Perez’s situation could

have concluded that Marcus was actively resisting arrest.

Weighing the factors

Applying the Graham factors and drawing all factual

inferences in the non-moving parties’ favor, the Court

concludes that Trooper Perez acted reasonably and did

not violate Marcus’s right to be free from unreasonable

deadly force. The Court makes this determination

after considering the whole of the evidence before it.

Accordingly, because the Court has determined that

Trooper Perez’s use of deadly force was objectively

reasonable, and that Marcus’s Fourth Amendment right

to be free from the use of excessive force was not violated,

the Court need not consider the issue of whether that right

was clearly established. See Brown v. Callahan, 623 F.3d

249, 253 (5th Cir. 2010) (“A court may rely on either prong

of the defense in its analysis.”). Trooper Perez is entitled

to qualified immunity in this case.

B. Objections to Evidence

Plaintiffs have filed several objections to Trooper

Perez’s summary judgment evidence. (Dkt. # 41.)

Specifically, Plaintiffs object to evidence referencing: (1)

Marcus’s felony arrest warrants; (2) a razor obtained after

the shooting occurred; (3) Alprazolam pills discovered in

Marcus’s vehicle after the shooting; (4) Trooper Perez’s

broken finger; (5) statements made in Ranger Wright’s

report describing the crime of aggravated assault of a

31a

Appendix B

public servant; (6) the fact that Trooper Perez was no

billed by the grand jury in the death of Marcus; and

(7) newspaper articles describing an instance in which

a rock was used as a deadly weapon. Plaintiffs contend

the aforementioned evidence is irrelevant and does not

otherwise assist the trier of fact. The Court addresses

each argument in turn.

Felony Arrest Warrants, Razor, and Alprazolam

Pills

Plaintiffs first object to evidence referencing Marcus’s

felony warrants from being considered by this Court in

deciding summary judgment. (Dkt. # 41 at 1.) Plaintiffs

submit that evidence referencing felony arrest warrants

is irrelevant as these warrants do not relate to the use of

excessive deadly force in the events that transpired. (Id.

at 1–2.) Plaintiffs further argue that this evidence was

obtained after the shooting, and would therefore be of

no consequence in determining the present action. (Id.)

Plaintiffs lodge similar arguments in objecting to evidence

referencing a razor found on the roadway and Alprazolam

pills found in McVae’s vehicle from being considered by

this Court. (Id. at 2–3.)

Because this case concerns the defense of qualified

immunity, this Court will consider only the facts that were

known to Trooper Perez at the time of the shooting. See,

e.g., White v. Pauly, 580 U.S. 73, 137 S. Ct. 548, 550, 196 L.

Ed. 2d 463 (2017); Kingsley v. Hendrickson, 576 U.S. 389,

135 S. Ct. 2466, 2474, 192 L. Ed. 2d 416 (2015) (stressing

that “a court must judge the reasonableness of the force

32a

Appendix B

used from the perspective and with the knowledge of

the defendant officer”). “Facts an officer learns after

the incident ends—whether those facts would support

granting immunity or denying it—are not relevant.”

Cole v. Carson, 935 F.3d 444, 456 (5th Cir. 2019) (quoting

Hernandez v. Mesa, 582 U.S. 548, 554, 137 S. Ct. 2003,

198 L. Ed. 2d 625 (2017)).

Here, Trooper Perez was unable to identify Marcus

until after the shooting occurred; thus, Marcus’s felony

warrants were unknowable at the time the shooting took

place. (Dkt. # 33 at 3.) Additionally, the razor found on the

roadway was similarly obtained after the shooting, and

it is wholly unclear as to whether it belonged to Marcus.

Likewise, the Alprazolam pills were uncovered during a

search of Marcus’s vehicle subsequent to the incident. The

Court therefore SUSTAINS Plaintiffs’ objections to any

evidence referencing Marcus’s felony warrants, the razor

found on the roadway, and the Alprazolam pills. Any of

the foregoing evidence was of no moment in the Court’s

decision on the instant motion.

Broken Finger

Plaintiffs also object to evidence referencing

Defendant’s broken finger from being considered by this

Court in deciding summary judgment. (Dkt. # 41 at 3.)

Plaintiffs argue that any reference to the broken finger

is irrelevant to the cause of action and does not assist

the trier of fact. The Court disagrees with Plaintiffs’

contention. If Perez indeed broke his finger in the struggle

with Marcus, this injury would certainly factor into the

33a

Appendix B

excessive force calculus. Colston v. Barnhart, 130 F.3d 96,

99–100 (5th Cir. 1997). Sustaining such an injury would

undoubtedly affect one’s ability to subdue a resisting

suspect and would further impede that individual’s ability

to defend himself from a violent perpetrator. For this

reason, Plaintiff’s objection is without merit. Although

Trooper Perez’s broken finger was not a deciding factor

in the instant case, the Court will still give it the attention

it deserves and OVERRULE the objection.

