inline"> United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED November 17, 2023 No. 22-40781 Lyle W. Cayce ____________ Clerk Santos Argueta; Blanca Granado; Dora Argueta; Jelldy Argueta; The Estate of Luis Fernando Argueta, Plaintiffs—Appellees, versus Derrick S. Jaradi, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 3:20-CV-367 ______________________________ Before Clement, Haynes, and Oldham, Circuit Judges. Edith Brown Clement, Circuit Judge: On June 25, 2018, Galveston Police Officer Derrick Jaradi fatally shot Luis Argueta, who was armed with a handgun equipped with a high-capacity ammunition extension. Representatives of Argueta’s estate1 sued, alleging that Jaradi used excessive force in violation of Argueta’s Fourth Amendment _____________________ 1 The plaintiffs include Argueta’s parents—Santos and Blanca Granado—and his sisters—Dora and Jelldy Argueta. For ease of reference, we refer to the plaintiffs collectively as “Argueta.” No. 22-40781 rights. The district court concluded that four genuine issues of material fact preclude Jaradi’s motion for summary judgment on qualified-immunity grounds. For the reasons explained below, we REVERSE and RENDER judgment in favor of Jaradi. I. On June 25, 2018, Argueta and his girlfriend, Mary Ann Luna, drove to a convenience store in Galveston around 3 a.m. According to Luna, Argueta intended to buy a cigar. While Argueta was inside the store, Jaradi and his partner, Officer Matthew Larson, drove into the store’s parking lot. Luna indicated that the police officers were “looking at [Argueta] like . . . something was wrong,” and, when Argueta returned to the car, Luna told Argueta that the officers were “looking at [him] crazy.” While Luna denies that Argueta talked to anyone in or outside the store besides a store employee, the officers indicate that Argueta spoke to a woman outside the store whom Jaradi suspected of being a prostitute. Argueta and Luna drove off shortly after the officers pulled into the parking lot. While Jaradi testified that Argueta sped off at a “really high rate of speed,” Luna said that Argueta’s car left “super slow[ly].” The officers initially lost sight of Argueta’s car after it left the parking lot, but later, while patrolling the area, they saw the vehicle drive through an alleyway. The officers contend that Argueta’s headlights and taillights were off and that Argueta rolled through several stop signs. Around this time, Jaradi turned on the patrol car’s dashboard camera (“dashcam”). By the time the dashcam video footage begins, Argueta’s lights are turned on while the car was in motion. The video also indicates that the vehicle stopped, at least momentarily, at all stop signs, and moved at a moderate speed. The patrol car followed Argueta for a few blocks before the officers turned on the 2 No. 22-40781 emergency lights. Argueta continued driving for roughly two blocks and then pulled over. The video shows that Argueta quickly exited the car, turned his left side towards the officers, and ran toward a vacant lot across the street. Argueta’s right arm and hand were not visible in the dashcam footage because Argueta kept his right arm pressed against his side and ran in a direction where only his left side was visible to the officers; his right arm and hand were also not clearly visible in the officers’ body-camera (“bodycam”) footage as they were obscured, blurry, or—at times—apparently pressed down on the right side of Argueta’s body. Argueta’s apparent concealment of his right hand from Officer Jaradi’s view—by pressing his right hand near his right hip with the core of his body between him and Jaradi—made Jaradi concerned that he could not, if necessary, react with his handgun in time to stop an attack. Approximately five seconds after Argueta exited his vehicle, Jaradi fired two shots at Argueta, both of which struck Argueta and caused Argueta to fall to the ground. There is no audio accompanying the bodycam footage until Jaradi shoots. Seconds later, the officers set their flashlights on Argueta, who was laying on his back in the empty lot. The bodycam footage shows a black pistol in Argueta’s right hand. The officers direct Argueta to drop the weapon and roll over onto his stomach. A few seconds later, Argueta complied, revealing the gunshot wounds on his back. Shortly after the shooting, the officers called for Emergency Medical Services and backup. Two minutes later, additional officers arrived on the scene. They handcuffed Argueta and started administering medical aid until EMS arrived and transported Argueta to the hospital. Argueta was pronounced dead at 3:42 a.m. 3 No. 22-40781 In June 2020, Argueta’s parents and siblings, on behalf of themselves and Argueta’s estate, filed a wrongful-death lawsuit against Jaradi.2 At the close of discovery, Jaradi moved for summary judgment, arguing that Argueta could not overcome qualified immunity. The district court denied his motion, and Jaradi filed an interlocutory appeal. II. Although an order denying summary judgment is normally not immediately appealable, a pretrial order denying an officer’s qualified-immunity defense is subject to immediate appeal. Plumhoff v. Rickard, 572 U.S. 765

