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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                   Fifth Circuit

                                                                       FILED
                                                                     June 3, 2020
                                 No. 17-51001
                                                                     Lyle W. Cayce
                                                                          Clerk
MARITZA AMADOR, Individually and as Representative of The Estate of
Gilbert Flores and as Next Friend of Minor R.M.F.; VANESSA FLORES;
MARISELA FLORES; CARMEN FLORES; ROGELIO FLORES,

             Plaintiffs - Appellees

v.

OFFICER GREG VASQUEZ, Individually and in his Official Capacity;
OFFICER ROBERT SANCHEZ, Individually and in his Official Capacity,

             Defendants - Appellants




                Appeal from the United States District Court
                     for the Western District of Texas


                      ON PETITION FOR REHEARING
Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge
      Treating the petition for en banc rehearing as a petition for panel
rehearing, we grant rehearing, withdraw our opinion dated March 11, 2020,
and substitute the following opinion:
      While responding to a domestic violence call, Bexar County Sheriff’s
Deputies Greg Vasquez and Robert Sanchez shot and killed knife-armed
Gilbert Flores after a twelve-minute encounter that ended with Flores
standing nearly thirty feet from the deputies, motionless, and with his hands
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                                        No. 17-51001
in the air. Flores’s wife and other surviving family members (collectively, the
“Estate” or “Plaintiffs”) brought a 42 U.S.C. § 1983 claim against the deputies,
alleging that Vasquez and Sanchez violated Flores’s Fourth Amendment right
to be free from excessive force. The deputies moved for summary judgment
based on qualified immunity. The district court denied the motion, finding
that there were genuine issues of material fact.                  The deputies filed this
interlocutory appeal. Because we agree with the district court that genuine
issues of material fact exist, we lack jurisdiction to review this appeal.
Accordingly, we DISMISS.
                      SUMMARY JUDGMENT EVIDENCE 1
       In 2015, after a domestic dispute between Flores and his wife at Flores’s
mother’s home, Flores’s mother called 9-1-1 for assistance. According to the 9-
1-1 call transcript, Flores’s mother told the dispatcher that Flores beat up his
wife and had “gone crazy”. Deputies Vasquez and Sanchez were dispatched to
the residence in separate vehicles. While in route, dispatch advised Vasquez




       1 These facts are gleaned from the record on appeal and the district court findings.
See Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000) (“In deciding an interlocutory
appeal of a denial of qualified immunity, we can review the materiality of any factual
disputes, but not their genuineness.”) (emphasis in original). The record contains an
audiovisual recording of the encounter filmed by a bystander with a phone. The enhanced
video      may       be      accessed      via       the      following       internet      link:
http://www.ca5.uscourts.gov/opinions/pub/17/17-51001.mp4. We analyze the video evidence
to determine whether it “utterly discredit[s]” the Estate’s version of events such that “no
reasonable jury could have believed [the Estate].” See Scott v. Harris, 550 U.S. 372, 380
(2007); see also Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (“A court of
appeals need not rely on [a] description of the facts where the record discredits that
description but should instead consider the facts in light depicted by the videotape.”) (citation
and internal quotation marks omitted). We determine that the video does not utterly
discredit the Estate’s version of events or the district court’s determinations regarding the
genuineness of facts.
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                                      No. 17-51001
and Sanchez that Flores was upset, and that Flores wanted to commit “suicide
by cop.” 2 Vasquez was also informed that Flores had a knife.
       Twelve minutes elapsed between Vasquez’s arrival and the officers’ fatal
shots at Flores. 3 During those twelve minutes, the deputies had a number of
encounters with Flores, and ultimately deescalated the situation. It was only
after Flores was standing nearly thirty feet from the deputies, motionless, and
with his hands in the air for several seconds that the officers looked at each
other and then decided to shoot Flores. The officers each fired a shot, and
Flores fell to the ground. Viewing the facts in the light most favorable to the
Estate, Tolan v. Cotton, 572 U.S. 650, 655–56 (2014), we summarize the
encounters.
       Encounter #1
       Vasquez arrived at the residence first, went into the house, and had an
altercation with Flores who was holding a fixed blade Ozark Trail knife.
Vasquez attempted to calm Flores and told him, “put the knife down, you’re
going to be alright.”        Flores began approaching Vasquez, and Vasquez
retreated out of the residence.
       Encounter #2
       Not long after Vasquez retreated outside, Flores exited the residence
with the knife in hand and allegedly stabbed at Vasquez, striking Vasquez’s
protective shield. During this altercation, Sanchez arrived. Flores then began
retreating toward the house.




