Case: 23-50703 Document: 74-1 Page: 1 Date Filed: 10/30/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 30, 2024
No. 23-50703 Lyle W. Cayce
____________ Clerk
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.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:21-CV-366
______________________________
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 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
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No. 23-50703
McVae’s Fourth Amendment right to be free from unreasonable seizure.
The district court granted summary judgment for the officer. We AFFIRM.
I.
A.
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 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.
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1
Trooper Perez’s body camera recorded the events that follow.
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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 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
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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.
B.
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 footage, the district court granted his motion for summary judgment.
Plaintiffs appeal that decision.
II.
A.
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
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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
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We review summary judgment evidence in the light most favorable to
the nonmoving party. Carnaby v. City 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
(2007)).
B.
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 the rock at Trooper
_____________________
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.
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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.
A.
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 (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 (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 (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.
B.
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.
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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 (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 (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).
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
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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.
“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 first-degree
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
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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 Tex. Penal 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.”
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already warned McVae 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 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.
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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.
…
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.
10