, 771–72 (2014). We review such appeals de novo. Walsh v. Hodge,

 (5th Cir. 2020). In so doing, our jurisdiction is generally limited
to examining the materiality (i.e., legal significance) of factual disputes the
district court determined were genuine, not their genuineness (i.e.,
existence). Joseph v. Bartlett,

981 F.3d 319, 331

 (5th Cir. 2020). But an
exception exists: we are permitted to review genuineness where, as here,
video evidence is available. Poole v. City of Shreveport,

13 F.4th 420, 424

 (5th
Cir. 2021) (citing Scott v. Harris,

550 U.S. 372

, 380–81 (2007) and Curran v.
Aleshire,

800 F.3d 656

, 663–64 (5th Cir. 2015)).
                                          III.
        “The doctrine of qualified immunity protects government officials
from civil damages liability when their actions could reasonably have been
believed to be legal.” Morgan v. Swanson,

659 F.3d 359, 370

 (5th Cir.
2011) (en banc). The qualified-immunity inquiry has two parts. First, we ask
whether the facts, “taken in the light most favorable to the party asserting

        _____________________
        2
          Argueta also sued the City of Galveston, under a municipal-liability theory, but
the district court granted summary judgment in favor of the city. That part of the summary
judgment order is not subject to this appeal.




                                            4
                                   No. 22-40781


the injury, . . . show the officer’s conduct violated a federal right.” Tolan v.
Cotton,

572 U.S. 650

, 655–56 (2014) (alterations adopted) (quotation marks
and citation omitted). And second, we ask “whether the right in question was
‘clearly established’ at the time of the alleged violation, such that the officer
was on notice of the unlawfulness of his or her conduct.” Cole v. Carson,

935 F.3d 444, 451

 (5th Cir. 2019) (en banc). Once an officer pleads qualified
immunity, it is the plaintiff’s burden to establish that the officer violated the
plaintiff’s clearly established federal rights. Estate of Davis v. City of North
Richland Hills,

406 F.3d 375, 380

 (5th Cir. 2005).
       “This is a demanding standard.” Vincent v. City of Sulphur,

805 F.3d 543, 547

 (5th Cir. 2015), cert. denied,

136 S. Ct. 1517

 (2016). Because qualified
immunity protects “all but the plainly incompetent or those who knowingly
violate the law,” Malley v. Briggs,

475 U.S. 335, 341

 (1986), we do not deny
its protection unless existing precedent places the constitutional question
“beyond debate,” Swanson,

659 F.3d at 371

 (quoting Ashcroft v. al–Kidd,

563 U.S. 731

, 741 (2011)).
       An officer’s use of deadly force is not unreasonable when the officer
has reason to believe that the suspect poses a threat of serious harm to the
officer or to others. Mace v. City of Palestine,

333 F.3d 621, 624

 (5th Cir.
2003). The reasonableness of the use of deadly force “must be judged from
the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Graham v. Connor,

490 U.S. 386, 396

 (1989). In
so doing, the “court must ‘ask whether the law so clearly and unambiguously
prohibited [the police officer’s] conduct that every reasonable [police officer]
would understand that what he is doing violates [the law].’” Vincent,

805 F.3d at 547

 (emphasis in original) (citation omitted). “If reasonable public
officials could differ on the lawfulness of the defendant’s actions, the
defendant is entitled to qualified immunity.” Pfannstiel v. City of Marion,

918 F.2d 1178, 1183

 (5th Cir. 1990).