       2 Flores could be heard during the 9-1-1 call saying, “I got a knife and I’m going to
suicide by cop, so bring a SWAT team, or uh uh uh or whoever is going to be ready to pull the
trigger because I’m going to die today.”
       3 Sanchez arrived one minute after Vasquez.

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                                       No. 17-51001
      Encounter #3
      As Flores retreated toward the house, Sanchez fired one shot at Flores
and missed.
      Encounter #4
      Flores went back to the residence, retrieved two metal folding chairs, and
came back outside. While still holding at least one of the folding chairs, Flores
allegedly came at Vasquez with the knife. Vasquez blocked the knife with his
protective shield and deployed his taser at Flores. The taser missed Flores and
hit a chair in Flores’s hand, and its wires became entangled with the chair.
Vasquez then struck Flores with the taser gun and dropped it from his hand.
Flores then went back toward the residence.
      At some point around this time, a bystander began videotaping the
encounter on a phone.
      Encounter #5
      For the first few minutes of the video, Flores, wearing only shorts and
flip flops, and the officers, each holding a gun, talked and maintained distance
from each other: Flores closer to the residence and the officers in or near the
street. Around minute marker 4:20, Flores picked up the two metal chairs and
walked toward the police officers in the street. The officers retreated, walking
backwards away from Flores.              Flores picked up the deployed taser that
Vasquez dropped, walked back to the lawn, dropped the chairs, and chucked
the taser away from the officers. The officers continued to retreat, backing
away from Flores. 4 See Video at 5:20–24.
      Encounter #6
      For over a minute, Flores talked and gestured at the officers from the
lawn area, remaining some distance away from the officers. During this time,


