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Fifth Circuit will not block §1983 claim in police shooting case
April 10, 2020The Fifth Circuit has dismissed an interlocutory appeal two sheriff’s deputies filed after a Texas federal court denied them summary judgment in an excessive force case. Agreeing with the lower court that “genuine issues of material fact” exist, the Fifth Circuit found it lacked jurisdiction to review the appeal, leaving in place the lower court’s ruling that the deputies are not entitled to qualified immunity. (Amador v. Vasquez, 2020 WL 1164357 (5th Cir. Mar. 11, 2020).)
In 2015, Gilbert Flores’s mother called 911 because Flores was attacking his wife. Bexar County, Texas, sheriff’s deputies Greg Vasquez and Robert Sanchez were dispatched and warned that Flores wanted to commit “suicide by cop.” The dispatcher also told Vasquez that Flores had a knife.
The deputies interacted with Flores for more than 10 minutes. A bystander filmed the last part of the encounter, capturing how events escalated several times. For example, Flores stabbed at Vasquez with a large hunting knife and later picked up and allegedly attempted to deploy a taser that one of the deputies had dropped. At another point, Flores walked toward the deputies’ unlocked SUV, which “had an AR-15 inside and keys in the ignition,” causing Vasquez to point his gun at Flores.
As captured on the recording, however, the encounter ended with Flores standing “motionless” in a driveway approximately 30 feet from Vasquez and Sanchez with his “arms up in the air [and] his hands above his head and the knife in his palm.” While Flores stood there, Sanchez and Vasquez looked at one another and then shot Flores, who died from his injuries.
Flores’s estate sued the county and the officers under 42 U.S.C. §1983, alleging Vasquez and Sanchez violated Flores’s Fourth Amendment right to be free from excessive force. The district court granted the county summary judgment based on qualified immunity but denied the officers’ motion because, construing the facts in the plaintiff’s favor, the “deputies’ use of deadly force was unreasonable.” The deputies filed an interlocutory appeal.
Under Michalik v. Herman (422 F.3d 252 (5th Cir. 2005)), the Fifth Circuit lacks jurisdiction to hear these appeals when the lower court denies qualified immunity because genuine issues of material fact remain. As a result, the court’s review was “limited to determining whether the factual disputes that the district court identified” were material to resolving whether qualified immunity applies.
Police officers are entitled to qualified immunity unless their actions violate a right that was “‘clearly established’ at the time of the violation.” An officer’s use of deadly force violates a victim’s Fourth Amendment rights unless the officer has probable cause to believe that the victim poses a “threat of serious physical harm” to the officer or others, such that an objectively reasonable officer on the scene also would have believed the use of force was appropriate. Citing Manis v. Lawson (585 F.3d 839 (5th Cir. 2009)), the Fifth Circuit noted that this analysis places the “focus of the inquiry on ‘the act that led [the officer] to discharge his weapon.’”
The district court identified three factual disputes it said were material to resolving whether the deputies here had the necessary probable cause to justify the use of deadly force—whether Flores saw the weapon or the SUV’s keys in the vehicle as he approached, whether he tried to deploy the taser against the deputies, and what occurred in the moments before the deputies shot Flores. The defendants argued that they were in imminent fear of physical harm at the time of the shooting, but the district court found that an objective police officer would have decided that Flores had surrendered and was no longer resisting—making the use of deadly force unreasonable. The Fifth Circuit agreed, finding that the factual disputes the district court had identified were “material . . . as to whether the officers violated Flores’s Fourth Amendment rights.”
The Fifth Circuit then examined whether the deputies violated clearly established law by shooting Flores under these circumstances. The court quoted Kisela v. Hughes (138 S. Ct. 1148 (2018)), in which the U.S. Supreme Court said that meeting this standard does “not require a case directly on point” but that “existing precedent must have placed the statutory or constitutional question beyond debate.”
The Fifth Circuit concluded that a reasonable officer would have understood and been on notice that “using deadly force on a man holding a knife, but standing nearly thirty feet from the deputies, motionless, and with his hands in the air for several seconds, would violate the Fourth Amendment.” The court rejected the defendants’ argument that they were justified in shooting Flores because he had posed a serious physical threat earlier in their encounter. It concluded that Flores’s earlier conduct could not be used to justify force used later: “To say otherwise, would grant officers an ‘ongoing license to kill an otherwise unthreatening suspect’ who was threatening earlier.” The defendants have filed for en banc reconsideration.
Dallas attorney Matthew Kita, who argued the case before the Fifth Circuit, described a challenge of litigating excessive force cases. “The qualified immunity doctrine, created by judges, responds to concerns that we shouldn’t second-guess cops forced to make split-second decisions in the field. But over time, the ‘clearly established law’ prong of this analysis has been used as an easy way out, with some judges ruling that—although the conduct at issue was unconstitutional—the defendant still is entitled to qualified immunity because no previous case is directly on point with the same fact pattern. The result has been that there’s often little incentive to bring these lawsuits because they’re so difficult to win. But even though these cases involve roadblocks at every stage and defendants with no incentive to settle, we need attorneys prepared to litigate them so that the qualified immunity doctrine continues to be challenged when appropriate.”