                                        5
                                  No. 22-40781


                                        IV.
       Argueta pleads excessive force, a cause of action derived from the
Fourth Amendment. See Graham,

490 U.S. at 388

. An excessive-force claim
requires (1) an injury, (2) resulting directly and only from excessive force, (3)
that was objectively unreasonable. Westfall v. Luna,

903 F.3d 534, 547

 (5th
Cir. 2018) (citation omitted). Here, only the last element is at issue.
Determining whether the force used was objectively unreasonable “requires
careful attention to the facts and circumstances of [the] particular case,”
including “(1) the severity of the crime at issue, (2) whether the suspect
pose[d] 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.” Trammell    v.   Fruge,

868 F.3d 332, 340

   (5th   Cir.
2017) (quoting Graham,

490 U.S. at 396

) (internal quotation marks omitted).
       The district court identified the following as genuine disputes of
material fact that preclude summary judgment on qualified immunity:
       (1) whether Jaradi could see that Argueta held a weapon;
       (2) whether Argueta’s flight posed any risk to the officers or
       the public;
       (3) whether Argueta raised the gun or otherwise made a
       threatening motion towards the officers; and
       (4) whether either officer warned Argueta before firing.

       As a preliminary matter, we are not persuaded that the second “fact
dispute” is a question of fact at all. Rather, as explained below, it is a legal
determination that turns on other factual issues. Because our jurisdiction is
limited to examining the materiality (and, in cases of video evidence,
genuineness) of fact disputes, we set aside question two and review the
remaining three fact disputes for genuineness and materiality.




                                         6
                                       No. 22-40781


                                            A.
        Because video evidence is available here, we begin by reviewing fact
disputes one, three, and four—listed above—for genuineness. Scott,

550 U.S. at 380

; Poole,

13 F.4th at 424

.3 We conclude that video evidence confirms the
genuineness of fact disputes one and three and does not bear on fact dispute
four.
        In the police footage, the street is very dark, and Argueta’s flight from
the vehicle towards the vacant lot is illuminated only minimally by streetlight
and very briefly by police flashlights. Argueta flees the vehicle in such a way
that the right side of his body, including his right arm and hand, is completely
hidden in the dashcam video and either obscured or not in focus in the
bodycam footage. The bodycam video is not of the highest resolution and is
filmed from the vantage of Jaradi’s chest rather than eyes, which creates a
partially obscured view of Argueta after Jaradi raises his gun. The result of
the foregoing is that, from the moment Argueta exits the vehicle until the
moment he is laying on the ground, not one frame of video evidence presents
a clear glimpse of the firearm. Like the district court, we find that a reasonable
jury could conclude that Argueta’s weapon was not visible to Jaradi before or
at the moment he used deadly force.

        _____________________
        3
          Scott could be read to hold that we are empowered to review the genuineness of
fact disputes only to determine whether video evidence “blatantly contradicts” one party’s
version of events. See Scott,

550 U.S. at 380

. However, we have interpreted Scott more
broadly, reading it as recognizing a general exception to the prohibition on interlocutory
review of genuineness in cases involving video evidence. See Poole,

13 F.4th at 424

; Curran,
800 F.3d at 663–64. That wrinkle does not impact the outcome of this appeal, however,
because we conclude that the video evidence does not “blatantly contradict” either party’s
version of events for the fact disputes on which it bears, and in fact serves only to confirm
the existence of such fact disputes. Thus, the result is the same whether we are agreeing
with the genuineness of the fact disputes identified below after our own independent review
or simply deferring to the district court’s determinations of genuineness.




                                             7
                                 No. 22-40781


       The same goes for “whether Argueta raised the gun or otherwise
made a threatening motion towards the officers.” The only action visible in
the police footage is Argueta slowly driving away from the police, exiting the
vehicle, and fleeing toward an empty lot. And, while the footage does show
that Argueta keeps his right arm pressed against the right side of his body
during flight—which, Jaradi argues, suggests Argueta was “trying to conceal
his right arm and hand from the officers”—the video does not clearly reflect
that Argueta showed the gun during his flight.
       The second part of fact dispute three asks whether Argueta “made a
threatening motion towards the officers.” To the extent the district court is
asking whether Argueta made any motion in the direction of the officers, the
video evidence appears to confirm the existence of a fact dispute; the footage
shows no such motion, so a jury would be left to determine what happened in
the moments the footage is dark, blurry, or physically obscured. To the extent
the court is asking whether the motions that Argueta made were threatening,
however, that is a legal question and not a fact dispute. As we explain further
below, an assessment of whether a suspect’s physical actions amount to
threatening behavior bearing on an excessive-force claim is a question of law.
       Finally, the video evidence does not bear on “whether either officer
warned Argueta before firing” because the dashcam video does not contain
audio and neither officer’s bodycam video contains any audio until the
moment Jaradi fires the shots (in the Larson video) or until after the shots are
fired (in the Jaradi video). Because the video evidence does not bear on the
genuineness of the warning dispute, we defer to the district court’s
assessment, consistent with the scope of our review.