      4   The officers contend that Flores attempted to activate the taser against them.
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                                 No. 17-51001
the officers were not in the video and when they reappeared, they were in the
street beyond the neighbor’s residence. Flores then jogged back toward the
house, picked up the chairs on the lawn, and placed the chairs on the porch.
Around the seven-minute mark, Flores trotted and walked toward the officers’
unlocked patrol SUV, which had an AR-15 inside and keys in the ignition.
While Flores was on the other side of the patrol SUV, he was out of view of the
video recording. The officers, in view, jogged toward the vehicle and Vasquez
pointed his gun at Flores. See Video at 7:10.
      Flores walked away from the vehicle and toward the officers, talking and
gesturing, then went back toward the vehicle. The officers advanced toward
Flores. Flores was out of view of the camera until he again walked away from
the vehicle.   In full view of the video recording, Flores then stood in the
driveway of the residence, some steps away from the SUV, and some distance
from the officers. At 7:32, Flores moved the knife from his right hand to his
left hand. Sanchez had his gun drawn. At 7:33, Flores stood stationary in the
driveway.
      Encounter #7
      At 7:34, Flores was stationary in the driveway, approximately thirty feet
from Vasquez, who was in the street with a protective shield and drawn gun.
Sanchez was approximately thirty feet from Flores as well. Flores was closer
to the SUV than he was to the officers. At 7:35, Flores, still stationary in the
driveway, put both arms up in the air with his hands above his head and the
knife in his palm and remained motionless. There was nothing behind the
officers hindering their ability to retreat backwards. For about five seconds,
Flores did not advance toward the officers, the vehicle, or the home.
      Encounter #8
      While Flores stood motionless with his hands in the air, Sanchez turned
to look toward Vasquez. At about 7:37, Vasquez and Sanchez fatally shot
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                                 No. 17-51001
Flores, who stood motionless in a surrender pose. Flores fell backward onto
the pavement.
                         PROCEDURAL HISTORY
      The Estate sued the county and the officers under § 1983 for excessive
force. The county and the officers moved for summary judgment. The officers
argued that they were entitled to qualified immunity.        The district court
granted the county’s motion and denied the officers’ motion. In denying the
officers’ request for qualified immunity, the district court determined there
were genuine issues of material fact, and construing the facts in favor of
Plaintiffs, the deputies’ use of deadly force was objectively unreasonable. The
district court found that the deputies’ use of deadly force was unreasonable
because Flores, “who was stationary for several seconds and put his hands in
the air while remaining otherwise motionless, was no longer resisting and had
signaled surrender.” The officers now appeal.
             JURISDICTION AND STANDARD OF REVIEW
      This court has jurisdiction over appeals from a district court’s final
decision. 28 U.S.C. § 1291. “Ordinarily, [this court does] not have jurisdiction
to review a denial of a summary judgment motion because such a decision is
not final within the meaning of 28 U.S.C. § 1291.” Perniciaro v. Lea, 901 F.3d
241, 250 (5th Cir. 2018) (citation and internal quotation marks omitted).
“However, the ‘denial of qualified immunity on a motion for summary
judgment is immediately appealable if it is based on a conclusion of law.’” Id.
(quoting Palmer v. Johnson, 193 F.3d 346, 350 (5th Cir. 1999)). “We have no
jurisdiction to hear an interlocutory appeal, however, when a district court’s
denial of qualified immunity rests on the basis that genuine issues of material
fact exist.” Michalik v. Hermann, 422 F.3d 252, 257 (5th Cir. 2005).
      “Because of this case’s posture . . . review is limited to determining
whether the factual disputes that the district court identified are material to
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                                  No. 17-51001
the application of qualified immunity.” Samples v. Vadzemnieks, 900 F.3d 655,
660 (5th Cir. 2018) (emphasis omitted); see also Mitchell v. Mills, 895 F.3d 365,
369 (5th Cir. 2018) (concluding that the court’s “review is limited to evaluating
only the legal significance of the undisputed facts”).
      This court accepts “plaintiff’s version of the facts as true and [reviews
the facts] through the lens of qualified immunity.” Samples, 900 F.3d at 660.
“If the defendant would still be entitled to qualified immunity under this view
of the facts, then any disputed fact issues are not material, the district court’s
denial of summary judgment was improper, and [this court] must reverse;
otherwise, the disputed factual issues are material and [this court] lack[s]
jurisdiction over the appeal.” Lytle v. Bexar County., 560 F.3d 404, 409 (5th
Cir. 2009). Put another way, “[i]f a factual dispute must be resolved to make
the qualified immunity determination, that fact issue is material and we lack
jurisdiction over the appeal.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir.
2009).
      The court reviews materiality and legal conclusions de novo. Hampton
v. Oktibbeha Cty. Sheriff Dep’t, 480 F.3d 358, 364 (5th Cir. 2007). The “scope
of clearly established law and the objective reasonableness of those acts of the
defendant that the district court found the plaintiff could prove at trial are
legal issues we review de novo.” Thompson v. Upshur County., 245 F.3d 447,
456 (5th Cir. 2001).
                                 DISCUSSION
      “Qualified immunity shields from liability ‘all but the plainly
incompetent or those who knowingly violate the law.’”         Romero v. City of
Grapevine, 888 F.3d 170, 176 (5th Cir. 2018) (quoting Malley v. Briggs, 475
U.S. 335, 341 (1986)).     “In determining whether an officer is entitled to
qualified immunity, courts engage in a two-step inquiry.” Id. “The first asks
whether the facts, ‘[t]aken in the light most favorable to the party asserting
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                                       No. 17-51001
the injury, . . . show the officer’s conduct violated a [federal] right [.]’” Tolan,
572 U.S. at 655–56 (quoting Saucier v. Katz, 533 U.S. 194, 201 (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 (2002)).
I.     The Officers Violated Flores’s Fourth Amendment Right
       The first question in the qualified immunity analysis is whether Officers
Vasquez and Sanchez violated Flores’s Fourth Amendment right to be free
from excessive force. 5 See Romero, 888 F.3d at 176. When the facts here are
taken in the light most favorable to Plaintiffs, the answer is yes.
       “The use of deadly force violates the Fourth Amendment unless ‘the
officer[s] [have] probable cause to believe that the suspect poses a threat of
serious physical harm, either to the officer[s] or to others.’”                 Id. (quoting
Tennessee v. Garner, 471 U.S. 1, 11 (1985)). To prevail on an excessive force
claim, plaintiffs must show that the force employed was objectively
unreasonable. Graham v. Connor, 490 U.S. 386, 397 (1989). “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.”
Darden, 880 F.3d at 728 (citation and internal quotation marks omitted). “In
making this determination, a court should consider 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 he is actively resisting arrest or attempting to evade arrest by flight.’”
Id. at 728–29 (quoting Graham, 490 U.S. at 396). “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. at 729