Aggravated Assault of Public Servant

Plaintiffs also object to statements made in Ranger

Wright’s report referencing the alleged crime of

aggravated assault of a public servant from being

considered in deciding summary judgment, arguing that

Ranger Wright is not an expert in this case. (Dkt. # 41

at 4.) The Court disagrees with Plaintiffs’ contention.

The alleged crime is depicted on Trooper Perez’s body

camera video, wherein a rock can be seen tumbling past

Trooper Perez at a high rate of speed. The Texas Penal

Code defines a “deadly weapon” as “anything that in the

manner of its use or intended use is capable of causing

death or serious bodily injury.” Tex. Penal Code Ann.

§ 1.07(a)(17)(B). And, “serious bodily injury” is defined

as “bodily injury that creates a substantial risk of death

or that causes death, serious permanent disfigurement,

or protracted loss or impairment of the function of any

bodily member or organ.” Id. at § 1.07(a)(46). The deadly

weapon definition “is exceedingly broad in that a ‘deadly

weapon’ may be ‘anything,’ and there is no limitation as to

what type of thing may be considered a deadly weapon.”

34a

Appendix B

Prichard v. State, 533 S.W.3d 315, 320 (Tex. Crim. App.

2017) (quoting Tex. Penal Code Ann. § 1.07(a)(17)(B)).

In addition, to sustain a conviction for aggravated

assault of a public servant the evidence must demonstrate

that: (1) the person intentionally or knowingly threatened

another with imminent bodily injury; (2) the person used

or exhibited a deadly weapon during the commission of

the assault; and (3) the offense was committed against

a person the actor knew was a public servant while the

public servant was lawfully discharging an official duty.

Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2), (b)(2)(B).

For purposes of aggravated assault against a public

servant, Texas therefore recognizes that a rock may be

classified as a deadly weapon. Plaintiffs cite no authority

for their argument that a police officer must be qualified

as an expert for Rule 702 purposes to conclude in an

internal investigatory report that Marcus’s actions

constitute probable cause for a crime. Plaintiff’s objection

is accordingly OVERRULED.

No Bill by Grand Jury

Plaintiffs additionally object to evidence referencing

Trooper Perez being no billed by the grand jury in the

death of Marcus. (Dkt. # 41 at 4.) The Fifth Circuit has

concluded that under Texas law, “a grand jury’s no-bill

is a decision not to charge the accused with a particular

offense, not a judgment that no unlawful conduct

whatsoever occurred.” United States v. Fields, 932 F.3d

316, 322–23 (5th Cir. 2019) (discussing and applying prior,

35a

Appendix B

unpublished Fifth Circuit decision regarding the effect

of a grand jury’s decision to issue a no-bill). Given the

differing standards in obtaining a criminal indictment

by a grand jury versus obtaining a finding of liability in

a civil case, and further given that Defendant does not

oppose this objection, it follows that this evidence should

not be considered in deciding summary judgment. (Dkt.

# 45 at 7.) Plaintiffs’ objection is therefore SUSTAINED.

Newspaper Articles

Plaintiffs lastly object to evidence referencing

any newspaper articles from being considered by this

Court in deciding Defendant’s motion. (Dkt. # 41 at

5.) The newspaper articles in question are proffered to

demonstrate that a rock may be used as a deadly weapon

against police officers. (Dkt. # 45 at 8.) However, as

above, the Court has already determined that a rock

may constitute a deadly weapon. Accordingly, Plaintiff’s

objection is SUSTAINED.

CONCLUSION

Based on the foregoing, the Court will GRANT

Trooper Perez’s Motion for Summary Judgment (Dkt.

# 33) and SUSTAIN IN PART and OVERRULE IN

PART Plaintiffs’ Objections to Defendant’s Summary

Judgment Evidence (Dkt. # 41). Because Trooper Perez is

entitled to summary judgment on Plaintiffs’ § 1983 claims,

they are DISMISSED WITH PREJUDICE. The Clerk’s

Office is INSTRUCTED TO ENTER JUDGMENT and

CLOSE THE CASE.

36a

Appendix B

IT IS SO ORDERED.

DATED: San Antonio, Texas, September 12, 2023.

/s/ David Alan Ezra

David Alan Ezra

Senior United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.