                                       8
                                   No. 22-

40781 B. 1

.
       Next, we examine the materiality of the above-listed fact disputes,
beginning with whether Jaradi could see that Argueta held a weapon.
       Because a genuine dispute of fact exists as to this issue, we must take
the facts in the light most favorable to Argueta and assume that Jaradi could
not see that Argueta was armed before Jaradi used deadly force. Accordingly,
each of Jaradi’s cases in which a gun (or apparent gun) was visible to police
prior to their use of deadly force is facially inapposite. See, e.g., Wilson v. City
of Bastrop,

26 F.4th 709, 711

 (5th Cir. 2022); Garza v. Briones,

943 F.3d 740, 743

 (5th Cir. 2019); Ramirez v. Knoulton,

542 F.3d 124

, 126–27 (5th Cir.
2008). Instead, we must look to cases where police officers confronted an
individual whose actions suggested that he or she possessed, and might in
that moment access, a firearm.
       In Salazar-Limon v. City of Houston, a police officer shot Salazar in his
back after a traffic stop when the officer observed that Salazar did not comply
with police commands and suddenly reached toward his waistband, which
was covered by an untucked shirt.

826 F.3d 272, 275

 (5th Cir. 2016).
Although Salazar was later found to be unarmed, the officer—at the moment
he fired—perceived Salazar’s combination of movements to be consistent
with Salazar retrieving a weapon from his waistband.

Id.

 We held that the
officer’s actions were objectively reasonable, citing the following
circumstances: “Salazar’s resistance, intoxication, his disregard for [the
officer]’s orders, the threat he and the other three men in his truck posed
while unrestrained, and Salazar’s actions leading up to the shooting
(including suddenly reaching towards his waistband).”

Id. at 279

 (emphasis in
original).




                                         9
                                 No. 22-40781


       Similarly, in Batyukova v. Doege, Batyukova refused to comply with the
officer’s instructions, became verbally aggressive, and, instead of heeding the
officer’s admonition to “get down” and show her hands, reached her hand
toward the waistband of her pants and behind her back.

994 F.3d 717

, 722–23
(5th Cir. 2021). The deputy, believing that Batyukova was reaching for a
weapon to kill him, shot her.

Id. at 723

. We affirmed the grant of summary
judgment in the officer’s favor, emphasizing that Batyukova, though later
determined to be unarmed, “repeatedly ignored [the officer’s] commands,
walked towards him, was actually facing him, and then made a movement
towards her waistband as if she was reaching for a weapon to use against
Deputy Doege.”

Id. at 729

.
       Further illustrative of the “furtive gesture” line of cases: in Manis v.
Lawson, Manis ignored police commands to show his hands and instead
“reached under the seat of his vehicle and then moved as if he had obtained
the object he sought.”

585 F.3d 839, 844

 (5th Cir. 2009). We found that the
officer’s use of deadly force did not violate Manis’s Fourth Amendment
rights, reasoning that such force is reasonable when a suspect “moves out of
the officer’s line of sight such that the officer could reasonably believe the
suspect was reaching for a weapon.”

Id.

 (collecting cases); accord Ontiveros v.
City of Rosenberg,

564 F.3d 379, 385

 (5th Cir. 2009); see also Young v. City of
Killeen,

775 F.2d 1349, 1353

 (5th Cir. 1985); Reese v. Anderson,

926 F.2d 494

,
500–01 (5th Cir. 1991) (both involving a refusal to comply with police
commands coupled with reaching under a car seat during a traffic stop).
       On the other hand, consider our recent decision in Poole. In that case,
Poole sued a police officer, Briceno, for excessive force after Briceno shot
Poole four times in the back during a traffic stop. Poole,