       5Because it is alleged that the officers acted in unison, we need not separately address
the qualified immunity analysis for each officer. See Darden v. City of Fort Worth, 880 F.3d
722, 731 (5th Cir.), cert. denied sub nom. City of Fort Worth v. Darden, 139 S. Ct. 69 (2018).
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                                  No. 17-51001
(citation and internal quotation marks omitted).               “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, 585 F.3d at 843
(citation and internal quotation marks omitted).
      Further, “[i]t is well-established that ‘[t]he excessive force inquiry is
confined to whether the [officers or other persons were] in danger at the
moment of the threat that resulted in the [officers’ 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
omitted). So, the focus of the inquiry should be on “the act that led [the officer]
to discharge his weapon[.]” Manis, 585 F.3d at 845.
      Applying that framework, the district court found three genuine disputes
of material fact that barred qualified immunity because resolving those facts
in Plaintiffs’ favor led the court to conclude that shooting Flores was objectively
unreasonable.    The district court found the relevant, genuine disputes of
material fact to be: (1) “whether Flores did open the door or did look inside to
see the keys in the ignition or see the weapon that was inside the SUV”; (2)
whether Flores tried to activate the taser against the officers; and (3) what
occurred in the moments before the deputies shot Flores.
      Considering the totality of the circumstances, focusing on the act that
led the officers to discharge their weapons, and without reviewing the district
court’s decision that genuine factual disputes exist, see Kinney v. Weaver, 367
F.3d 337, 348 (5th Cir. 2004), we conclude that the genuine issues of material
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                                       No. 17-51001
fact identified by the district court are material, and this case should proceed
to trial.
       Relying on their version of the facts, yet purportedly relying on the video,
the officers argue that they reasonably believed that Flores posed a threat of
serious harm to the officers or to others. 6 According to the officers, Flores
“opened the front passenger door of the Tahoe Patrol vehicle of Deputy
Vasquez, [sic] said vehicle had the keys in the ignition and an AR-15 inside the
vehicle.” They further contend that Flores “picked up Deputy Vasquez’ [sic]
taser from the street and attempted to activate it against Deputy [sic] Vasquez
and Sanchez but was unsuccessful.” Most significantly, the officers assert that
“Deputies Vasquez and Sanchez were in imminent fear of death or serious
bodily injury by the actions of Gilbert Flores at the time of the fatal shots.”
(emphasis added). However, Plaintiffs assert that at the time Flores was shot,
Flores was not next to the patrol car, Flores had “raised both of his hands
directly above his head with the knife ‘palmed’ in his left hand” and “raised his
hands in apparent surrender, stood still, his hands were not moving, his feet
were not moving, he was not moving or advancing toward the Deputies and no
family members of [sic] neighbors were outside or in the vicinity.”
       Collectively, these factual disputes are material to resolving whether the
officers reasonably believed that Flores posed a threat of serious harm at the
time of the shooting. Construing the facts in Plaintiffs’ favor, the district court
found that a “reasonable officer would have concluded that Flores, who was
stationary for several seconds and put his hands in the air while remaining
otherwise motionless, was no longer resisting and had signaled surrender.” We
agree.