13 F.4th at 422

. The
facts relevant here are as follows: Briceno responded to a police dispatch
describing a silver truck that had driven down a street several times; Briceno
located a silver truck at a stop sign, driven by Poole; Briceno pulled up behind



                                      10
                                 No. 22-40781


and engaged his lights and sirens; Poole evaded Briceno for fifteen minutes
in a low-speed car chase; Poole eventually stopped the vehicle, exited, and
reached into the bed of his truck; Briceno exited his police car, drew his
weapon, and allegedly shouted “Show me your hands”; Briceno alleged that
he could not see Poole’s hands but believed that Poole intended to harm him
or the other officers that had arrived on the scene; dashcam footage showed
that, as Poole raised his hands from the truck bed, they were empty; Briceno
got into a shooting stance and shouted something to Poole that is
indecipherable on dashcam audio; as Poole opened the car door and lowered
himself into the driver’s seat, Briceno fired six times, striking Poole four
times.

Id.

       The district court held that genuine issues of material fact preclude
summary judgment on Briceno’s qualified-immunity claim, namely (1)
whether Briceno warned Poole before firing, (2) whether Poole was turned
away from Briceno during the shooting, and (3) whether Briceno could see
that Poole’s hands were empty.

Id. at 424

. On interlocutory appeal, we held,
inter alia, that “whether it was apparent that Poole’s hands were empty”
constituted a genuine dispute of material fact precluding summary judgment.

Id. at 425

.
       Here, the question we must decide is whether Argueta’s case is more
like the Salazar-Limon line of furtive-gesture cases or Poole. On balance, we
think this case is more like the former than the latter. In Poole, the suspect
was visibly unarmed, a fact made apparent from video evidence showing his
empty hands from the approximate vantage of the defendant officer.

13 F.4th at 424

. Here, Argueta was armed with a high-capacity semiautomatic
weapon, which he kept out of view as he fled, and needed only a slight turn
to begin firing on the officers from close range. Rather than swing both of his
arms, as one naturally does when running, Argueta swung only his left arm,
keeping his right arm purposefully and unnaturally pressed along his right



                                      11
                                  No. 22-40781


side and out of sight as he ran away. Although Argueta did not make any
sudden movement for his gun, as in Manis, Argueta’s clutching his right arm
to his side as he fled at top speed was tantamount to “mov[ing his arm] out
of the officer’s line of sight such that the officer could reasonably believe the
suspect was reaching for a weapon.”

585 F.3d at 844

. Jaradi testified that he
concluded the same and that he was concerned that he could not, if
necessary, react with his handgun in time to stop an attack. We have
repeatedly cautioned against “second-guessing a police officer’s assessment,
made on the scene, of the danger presented by a particular situation.” Wilson,

26 F.4th at 713

 (citing Valderas v. City of Lubbock,

937 F.3d 384

, 389 (5th Cir.
2019) (per curiam)).
       In Poole, we distinguished the facts at hand from the furtive-gesture
cases because, we concluded, a jury could find that Poole was “visibly
unarmed” at the moment of the shooting. Thus, Poole was unlike furtive-gesture cases in “in which the officer could reasonably fear that the suspect
was about to pull a gun from a waistband or other hidden location.”

13 F.4th at 425

. Here, no reasonable jury could conclude that Argueta was visibly
unarmed—because he was armed. At most, a jury could conclude that
Argueta was apparently unarmed. Considering the furtive-gesture case law,
we conclude that whether Jaradi could see Argueta’s weapon is immaterial
because Argueta clutched his right arm to his side as he fled, which created
“reasonabl[e] fear that [Argueta] was about to pull a gun from a … hidden
location.”

Id.

       We therefore conclude that, even taking the facts in the light most
favorable to Argueta—that the gun was not visible to Jaradi when Jaradi
fired—this fact question is immaterial because Argueta’s clutching his right
arm to his side as he fled police confrontation was a furtive gesture akin to
reaching for a waistband. And again: it is Argueta’s burden to establish that
Jaradi is not entitled to qualified immunity, a protection that we honor unless



                                       12
                                  No. 22-40781


existing precedent places the constitutional question “beyond debate.”
Swanson,

659 F.3d at 371

.
                                       2.
         As stated above, we are not persuaded that the second “fact dispute”
identified by the district court—whether Argueta’s flight posed any risk to
the officers or the public—is a question of fact at all. As the district court
appears itself to acknowledge in its citations to Wilson and Blevins, whether
the suspect’s flight posed a threat to the officers or onlookers is a question of
law left to the court. Indeed, we have repeatedly recognized that the risk an
individual poses to officers or others is part of our objective-reasonableness
analysis, a legal inquiry: “The question for this court is whether [the police
officer] could reasonably believe that [the fleeing suspect] posed a serious
threat of harm.” Harmon v. City of Arlington,

16 F.4th 1159, 1163

 (5th Cir.
2021); see also Roque v. Harvel,

993 F.3d 325, 333

 (5th Cir. 2021) (explaining
that determining whether an officer acted in an objectively reasonable way is
a legal question for the court which asks whether “the suspect poses a threat
of serious physical harm, either to the officer or to others”); Romero v. City
of Grapevine,

888 F.3d 170

, 176–77 (5th Cir. 2018) (same) (collecting cases).
Accordingly, we decline to address the genuineness or materiality of this
“fact dispute” because it is actually a question of law.
         Instead, we review as part of our objective-reasonableness analysis
whether Argueta posed a threat to the officers or others. Our answer is
straightforward: because we conclude that Argueta’s concealing his right arm
as he fled the police amounted to a furtive gesture akin to reaching for a
waistband during a police confrontation, Jaradi’s conclusion that Argueta
posed an immediate danger was not unreasonable. See, e.g., Salazar-Limon,

826 F.3d at 279

; Fraire v. City of Arlington,

957 F.2d 1268, 1277

 (5th Cir.
1992).




                                       13
                                  No. 22-40781


                                       3.
       Next, we consider the materiality of fact dispute three: “whether
Argueta raised the gun or otherwise made a threatening motion towards the
officers.” Our analysis of the first fact dispute obviates this one. Even if
Argueta never touched his gun and his gun remained completely concealed
from the moment he exited the vehicle until after he was shot, that fact is
immaterial: Argueta did not need to raise (or even show) his gun or make a
threatening motion towards the officers because, by suspiciously concealing
his right arm as he fled in a way that objectively suggested he was armed and
dangerous, he engaged in a furtive gesture justifying deadly force. See, e.g.,
Salazar,

826 F.3d at 279

; Batyukova,

994 F.3d at 729

.
                                       4.
       Finally, we consider the materiality of fact dispute four: “whether
either officer warned Argueta before firing.” Taking the facts in the light
most favorable to Argueta, Argueta received no warning before Jaradi shot
him.
       In Tennessee v. Garner, the Supreme Court held:
       [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.

471 U.S. 1

, 11–12 (1985). And we recently held in Poole that, “[e]ven when a
suspect is armed, a warning must be given, when feasible, before the use of
deadly force.”

13 F.4th at 425

; see also Cole,

935 F.3d at 453

 (but note that the
record reflected Cole was armed but not dangerous).
       Notwithstanding this general rule, neither party has presented, and
we have not located, clearly established law holding that a furtive gesture




                                       14
                                  No. 22-40781


signaling an immediate threat to officers followed by deadly force without
warning constitutes a violation of the suspect’s federal rights. To the
contrary, we held in Batyukova that the suspect’s ignoring police commands
and reaching behind her back to her waistband justified deadly force
notwithstanding the officer’s lack of warning.

994 F.3d at 729

. For this
reason, we conclude that whether Jaradi issued a warning prior to firing is
immaterial here.
                                       IV.
          In sum, we hold that Argueta has failed to establish “beyond debate”
that Jaradi violated a clearly established federal right.
          Accordingly, we REVERSE and RENDER judgment in favor of
Jaradi.