       6 The officers present different “scenarios” that would have justified them using
“deadly force.” We refuse to speculate on whether it would have been reasonable to kill Flores
in those scenarios, which are not before this court.
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                                   No. 17-51001
        Flores had a knife, not a gun; was several feet away from the officers, the
house, and the vehicle; had his hands in the air in a surrender position; and
stood stationary in the officers’ line of sight. Under these facts taken in the
light most favorable to Plaintiffs, we conclude that the district court correctly
identified material factual disputes as to whether the officers violated Flores’s
Fourth Amendment rights. Accordingly, we must address the second question
of the analysis.
II.     Flores’s Fourth Amendment Right Was Clearly Established
        The second question in the qualified immunity analysis is whether
clearly established law prohibited the officers from shooting Flores in these
circumstances. City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019).
Again, the answer is yes.
        “A clearly established right is one that is ‘sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting
Reichle v. Howards, 566 U.S. 658, 664 (2012)). We cannot “‘define clearly
established law at a high level of generality,’” id. (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 742 (2011)), especially in “the Fourth Amendment context, where
the Court has recognized that ‘[i]t is sometimes difficult for an officer to
determine how the relevant legal doctrine, here excessive force, will apply to
the factual situation the officer confronts,’” id. (quoting Katz, 533 U.S. at 205).
“Where constitutional guidelines seem inapplicable or too remote, it does not
suffice for a court simply to state that an officer may not use unreasonable and
excessive force, deny qualified immunity, and then remit the case for a trial on
the question of reasonableness.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)
(per curiam). “An officer ‘cannot be said to have violated a clearly established
right unless the right’s contours were sufficiently definite that any reasonable
official in the defendant’s shoes would have understood that he was violating
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                                  No. 17-51001
it.’” Id. (quoting Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014)). We do
“not require a case directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate.” Id. at 1152 (citation
and internal quotation marks omitted).
      “[T]he salient question . . . is whether the state of the law in [2015] gave
[the officers] fair warning that their alleged treatment of [Flores] was
unconstitutional.” Hope, 536 U.S. at 741. “[G]eneral statements of the law are
not inherently incapable of giving fair and clear warning” to officers. Id. In
fact, “officials can still be on notice that their conduct violates established law
even in novel factual circumstances.” Id. “[T]here can be the rare obvious case,
where the unlawfulness of the officer’s conduct is sufficiently clear even though
existing precedent does not address similar circumstances[.]” Emmons, 139 S.
Ct. at 504 (citation and internal quotation marks omitted).
      “In the excessive force context, a constitutional violation is clearly
established if no reasonable officer could believe the act was lawful.” Darden,
880 F.3d at 727. “Our case law makes clear that when an arrestee is not
actively resisting arrest the degree of force an officer can employ is reduced.”
Id. at 731; see Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008) (holding that
it was objectively unreasonable for an officer to slam an arrestee’s face into a
vehicle when the arrestee “was not resisting arrest or attempting to flee”);
Newman v. Guedry, 703 F.3d 757, 760, 763 (5th Cir. 2012) (holding that it was
objectively unreasonable for officers to tase an arrestee when the arrestee’s
“behavior did not rise to the level of ‘active resistance,’” despite the arrestee’s
alleged noncompliance with orders).
      Every reasonable officer would have understood 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 officers argue that they were justified in using deadly
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                                   No. 17-51001
force because Flores posed an immediate threat at several instances before
their ultimate use of deadly force. However, “an exercise of force that is
reasonable at one moment can become unreasonable in the next if the
justification for the use of the force has ceased.” Lytle, 560 F.3d at 413. To say
otherwise would grant officers “‘an ongoing license to kill an otherwise
unthreatening suspect’” who was threatening earlier. Id. (quoting Abraham v.
Raso, 183 F.3d 279, 294 (3d Cir. 1999)).
      In Lytle, taking the facts in the light most favorable to the plaintiff, we
found that the officer could have “had sufficient time to perceive that any
threat to him had passed by the time he fired[,]” which was “anywhere from
three to ten seconds, perhaps even more” after the perceived threat, rather
than “in near contemporaneity” with the perceived threat. 560 F.3d at 414
(citation and internal quotation marks omitted). Here, Vasquez and Sanchez
had about five seconds to evaluate Flores, standing thirty feet away from them
with a knife and with his hands in the air, before shooting him. At the time of
the shooting, Flores’s right in this case was “‘sufficiently clear that every
reasonable official would have understood that what [the officers did] violate[d]
that right.’” Mullenix, 136 S. Ct. at 308 (quoting Reichle, 566 U.S. at 664).
      We find that if a jury accepts Plaintiffs’ version of the facts as true,
particularly as to what occurred in the moments before the deputies shot
Flores, the jury could conclude that the officers violated Flores’s clearly
established right to be free from excessive force. See Cole v. Carson, 935 F.3d
444, 447, as revised (5th Cir. Aug. 21, 2019) (en banc) (“We conclude that it will
be for a jury, and not judges, to resolve the competing factual narratives as
detailed in the district court opinion and the record as to the . . . excessive-force
claim.”). Accordingly, there are factual disputes that must be resolved to make
the qualified immunity determination, disputes that are material, and we lack
jurisdiction over this interlocutory appeal. See Manis, 585 F.3d at 843.
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                               No. 17-51001
                             CONCLUSION
     Because there are genuine issues of material fact that preclude summary
judgment, we lack jurisdiction to review this appeal and DISMISS.




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