                                        15
                                  No. 22-40781


Haynes, Circuit Judge, dissenting:
       I would affirm the district court’s order denying summary judgment
to Officer Jaradi. Although I agree with the majority opinion’s conclusions
that there are genuine disputes of fact, I disagree with respect to the
purported immateriality of these genuine factual disputes.
       The majority opinion’s reliance on the “furtive gesture” line of cases
does not support its conclusion that the genuine factual disputes are
immaterial here because each of those cases included “other factors that led
the officer to suspect that the victim would resort to violence.” Allen v. Hays,

65 F.4th 736

, 744 (5th Cir. 2023) (“[A]n officer cannot escape liability any
time he claims he saw a gun. The question is whether the officer’s belief that
he saw a gun was sufficiently reasonable to justify the use of deadly force in
light of all the surrounding circumstances.”). For instance, in Batyukova v.
Doege, where we affirmed the district court’s grant of summary judgment on
the “clearly established” prong, the suspect refused to comply with the
officers’ demands, gave them the middle finger, and yelled “f**k you,”
“f**k America,” and, allegedly, “you’re going to f**king die tonight.”

994 F.3d 717

, 722–23 (5th Cir. 2021). In Salazar-Limon v. City of Houston, we
concluded there was no violation of the plaintiff’s Fourth Amendment rights
in light of the totality of the circumstances, “which include[d] [plaintiff’s]
resistance, intoxication, his disregard for [the officer’s] orders, the threat he
and the other three men in his truck posed while unrestrained, and
[plaintiff’s] actions leading up to the shooting (including suddenly reaching
towards his waistband.”

826 F.3d 272, 279

 (5th Cir. 2016), as revised (June
16, 2016). Finally, in Manis v. Lawson, the suspect ignored the officers’
orders and “began shouting obscenities and flailing his arms aggressively at
them.”

585 F.3d 839, 843

 (5th Cir. 2009).




                                       16
                                  No. 22-40781


        By contrast, these “other factors” are almost entirely absent in this
case.   Argueta did not verbally threaten the Officers, did not shout
obscenities, did not make any sudden movements toward an apparent
weapon, was not visibly agitated and aggressive, nor was there any suspicion
that he was intoxicated. Thus, on the facts before us, there is very little
justification for a reasonable officer “to suspect that [Argueta] would resort
to violence.” Allen, 65 F.4th at 744.
        Indeed, the genuinely disputed facts here undermine the objective
reasonableness of Officer Jaradi’s use of deadly force. For instance, whether
the Officers had reasonable suspicion to stop and detain Argueta for minor
traffic violations certainly weighs against the objective reasonableness of the
use of deadly force. See Goodson v. City of Corpus Christi,

202 F.3d 730, 740

(5th Cir. 2000) (declining to extend qualified immunity to two officers on an
excessive force claim in part because material issues remained as to whether
the officers had reasonable suspicion to detain suspect or probable cause to
arrest him); see also Trammell v. Fruge,

868 F.3d 332, 340

 (5th Cir. 2017)
(concluding a minor offense militated against the use of force). So too does
whether Argueta fled away from the officers toward an empty lot. Poole v.
City of Shreveport,

13 F.4th 420, 425

 (5th Cir. 2021) (“Common sense, and
the law, tells us that a suspect is less of a threat when he is turning or moving
away from the officer.”). The warning, or lack thereof, is also equally
material to the objective reasonableness calculus. See Cole v. Carson,

935 F.3d 444, 453

 (5th Cir. 2019) (en banc) (explaining an officer must give a warning,
where feasible, before using deadly force because a warning is “a critical
component of risk assessment and de-escalation”).
        In short, if the jury views the disputed factors in Argueta’s favor—
concluding that the Officers had no reason to stop and detain Argueta and
that within five seconds of Argueta exiting his vehicle, Officer Jaradi shot him
twice in the back, without warning, as Argueta ran away from the Officers



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                                  No. 22-40781


toward a vacant lot with his right arm obscured from view during flight—then
Officer Jaradi violated Argueta’s clearly established right to be free from
unreasonable seizure. See Poole,

13 F.4th at 426

 (holding that if a jury views
the disputed facts in favor of the plaintiff—“concluding that [the officer]
shot [the suspect], without warning, seeing that he was empty handed and
turning away from the officer”—then the clearly established prong was
satisfied); see also Ziglar v. Abbasi,

137 S. Ct. 1843

, 1866–67 (2017) (explaining
for the particular conduct to be clearly established there need not be a case
directly on point nor is it necessary that “the very action in question has
previously been held unlawful”).
       I therefore respectfully dissent from the majority opinion with respect
to the immateriality of the genuine factual disputes. Accordingly, I would
affirm the district court’s order denying summary judgment to Officer Jaradi
on qualified immunity grounds.




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